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Saurendra Nath Sen v/s M/s. Ranjan Nirman Pvt. Ltd. & Others


Company & Directors' Information:- S C R NIRMAN PRIVATE LIMITED [Active] CIN = U45209TG2009PTC065550

Company & Directors' Information:- K. K. C NIRMAN INDIA LIMITED [Active] CIN = U45209UP2011PLC044262

Company & Directors' Information:- P AND S NIRMAN PRIVATE LIMITED [Active] CIN = U45202MH2008PTC185087

Company & Directors' Information:- V R NIRMAN PRIVATE LIMITED [Active] CIN = U45200AP2011PTC075459

Company & Directors' Information:- M K NIRMAN PVT LTD [Active] CIN = U70101WB1996PTC080724

Company & Directors' Information:- B C SEN & COMPANY LTD [Active] CIN = U27205WB1986PLC041069

Company & Directors' Information:- P N NIRMAN PVT LTD [Active] CIN = U45206WB2006PTC109540

Company & Directors' Information:- P. J. NIRMAN PRIVATE LIMITED [Active] CIN = U85110WB1999PTC090749

Company & Directors' Information:- S R NIRMAN PRIVATE LIMITED [Active] CIN = U45201WB2004PTC100283

Company & Directors' Information:- P R NIRMAN PVT LTD [Active] CIN = U70101WB2006PTC109079

Company & Directors' Information:- S J S NIRMAN PVT LTD [Active] CIN = U70200WB1993PTC057546

Company & Directors' Information:- J S NIRMAN PVT LTD [Active] CIN = U70109WB1988PTC043962

Company & Directors' Information:- U K NIRMAN PRIVATE LIMITED [Active] CIN = U45400UR1997PTC001249

Company & Directors' Information:- D .K. B. NIRMAN PRIVATE LIMITED [Active] CIN = U45400WB2008PTC124162

Company & Directors' Information:- R S NIRMAN PRIVATE LIMITED [Active] CIN = U17111WB1997PTC085009

Company & Directors' Information:- N R NIRMAN PRIVATE LIMITED [Active] CIN = U45200UP2006PTC032553

Company & Directors' Information:- V S NIRMAN PRIVATE LIMITED [Active] CIN = U70101UP2006PTC032564

Company & Directors' Information:- S G NIRMAN PVT LTD [Amalgamated] CIN = U45208WB2005PTC106511

Company & Directors' Information:- NATH PRIVATE LIMITED [Active] CIN = U31908PN2013PTC148540

Company & Directors' Information:- D S NIRMAN PVT LTD [Active] CIN = U45201WB2006PTC107280

Company & Directors' Information:- A. V. NIRMAN PRIVATE LIMITED [Converted to LLP] CIN = U45400WB2009PTC132910

Company & Directors' Information:- M M NIRMAN INDIA PRIVATE LIMITED [Active] CIN = U45201UP1998PTC023889

Company & Directors' Information:- P S NIRMAN PRIVATE LIMITED [Active] CIN = U45201WB2004PTC097867

Company & Directors' Information:- M P NIRMAN PRIVATE LIMITED [Strike Off] CIN = U70109WB2012PTC182202

Company & Directors' Information:- N. B. NIRMAN PRIVATE LIMITED [Active] CIN = U45400WB2008PTC128703

Company & Directors' Information:- S B NIRMAN PRIVATE LIMITED [Active] CIN = U70200WB1997PTC084744

Company & Directors' Information:- S. M. NIRMAN PRIVATE LIMITED [Active] CIN = U45400WB2007PTC119749

Company & Directors' Information:- G. S. NIRMAN PRIVATE LIMITED [Active] CIN = U45208WB2009PTC137645

Company & Directors' Information:- NIRMAN PRIVATE LIMITED [Strike Off] CIN = U65933UR1952PTC002414

Company & Directors' Information:- C K SEN AND CO PVT LTD [Active] CIN = U51909WB1913PTC002317

Company & Directors' Information:- R R NIRMAN PRIVATE LIMITED. [Active] CIN = U45400WB2008PTC123651

