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M/s. Udita Home Owner's Association, Kolkata & Another v/s M/s. Bengal Ambuja Housing Development Limited, Kolkata & Others

    Consumer Case No. 369 of 2013
    Decided On, 22 February 2022
    At, National Consumer Disputes Redressal Commission NCDRC
    By, THE HONOURABLE MR. C. VISWANATH
    By, PRESIDING MEMBER & THE HONOURABLE MR. JUSTICE RAM SURAT RAM MAURYA
    By, MEMBER
    For the Complainants: Ishaan Saha, Snehasish Mukherjee, Suraj Nag, Advocates. For the Opposite Parties: Sanjoy K. Ghosh, Rupali S. Ghosh, Advocates.


Judgment Text
1. Complainant No.1 is an Association registered under the West Bengal Apartments Ownership Act, 1972. Opposite Party No.1 is a company incorporated under the Companies Act, 1956 engaged in the business of real estate and development. Opposite Party No.2 is Udita Owners Association run by Opposite Party No.1. Opposite Parties Nos.3 to 8 are Executive Committee Members of Opposite Party No.2/Association.

2. The case of the Complainants is that Opposite Party No.1 built a residential complex consisting of 718 apartments. During 2000 to 2002, the allottees collectively deposited an amount of Rs.3.73 crores as Maintenance Corpus Deposit (MCD). As per sub-clause 17B and 17C of the Agreement, Opposite Party No.1 transferred the Maintenance Corpus Deposit in the name of Opposite Party No.2 in May, 2012. As per Contract, Opposite Party No.1 was required to form an Association and transfer the Maintenance Corpus Deposit to the said Association. Opposite Party No.2 formed “Udita Owners Association” (Opposite Party No.2) and transferred the Maintenance Corpus Deposit in its name. Opposite Party No.1 was required to transfer Maintenance Corpus Deposit with average interest of 12.89%. Calculation of interest was made on the basis of area constructed in each phase and the interest promised to be paid by Opposite Party No.1. The affairs of Opposite Party No.2 were managed by Opposite Party No.1. On 13.05.2010, Complainant No.1 Udita Home Owners Association was formed. Inspite of formation of Complainant No.1 Association, Opposite Parties refused to make over the said Maintenance Corpus Deposit to Complainant No.1.

3. Apartment owners of Complainant No.1 Association filed Suit No.872/2011 before the District Judge, Alipore. Said suit was decided in favour of Complainant No.1, vide order dated 26.09.2011. Against the order of the District Judge, Opposite Party No.2 filed an Appeal before Hon’ble High Court, Kolkata, which was disposed of, vide order dated 14.12.2011, directing Opposite Parties Nos. 1 & 2 to forthwith make over the said Maintenance Corpus Deposit alongwith further interest to Complainant No.1 alongwith entire accounts from the date of inception. In spite of order dated 14.12.2011 passed by Hon’ble High Court, Opposite Party No.2 failed to make over the said Maintenance Corpus Deposit to Complainant No.1. On 07.05.2012, Opposite Party No.2 sent a cheque for Rs.3,23,03,242.05 to Complainant No.1 against Maintenance Corpus Deposit. On 14.05.2012, Complainants sent a letter to Opposite Party No.1 demanding balance payment of Rs.12,49,16,608.96. Opposite Party No.1, vide letter dated 14.06.2012 replied that there was no due against Maintenance Corpus Deposit. Alleging deficiency in service and unfair trade practice on the part of the Opposite Parties, Complainants filed instant Consumer Complaint with the following prayer: -

“a) An award of Rs.1,61,37,704/- to be paid by the Respondents jointly and severally;

b) An award for ad interim interest and interest onwards at the rate of 12.89% p.a. calculated on and from 25th October, 2013;

c) An award for Attachment;

d) An award for Injunction;

e) An award for appointment of Receiver;

f) An award for Costs; and/or

g) Any further and other reliefs as this Hon’ble Commission may deem just and proper in the interest of justice.”

4. The Complaint was contested by the Opposite Parties by filing separate written statements. Opposite Party No.2 filed IA/3848/2014 challenging the maintainability of the Consumer Complaint.

