w w w . L a w y e r S e r v i c e s . i n



Rama Saha v/s M/s. Dream Dwellings & Others


Company & Directors' Information:- R AND R DWELLINGS PRIVATE LIMITED [Active] CIN = U45201UP2006PTC031731

Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B. R. DWELLINGS PRIVATE LIMITED [Active] CIN = U45400WB2010PTC152578

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

Company & Directors' Information:- J P DWELLINGS PRIVATE LIMITED [Strike Off] CIN = U70101MP2001PTC014701

    Complaint Case No. CC/419/2014

    Decided On, 15 March 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Complainant: R.K. Choumal., Advocate. For the Opp. Party: Siddhartha Kr. Chakraborty, Advocate.



Judgment Text

The instant complaint Under Section 17 of the Consumer Protection Act, 1986 ( for brevity, 'the Act') is at the behest of a landowner against the developer/construction firm and its partners on the allegation of deficiency in services on the part of them in a dispute of housing construction .

In a nutshell, complainant’s case is that on 05.06.2006 she had appointed the Opposite Parties to construct a multi-storied building in a plot of land owned by her being premises no.133, New Santoshpur, P. S. – Purba Jadavpur, Kolkata – 700 075, District – South 24 – Parganas within the local limits of Kolkata Municipal Corporation ( KMC) for raising a 3 storied building thereon. In terms of the said agreement, the OPs were supposed to get ground + 3 storied building to be erected and constructed and in lieu of cost of construction, the OPs were supposed to get the right to sale all flats being 8 flats and car parking spaces save and except one flat being no.F3 having an area of 710.90 sq.ft. along with one car parking space in the ground floor measuring about 194.192 sq.ft. In the agreement, it was stipulated that the complainant is entitled to 40 % of the sanctioned area, aggregating to 2436.60 sq.ft. out of which one flat measuring about 710.90 sq.ft. + a car parking space measuring 194.192 sq.ft. and balance 1742.70 sq.ft. shall be converted in money and paid by the OPs at a rate of a price calculated @ average sale proceeds of all the flats, proposed to be constructed, within 7 days from obtaining Completion Certificate/Occupancy Certificate from the KMC. It was agreed that in an event of failure, the complainant would be entitled to a sum of Rs. 10,000/- p.m. Subsequently, complainant executed a General Power of Attorney authorising the OPs to enter into agreement for sale in respect of 1742 sq.ft. and to deposit the sale proceeds in the complainant’s account. The complainant states that the construction was carried on smoothly without any interruption but after delay of 15 months from the agreed period of 18 months from the date of execution of the agreement from the project was completed. The complainant states that she has received an amount of Rs. 1,25,000/- being non-adjustable from the owner’s allocation. The complainant alleged that the developer has sold away all the flats excepting flat no.F3 i.e. the flat of the complainant to the prospective buyers declared only 55-65% of sale proceeds in the respective deeds of conveyance. It is also alleged that the OPs deliberately transferred flat nos. F1 and F2 on the back side of 1st floor in incomplete state in order to deprive the complainant from highest marketable sale proceeds. It has further alleged been by the complainant that no formal possession letter was issued by the OPs to her to take possession of owner’s allocation and also no statement of accounts calculated on the average sale proceeds was ever supplied. The complainant has stated that she is entitled to get money of 1742.7 sq.ft at a price calculated on the average sale proceeds amounting to Rs. 1656.90 per sq.ft. But she has received only a sum of Rs. 15,00,000/-. Hence, the complainant has come up in this Commission with prayer for several reliefs, viz.- (1) a direction upon OPs to pay sum of Rs.28,87,645/- being calculated at Rs. 1656.90 per sq.ft. x 1742.7 + Rs.75,000/- being liquidated damages for delay being calculated Rs. 5,000/- x 15 ( from 16.07.2008 to 01.10.2009 ) + Rs. 6,10,000/- being calculated @ Rs. 10,000/- p.m. ( from 10.10.2009 to October, 2014 ) total being Rs. 35,72,645/- less Rs. 15,00,000/- = Rs.20,72,645/- along with interest @ 12% p.a. ,( b) to handover possession letter, the authenticated copy of the sanctioned plan and Completion Certificate ; (c) compensation of Rs. 5,00,000/- ,(d) litigation cost of Rs. 30,000/- etc.