Company & Directors' Information:- SEN & SEN PVT LTD [Active] CIN = U51909WB1949PTC017898

Company & Directors' Information:- A. R. NIRMAN PRIVATE LIMITED [Active] CIN = U70102WB2013PTC195130

Company & Directors' Information:- J D NIRMAN PRIVATE LIMITED [Active] CIN = U70109WB1998PTC087789

Company & Directors' Information:- N S NIRMAN PRIVATE LIMITED [Under Process of Striking Off] CIN = U70109WB2011PTC168002

Company & Directors' Information:- M 3 T NIRMAN PRIVATE LIMITED [Strike Off] CIN = U74999WB2011PTC163838

Company & Directors' Information:- NATH AND CO LTD [Strike Off] CIN = U15141KL1946PLC000796

Company & Directors' Information:- A G NIRMAN PRIVATE LIMITED [Active] CIN = U70109WB2011PTC171336

Company & Directors' Information:- A K SEN & CO PVT LTD [Active] CIN = U74140WB1940PTC009964

Company & Directors' Information:- A. S. NIRMAN PRIVATE LIMITED [Strike Off] CIN = U45201GJ2008PTC054873

Company & Directors' Information:- B C SEN PVT LTD [Strike Off] CIN = U51109WB1947PTC015279

Company & Directors' Information:- M N SEN & CO PVT LTD [Strike Off] CIN = U24139WB1974PTC029748

    Complaint Case No. CC/431/2018

    Decided On, 05 March 2020

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT
    By, THE HONOURABLE MRS. SAMIKSHA BHATTACHARYA
    By, MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Complainant: Chiranjib Bhattacharyya, Advocate. For the Opp. Party: None appears.



Judgment Text


Ishan Chandra Das, President

This is an application under section 17 (1) (a) (i) of the Consumer Protection Act where the complainant is praying for an order to hand over peaceful possession of the completed scheduled flats free from all encumbrances with details, mentioned in the agreement upon execution and registration of the deed of conveyance or to refund of earnest money to the tune of Rs. 25,53,000/- (Rupees twenty five lakh fifty three thousand), compensation of a sum of Rs. 10,00,000/- (Rupees ten lakh) + Rs. 20,00,000/- (Rupees twenty lakh) and litigation cost of Rs. 50,000/- (Rupees fifty thousand) and other consequential reliefs.

