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Swapan Kumar Ghosh v/s M/s. New Maatara Construction & Others

    Complaint Case No. CC/5/2017

    Decided On, 03 December 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Complainant: Barun Prasad, Subrata Mondal, Sovanlal Bera, Advocates. For the Opp. Party: Ayan Pal, Advocate.



Judgment Text


Samaresh Prasad Chowdhury, Presiding Member

The instant complaint under Section 17 of the Consumer Protection Act, 1986, (for brevity, ‘the Act’) is at the instance of an intending purchaser against a partnership construction firm and its partners (Opposite Party Nos. 1 to 3), and the landowners (Opposite Party Nos. 4 to 7) 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 20.09.1999 he entered into an agreement with the Opposite Parties to purchase one self-contained flat measuring about 770 sq. ft. With 20% super built up area total 924 sq. ft. on the first floor along with proportionate share and interest over the land lying and situated at premises No. 114/3, Ananda Palit Road, P.S.- Entally, Kolkata-700014 at a total consideration of Rs. 9,70,200/-. The complainant has stated that he has already paid Rs. 10,50,001/- to the developer by instalments on several dates from 01.09.1999 to 21.02.2002. Accordingly, the developer delivered possession of the flat in question in favour of the complainant by issuing Possession Letter on 05.10.2001. The complainant has alleged that by the said possession letter the developer undertook to complete the remaining works of the building such as roof work, total building painting and some works in the flat in question. The Complainant has also alleged that the Opposite Parties did not clear up to date property tax of the building to the Kolkata Municipal Corporation. In this regard, all the requests and persuasions of the complainant went in vain for which the complainant approached Consumer Affairs Department of Government of West Bengal where the developer admitted their fault. However, as the Opposite Parties did not fulfil their part of obligations, complainant has come up in this commission with the instant complaint with prayer for following reliefs, viz.- (a) to direct the Opposite Parties to execute and register the deed of conveyance in favour of him and to complete the unfinished works and clear the property tax up to date; (b) to award compensation to the tune of Rs. 15,00,000/- due to harassment and mental agony; (c) to direct the OPs to pay litigation costs of Rs. 50,000/- etc.

The Opposite Party Nos. 2 and 3 being partners of Opposite Party No.1 construction firm by filing a written version have stated that the complaint is barred by limitation and the complaint has shown the value of Rs. 25,50,001/- in order to bring the case within the jurisdiction of this commission. The OP Nos. 1 to 3 have stated that as the complainant did not come with clean hands and failed to show the reasons for delay in lodging the complaint after long 18 years, the complaint should be dismissed.

Both the parties have tendered evidence through affidavit. They have also filed reply against the questionnaire set forth by their adversaries. However, either of the parties has not filed any BNAs in support of their respective cases.

The overwhelming evidence on record make it quite clear that the predecessor in interest of Opposite Party Nos. 3 to 7 were the owner in respect of piece and parcel of land measuring about 3 cottahs 13 chittaks 7 sq. ft. lying and situated at premises No. 114/3, Ananda Palit Road, P.S.- Entally, Kolkata- 700014. In order to construct a 4 storied building thereon, the landowner has obtained sanctioned building plan from the Kolkata Municipal Authority on 23.09.1991. However, prior to that on 18.08.1999 a development agreement was executed between the landowner and the partnership construction firm whereby the developer was entitled to enter into an agreement for sale and transfer the flats in respect of first and second floor of the newly constructed building.

Being emboldened with the power conferred upon them, the OP Nos. 1 to 3 had entered into an agreement with the complainant to sell one self-contained flat measuring about 770 sq. ft. With 20% super built up area total 924 sq. ft. on the first floor along with the proportionate share and interest over the land lying and situated at premises No. 114/3, Ananda Palit Road, P.S.- Entally, Kolkata-700014 at a total consideration of Rs. 9,70,200/-. It remains undisputed that complainant has paid total sum of Rs. 10,50,001/- for which the developer delivered possession of flat in question to the complainant on 05.10.2001.

However, the evidence on record speaks that the developer did not complete the construction of the building for which they could not obtain Completion Certificate from Kolkata Municipal Corporation. Further, it appears that the complainant did not clear up to date property tax.

Mr. Ayan Paul, Ld. Advocate for the Opposite Party Nos. 2 and 3 has submitted that when the complaint has lodged the complaint after long 16 years from the date of obtaining possession, the complaint is barred by limitation. It is true that in accordance with Section 24A of the Act, it is incumbent upon a person to lodge a consumer complaint within 2 years from the date of accrual of cause of action but when it is clear that the complainant has come up in this commission with a prayer for a direction upon the opposite parties to execute and register the deed of conveyance and it is evident that despite receipt of entire consideration amount, the developer did not execute the sale deed, the cause of action is a continuous one.

Ld. Advocate for the Opposite Party has also raised the question as to pecuniary jurisdiction to entertain the complaint. From the materials on record it would reveal that the value of the flat is 9,70,200/- and the complainant has claimed compensation of Rs. 15,00,000/-. Considering the value of the flat it appears to us that the compensation claimed by the complainant is exaggerated. The OP Nos. 2 and 3 have mentioned the same in paragraph 12 of their written version. However, this question was never brought to the notice of the Commission by OP Nos. 2 and 3 prior to final hearing of the case. In all fairness, the OP Nos. 2 and 3 should have filed one application challenging the maintainability of the proceeding on the ground of pecuniary jurisdiction immediately after filing of the written version. In that perspective, when the proceeding is pending for about long 3 years at this stage, if the complaint is rejected on that technical ground, it is a ‘consumer’ who has approached a forum constituted under the Act would be the ultimate sufferer. Therefore, keeping in view of the avowed object behind the legislation of the Act whereby the legislative intent is to ‘protect’ the interest of a consumer, we think, an order of rejection of complaint would be unnecessary harassment of the complainant, who once again will have to approach before the Ld. District Forum to ventilate his grievances and to seek remedy.

Considering the above, we think when in spite of receipt of entire consideration amount and after delivery of possession, the Opposite Parties did not execute the sale deed in respect of the flat in question, it simply indicates deficiency in services on the part of Opposite Parties. Therefore, the complainant is entitled to some reliefs. Considering the facts and circumstances of the case, we think, an order directing the Opposite Parties to execute and register the deed of conveyance in respect of B schedule property as per agreement dated 20.09.1999 in favour of the complainant within 60 days from date will serve the object of justice. The complainant has no obligation to pay any property tax prior to 05.10.2001 i.e. the date of delivery of possession. As the complainant has lodged the

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complaint before the State Commission, not in obedience to the provisions of Section 11(1) of the Act, the complainant is not entitled to any compensation or litigation costs. Consequently, the complaint is allowed on contest against Opposite Party Nos. 2 and 3 and ex parte against the rest without any order as to costs. The Opposite Parties are jointly and severally directed to execute and register the deed of conveyance in respect of property as mentioned in Schedule ‘B’ to the agreement for sale dated 20.09.1999 in favour of the complainant within 60 days from date in default the complainant shall have liberty to get a deed executed from the machinery of the commission. The Opposite Party Nos. 1 to 3 are directed to pay the arrear property tax, if any, in respect of the said property till 04.10.2001within 60 days from date.
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