5. Heard Learned Counsel for the Parties on maintainability of the Consumer Complaint and carefully perused the record. Learned Counsel for the applicant/Opposite Parties submitted that there is no relation of “Consumer” and “Service provider” between the Parties. It was also submitted that no consumer dispute was involved in the case, therefore, the Complaint was not maintainable before the Consumer Court. Learned Counsel submitted that in the Complaint there was no allegation regarding deficiency in service or defect in goods. It was further submitted that the dispute in question had already been finally decided by Hon’ble High Court, Kolkata. The instant Complaint is, therefore, barred by the principle of res judicata.

6. Learned Counsel for the non-applicant/Complainant submitted that the Complaint had already been admitted by this Commission, vide order dated 03.04.2014. The issue of maintainability was never raised by the Opposite Parties. This Commission, vide order dated 25.10.2017 ordered that “the issue of maintainability shall be decided after the parties have led their evidence.” Since the Parties have not led the evidence, the issue of maintainability should not be decided at this stage. The Complainant is an Association and is a Consumer under Section 12 (1) (b) of the Consumer Protection Act, 1986. With regard to the relation of “Consumer” and “Service provider” Learned Counsel relied on the judgment of this Commission in Neela Vasant Raje vs. Amogh Industries & Anr. (1986) 95 Consumer 446. He further submitted that the term “service” included “service of any description” other than service rendered free of charge. He also relied on the judgment of Hon’ble Supreme Court in Lucknow Development Authority vs. M.K. Gupta and submitted that the Builder/Developer is liable for “any act or omission” relating to housing activity. The Maintenance Corpus Deposit was an integral part of the terms and conditions for booking the apartments. The interest claimed on Maintenance Corpus Deposit is therefore, covered under the consumer dispute. Learned Counsel further submitted that Consumer Complaints seeking interest for delay in handing over the possession are entertained by this Commission. It was also submitted that the relief sought in the suit filed before the Civil Court were entirely different from the relief sought in the instant Consumer Complaint. The Consumer Complaint is, therefore, not barred by the principle of res judicata.

7. We proceed to deal with the grounds on which the issue of maintainability has been raised by the Opposite Parties. The Opposite Party alleged that there was no relation of “Consumer” and “Service provider” between the Parties. Complainant is a registered Association. Its Members are flat owners and signed agreement with Opposite Party No.1, who developed the project and allotted the flats. Admittedly, Opposite Party No.2 Association was formed by Opposite Party No.1. The reliefs sought in the instant Complaint also arise from the agreement between the Parties. The Complainants are, therefore, held to be “Consumers” and the Opposite Parties “Service providers.”

8. Next ground taken in the application is that there is no allegation regarding deficiency in service or defect in goods. Terms and conditions of the agreement also included “Maintenance Corpus Deposit.” Complainants alleged that Opposite Party No.1 was required to transfer Maintenance Corpus Deposit with average interest of 12.89% while Opposite Party No.1 returned the same with interest of less than 5%. There is clear allegation by the Complainants of unfair trade practice on behalf of the Opposite Parties. The argument of Opposite Parties that there is no allegation of deficiency in service or defect in goods is rejected.

9. The last issue on maintainability raised by the applicant/Opposite Party is that the Complaint is barred by the principle of res judicata, as the Complainants filed a suit before the District Judge Alipore and the matter went upto High Court, Kolkata. In this regard, order dated 14.12.2011 passed by Hon’ble Kolkata High Court is relevant which read as follows:-

“In order to do justice with all the members of the said Association including the plaintiffs, we direct that the said fund should be transferred to the Association and further we direct the said Trust to furnish the Accounts from the date of its inception till the date of the handing over of the fund to the Association and a copy of the said Accounts should be furnished to the Association as well as the plaintiffs/respondents.”

10. Fr

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om the above, it is seen that one of the main disputes in the suit filed by the Complainant/Association was transfer of “Maintenance Corpus Deposit.” Civil Court granted the said relief, which was upheld by the High Court in Appeal filed by Opposite Party No.2. In para 20 of the Complaint, Complainants submitted that inspite of directions of the High Court Opposite Party No.2 failed to make over the said maintenance corpus deposit to the Complainants and it was done only after the Complainants sent letter dated 13.04.2012. Thereafter, several letters were exchanged between the Complainants and the Opposite Parties regarding transfer of balance amount, including interest. Since the issue in the Consumer Complaint is no more res integra, the Complaint is held not maintainable before this Commission and is dismissed. However, the Complainants are at liberty to avail appropriate remedy available to them under law.
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