The OPs no. 3 to 6 being the land owners entered into Development Agreement with the OPs no. 1 and 2 for construction of the said multistoried building as per Development Agreement (Annexure-A-1) and a Power of Attorney was executed in favour of the OP no. 2, the Developer (Annexure A-2). The complainant further stated that he entered into an Agreement for Sale with the OPs no. 1 and 2 for delivery of two complete flats, one measuring 1100 sq. ft. on the ground floor at the north eastern portion and another measuring 750 sq. ft. on the second floor at the north western portion of the new building, to be developed by the OPs at the premises no. 13 Bechu Doctor Lane, Dhakuria, as referred to in the schedule of the petition of complaint for a consideration of Rs. 37,00,000/- (Rupees thirty seven lakh). The agreement was duly registered in the office of the Additional Registrar of Assurances-I (Annexure-‘B’). The complainant claimed that both the flats were purchased by him for residential purpose only and one for his mother and the other for himself and the complainant is not engaged in any kind of commercial motive. The OP agreed to construct the flat within 30 months from the date of execution of the said agreement and subsequently the OPs entered into another Agreement for Sale dated 05-10-2012 with the complainant and enhanced the total consideration to Rs. 45,55,000/- (Rupees forty five lakh fifty five thousand), included certain details regarding common parts, common maintenance charges, specification of construction that would be followed while construction of the new building as per Annexure-‘C’. The complainant in the mean time paid a sum of Rs. 25,53,000/- (Rupees twenty five lakh fifty three thousand) towards part payment to the OP no. 1 on different dates which were duly acknowledged in the supplementary Agreement for Sale dated 05-10-2012 and money receipts showing payments of consideration were filed collectively marked Annexure-‘B’. In the month of January, 2014 while the complainant was ready to comply with his part of the agreement by paying the balance amount of consideration and enquired of the proposed construction, the OP offered various explanation to the complainant for delayed construction and undertook to complete such construction as soon as possible. On 25-06-2014 the OP no. 1 issued a notice in response to the complainant admitting that he failed to construct the new building as per agreement dated 04-07-2012 and 08-07-2012 and thereby committed ‘deficiency of service’ and ‘unfair trade practice’ causing enormous mental pain, harassment and agony besides huge monitory loss. Thereafter the complainant issued a letter dated 15-12-2014 to the OPs mentioning that the allotted time was over and requested the OPs to complete the work at the earliest but the OPs deliberately failed to take proper steps to honour their commitments as per the agreements. Since the OPs did not respond to the complainant’s letter, the complainant sent an Advocate’s notice on 06-04-2015 calling upon the OPs to hand over peaceful khas possession of the completed flats free from encumbrances as per details mentioned in the said agreement coupled with execution and registration of the deeds i.d. to refund the consideration and a compensation of a sum of Rs. 20,00,000/- (Rupees twenty lakh) along with interest @ 15% p.a. from the date of payment. The OPs received the notice on 07-04-2015 but failed and neglected to reply the said notice or did not take any action to honour their commitment. In the mean time, the OPs/Developer got sanctioned plan of the building and completed the construction of the said building but despite the notice of the complainant to deliver possession of the said flat, the OPs did not respond to the notice of the complainant for delivery of possession of the flat on acceptance of the balance consideration and compelled the complainant to file the instant complaint case for the reliefs including an alternative relief for refund of the earnest money, compensation and registration cost etc. The complainant admitted that initially he filed a complaint case against the OPs being CC/149/2015 which was dismissed on some technical grounds i.e. the transaction was meant for commercial purpose for purchase of more than one unit of residential premises. Now the complainant claimed that the Hon’ble National Commission has clarified that mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for commercial purpose, unless it is shown by bringing on record some cogent material that the purchaser is engaged and sale of flats with a view to making profits and that prompted the complainant to take recourse of the Commission once again by filing the instant complaint case being CC/431/2018.

None of the OPs did appear to contest the complaint case and left the matter to be heard exparte against them.

The complainant produced documents to establish that he paid major part of the consideration to the OP/Developer immediately after the agreement and thereafter by installments.

In course of argument Ld. Counsel appearing for the complainant with all fairness admitted that his client filed a similar case against the OPs no. 1 and 2, the Developer claiming the similar reliefs in respect of the flats which were directly and substantially the subject matter in issue in the present complaint case. He admitted that the earlier complaint case was dismissed by this Commission by order dated 15-07-2016 where it was observed by relying upon a decision of the Hon’ble National Commission in Anil Vs. M/s Business Park Town Planners Ltd., reported in 2013(4) CPR 24 (NC) where the Hon’ble National Commission held that “when a consumer has booked more than one unit of residential premises, it amounts to booking of such premises for investment as commercial purpose”. Accordingly it was held that the complainant was not considered as ‘consumer’ within the meaning of section 2 (1) (d) of the Act under the OP and did not entertain the petition of complaint. Now the complainant is coming with another decision of the Hon’ble National Commission in Pranav Mittal and others Vs. Dynamic Infra Developers (P) Ltd. and others, reported in IV (2017) CPJ 393 (NC) where it was held and submitted that unless it is shown by bringing on record by some cogent material that a purchaser is engaged in purchase and sale of flats/houses on regular basis with a view

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to making profits by such sale, a mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for “commercial purpose”. We do not have any doubt about the correct proposition of law in the matter but the fact remains the complainant filed CC/149/2015 before this Commission and it was dismissed on merit as pointed by Ld. Counsel for the complainant. A subsequent complaint cannot be entertained on the same cause of action in respect of the same similar subject matter, the same being disposed of on merit and it was hit by the principle of ‘res judicata’ but he should have taken the recourse of appeal before the Hon’ble National Commission within the time frame. Hence we are constrained to dismiss the complaint case. We do not pass any order as to costs.
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