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Priyanti Construction & Others v/s Swapna Saha & Others

    Interlocutory Application No. 807 of 2019

    Decided On, 18 April 2022

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE MANOJIT MANDAL
    By, PRESIDENT & THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER

    For the Appellanst: None appears. For the Respondents: Suparna Bhattacharjee, S.K. Biswas, Advocates.



Judgment Text

This Interlocutory Application has been filed by the petitioners/Opposite Parties no. 1 to 4 for dismissal of the original Complaint Case on the ground that the Complaint case is not maintainable in law.

The facts, to be taken notice of for the disposal of the present application, are that the complainant filed the Complaint case under the Consumer Protection Act, alleging therein deficiency on the part of petitioners/OPs no. 1 to 4. The OP Nos. 1 to 4 appeared in the Complaint case and filed Written version.

The Petitioners/OPs no. 1 to 4 has filed the instant application praying for dismissal of the Complaint case as the Complaint case is not maintainable.

The complainant filed written objection against the application challenging the maintainability of the original complaint filed by the petitioners/OP no.1 to 4.

We have heard the Ld. Advocate appearing for the petitioners. Also heard the Ld. Advocate appearing for the respondent/complainant.

It has been submitted by the ld. Advocate for the petitioners that the Complaint is not maintainable either in law or in facts. The complainant has assessed the valuation of the Complaint at Rs.71,11,876/- considering her own flat only, while, the complainant has prayed for common reliefs. He has further submitted that the valuation of four flats have not been considered which have been constructed in the 5th and 6th floor. He further submitted that the complainant had filed this Complaint in her individual capacity only but had prayed for adjudication of common issues and have further prayed for common reliefs. He further submitted that the complainant/land owner has indulged in a “Joint Venture Housing Project” and as such the complainant cannot be given the colour of a consumer. He further submitted that the complainant, the land owner along with other four co-owners had receiving a sum of Rs.50 lakhs in such Joint venture and had made monetary gain/profit. The complainant do not have the locus standi of a consumer . He further submitted that the respondent/complainant had shared the profit earned out of such Joint venture with the Developer and such profit sharing debars the complainant to lodge any claim in guise of a consumer. So, the complaint filed by the complainant is not maintainable and complaint should be dismissed.

On the other hand, ld. Advocate appearing for the Respondent no.1/complainant has contended that the instant application is not maintainable in law. He further contended that the petition is based upon all the false and fabricated allegations. So, the application challenging the maintainability of the original complaint should be dismissed.

Upon hearing both sides and on perusal of the materials on record we find that the Complainant/respondent has filed the Complaint claiming reliefs for her portion only and she has prayed for enforcement of the agreement so far it relates to her. This being the situation, the valuation of the instant Complaint case has been shown in her portion only. She has not showed the valuation of the whole property which includes other co-sharers who are not seeking any reliefs before us. It also appears from the Complaint case filed by the Respondent/complainant that respondent/complainant never claimed any relief of handing over 5th and 6th floor or any flat lying and situated in the 5th and 6th floor. As such, flats lying and situated in the 5th and 6th floor cannot be considered for the assessment of the valuation of the complaint case. It also appears that from the Written version submitted by the Proforma respondents no. 5 to 8 that they have got the physical possession of their allocation in the respective flats and /or shops and/or car parking space from the petitioners/OP no.1 to 4 at the case premises. Since, the respondent no.1/complainant have not got the possession of her allocation as per the agreement between the parties, the respondent/complainant was compelled to file the instant Complaint case in individual capacity. The petitioners/Developers are bound to provide services by following the terms and conditions of the Development agreement and the developers are service providers and the land owners are consumers and there is no commercial transaction between the Developers and the land owners.

Where the builder commits breach of his obligations, the owner has two options. He has the right to enforce Specific Performance and/or claim damages by approaching Civil Court. Or he can approach the Commission under the Consumer Protection Act, for reliefs as Consumer, against the builder as a service-provider. Section 3 of the Consumer Protection Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the complainant.

We have already discussed in our foregoing paragraphs that the other co-owners have already got their respective possession as per the terms and conditions of the Development Agreement and they have no claim against the petitioners/OP no.1 to 4 and the Proforma respondent no.5 to 8 frankly stated the same in their Written version filed by them. Since the respondent no.1/complainant did not

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get her respective flat and car parking space, the respondent no.1/complainant has the right to file the instant Complaint in the individual capacity and the relief of the respondent no.1/complainant is not a common relief. Under the facts and circumstances and on consideration of the materials on record, we are of the view that the maintainability application is not at all maintainable and is liable to be dismissed. In the result – the I.A. being 807 of 2019 is dismissed on contest with no order as to costs. The IA is thus disposed of accordingly.
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