The Opposite Parties by filing a joint written version have stated that they have paid a sum of Rs. 1,25,000/- on 04.11.2015 to the complainant and a Memorandum of Understanding was executed for development of the complainants landed property in presence of her husband and daughter on 05.07.2006. The OPs have stated that after obtaining sanctioned building plan on 16.12.2006, they have constructed and completed the building project partly G+3 and partly 3 storied building and completed the said building within the expiry of the month of October, 2008. The KMC after completion of all its formalities duly issued a Completion Certificate on 27.11.2008. The OPs have stated that as per instruction of complainant they sent one copy of Completion Certificate along with the possession letter dated 01.12.2008 regarding delivery of allotted flat and car parking space to the complainant by Post. The OPs have stated that the complainant has asked for extra internal work at the extra cost but the said cost has not been paid to them. It has further been stated that they have already paid Rs.16,25,000/- to the complainant and as such as there was no deficiency, the complaint should be dismissed with cost.

On the prayer of complainant, the contents of petition of complaint supported by affidavit was admitted in evidence. The complainant has given reply against the questionnaire set forth by the OPs. On behalf of OPs, Sri Susanta Mondal, OP No.2 tendered evidence through affidavit. He has also given reply against the questionnaire put forward by the complainant. At the time of final hearing, both the parties have filed Brief Notes of Arguments.

Undisputedly, complainant is the owner of a piece of land measuring about 5 cottahs 1 chittak lying and situated at premises no. 133, New Santoshpur, P. S. – Purba Jadavpur, Kolkata – 700 075, District – South 24 – Parganas within the local limits of KMC. On 05.07.2006, the complainant has entered into an agreement with the OP No.1, a construction firm, being represented by its partners ( OP Nos. 2 & 3 ) for raising a multi-storied building thereon. On the same day, i.e. on 05.07.2006, the complainant also executed a Power of Attorney in favour of OP No .2, one of the partner of OP No.1. It is also not in dispute that after completion of all formalities, a permission from the KMC in the form of sanctioned building plan was obtained to that effect on 16.12.2006. After obtaining the sanctioned building plan, the OPs started construction and ultimately constructed the said building viz partly G + 3 and partly 3 storied building.

Now, as per schedule set out in the agreement, the OPs were under obligation to handover 40% of the sanctioned residential area i.e. 2453.6 sq.ft. in form of one self – contained flat measuring about 710.90 sq.ft. being no.F3 on the 2nd floor with one open car parking space measuring 194.162 sq.ft. to the complainant on the ground floor and the remaining residential area i.e. 1742.7 sq.ft. of the owner’s allocation was to be sold by the OPs and shall pay the complainant average price calculated @ all the flats of the proposed new building within 7 days from the date of obtaining building Completion Certificate from the KMC, beside Rs.1,25,000/- as earnest money prior to execution of the agreement.

In the agreement, it was stipulated that the OPs shall complete the building within 18 months from the date of obtaining sanctioned plan or handing over the possession by the complainant whichever is later and in the event the said requisite is not complied with, the OPs shall pay a demurrage @ Rs.5,000/- for each and every months delay in construction. It was also stipulated that OPs will sold the remaining residential area, i.e. 1742.7 sq.ft. of owner’s allocation and shall pay the complainant average price calculated at the rate of all the flats of the proposed new building within 7 days from the date of obtaining building Completion Certificate from the KMC and in the event of failure to comply with the same, the OPs shall pay a demurrage @ RFs.10,000/- p.m. for each and every month in addition to the price of the flats of owner’s allocation.

The OPs took a plea that they have already paid Rs. 16.25,000/- to the complainant and they had duly served the copy of Completion Certificate along with possession letter to the complainant. However, Ld. Advocate for the OPs has submitted that if a direction is given to the OPs to hand over the copy of C.C. and possession letter to the complainant in that event the OPs are ready to serve the same upon the complainant. The OPs also took a plea that one intending purchaser named Sri Ganesh Chandra Pal lodged a complaint being CC/179/2010 and challenging the same order, the complainant preferred an appeal being FA/283/2013 pending for consideration in this Commission. Ld. Advocate for the OPs has finally submitted that they duly performed their obligations as per agreement dated 05.07.2006 by taking proper steps and complying all formalities and as such question of deficiency in services and/or unfair trade practice on the part of OPs does not arise at all.

It is trite law that the parties are bound by the agreement. Either of the parties did not pick up any quarrel as to the terms of the agreement and they have signed the agreement with open eyes after evaluating all the terms and conditions contained therein and therefore, they must obey or fulfil all their obligations in its latter and spirit.

What I find from annexure –‘ A ‘ to the written version that on 01.12.2008 the OPs wrote a letter to the complainant delivering her copy of Completion Certificate and possession letter. The said letter does not contain the signature of complainant . The OPs have failed to show any postal receipt or any acknowledgement card in respect of delivery of the said letter to the complainant. Therefore, it can be safely presumed that the said letter has been prepared or manufactured by the OPs for wrongful gain. The OPs have also claimed an amount of Rs. 2,66,396/- as extra work done by them for the complainant for her allocated flat but to that effect the OPs have failed to show any document that the complainant has ever requested them for such extra work. In a question – ' Do you have any document to show that complainant had requested you to do any extra work in her allocated flat ?' to which the OP No.2 has made an evasive answer without producing any document to that effect and as such an adverse inference should be drawn against the OPs.

As per terms of the agreement, the OPs were supposed to give letter of possession and Completion Certificate within 7 days from the date obtaining Completion Certificate. The OPs have obtained the Completion Certificate on 27.11.2008. Therefore, to overcome the situation OPs have manufactured the letter dated 01.12.2008 ( Annexure – ‘A’ to W.V. ).

The OPs have adopted an unfair means by not producing the sale deeds in respect of 7 flats to the buyers as per authority given by the complainant. The OPs by their letter dated 01.10.2009 has mentioned the sale proceeds calculated at the rate 1227 per sq.ft. and the same comes to a total of Rs. 21.,38,438/-. The OPs have claimed additional expenses of Rs. 2,66,396/- but miserably failed to show any authority given by the complainant for any extra work. Even by that letter the OPs have admitted that the complainants are entitled to Rs. 2,47,042/- but the same has also not been paid.

The OPs /developer may have several allegations against the landowner but he cannot be the Judge of his own cause and stall the payments with transparent manner. The OPs have tried to convince that they have paid Rs. 16,25,000/- to the complainant but on perusal of the agreement it would reveal the amount of Rs. 1,25,000/- was paid prior to execution of development agreement and it has no bearing with the sale proceeds of 7 flats.

The evidence on record clearly indicates that the OPs tried to suppress the truth. The OPs did not take any step to produce the authenticated copy of deed of conveyance in respect of flats and car parking spaces of the said premises to ascertain the aggregate average rate of all the 7 flats according to which complainant is entitled for sale proceeds of 1742.7 sq.ft. of the sanctioned area. On the contrary, in order to show her bonafide, complainant has filed all the deed of conveyances executed by the OPs in favour of different buyers of the flat and has been able to substantiate that she is entitled to Rs. 28,87,645/- @ 1656.90 per sq.ft. for 1742.7 of the total sanctioned area. However, when complainant is already in possession of her flat being flat no.F3 on the 2nd floor and she has not made it clear in her complaint when she took possession of her allocated flat, besides the amount of Rs.28,87,645/- - Rs. 15,00,000/- already paid, she is entitled to Rs. 13,87,645/- along with interest thereon as per prevalent bank interest i.e. @ Rs. 8% from the stipulated date of delivery of possession i.e. from 15.06.2008 ( expiry of 18 months from the date of obtaining sanctioned letter ) till its realisation.

The evidence on record clearly indicates that on 05.07.2006 the development agreement was executed and sanctioned building plan was obtained from the KMC on 16.12.2006. As per terms of agreement, the developer was under obligation to complete the construction within 18 months but the developer could obtain Completion Certificate on 27.11.2008 which indicates that the OPs were deficient in rendering services within the meaning of Section 2(1) (g) read with Section 2(1

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)(o) of the Act. In view of the above, the complainant is entitled to some relief. In my view, an order directing the OPs to pay a sum of Rs. 28,87,645/- being calculated at Rs.1656.90 per sq.ft. X 1742.7 sq.ft. – Rs. 15,00,000/- = 13,87,645/- along with simple interest thereon @ 8% p.a. from 15.06.2008 till its realisation will meet the ends of justice. As the situation compelled the complainant to lodge complaint, complainant is also entitled to litigation cost which I quantify at Rs. 10,000/-. The complainant is also entitled to an order of possession letter, authenticated copy of the sanctioned plan and Completion Certificate in respect of the subject premises . For the reasons aforesaid, the complaint is allowed on contest with the following directions : (i) The Opposite Parties are jointly and severally directed to pay complainant an amount of 13,87,645/- along with interest thereon @ 8% p.a. from 15.06.2008 till its realisation. (ii) The Opposite Parties are jointly and severally directed to handover possession letter, authenticated copy of the sanctioned plan and Completion Certificate in respect of the subject premises to the complainant within 30 days from the date positively. (iii) The Opposite Parties are jointly and severally directed to make payment of litigation cost of Rs. 10,000/- in favour of the complainant within 30 days from date otherwise the said amount shall carry interest @ 8% p.a. from date till its recovery.
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