The instant complaint under Section 17 (inadvertently under Section12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of intending purchasers against the landowners (Opposite Party Nos. 1 to 5 and 8 to 14) and the partners of a construction firm named SHIVACO (Opposite Party Nos. 6 & 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 26.06.2012 the complainant no.1 and the father of the present complainant no.2 named Dilip Kumar Roy, since deceased entered into an Agreement for Sale with opposite party to purchase of a self-contained residential flat measuring about 1650 sq. ft. super built up area being Flat No. 07 on the 3rd Floor at Premises No.22B, Satchasipara Road, P.S.- Cossipore, Kolkata – 700002 within local limit of Ward No.1 of Kolkata Municipal Corporation at a total consideration of Rs.32,10,000/-. The complainants have stated that they have already paid Rs.29,10,000/- as part consideration towards the said total consideration amount and is ready and willing to pay the balance amount of Rs.3,00,000/- to get the Deed executed and registered in favour of them. The opposite parties were under obligation to construct the building within 24 months as per sanctioned plan and to handover the same. The complainants have further stated that they have also paid a sum of Rs.6,40,000/- towards extra job to the developer against proper receipt. The complainants have alleged that time and again they have requested the developer to execute and register the proper Deed of Conveyance and to hand over the possession but it turned a deaf ear. Hence, the complaint with prayer for several reliefs, viz. – (a) to direct the OPs to complete the flat as per Schedule ‘F’ of Agreement for Sale along with extra works agreed upon and to deliver possession in habitable condition; (b) to direct the OPs to execute and register the Deed of Conveyance in respect of the flat as mentioned in Schedule ‘B’ to the Agreement for Sale; (c) a compensation of Rs.15,00,000/- for harassment and mental agony; (d) to direct the opposite parties to return the sum of Rs.6,40,000/- paid by them to OP Nos. 6 & 7 for extra works etc.
The Opposite Party Nos. 1 to 5 and 8 to 14 (landowners) did not appear to contest.
The Opposite Party Nos. 6 & 7 i.e. the partners of construction firm by filing a written version have admitted that the complainants have paid Rs.29,10,000/- out of total consideration of Rs.32,10,000/- and the balance amount of Rs.3,00,000/- to be paid at the time of execution and registration of Deed of Sale. The contesting opposite parties have also admitted that the complainants have paid Rs.6,40,000/- for extra job as indicated by them. The developers have also stated that the complainants are fully aware of the inability of them to execute the Sale Deed on account of death of OP Nos. 1 & 5. However, on payment of balance amount, they are ready to deliver possession of the flat to the complainants.
In support of their respective cases, both the complainants and the contesting opposite parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. However, at the time of final hearing, none appears for the OP Nos. 6 & 7 to participate in the hearing.
Undisputedly, OP Nos.1 to 5 and 8 to 14 or their predecessor in interest were the owners of a piece of land measuring about 12 cottahs 11 chittaks and 9 sq. ft. with standing structure thereon lying and situated at Premises No.22B, Satchasipara Road, P.S.- Cossipore, Kolkata – 700002 within local limit of Ward No.1 of Kolkata Municipal Corporation. On 18.05.2008 the landowners had entered into an agreement with M/s. SHIVACO, a partnership firm represented by OP Nos. 6 & 7 for raising a newly constructed multi-storied building over the said property. In order to execute the same, the developers obtained a sanctioned building plan of the proposed building from the KMC and have started construction of the multi-storied building as per sanctioned plan being No.2012010005 dated 17.04.2012.
Pursuant to the authority conferred upon them, the OP Nos. 6 & 7 had entered into an Agreement for Sale with Sri Tarak Nath Dutta and his father-in-law Dilip Kumar Roy (who passed away on 24.12.2017) i.e. the father of complainant no.2 to sell one self-contained residential flat measuring about 1650 sq. ft. super built up area being Flat No. 07 on the 3rd Floor of the said Premises at a total consideration of Rs.32,10,000/-. It remains undisputed that the complainants have paid Rs.29,10,000/- as part consideration amount towards the said total consideration amount and an amount of Rs.3,00,000/- is due and payable by the intending purchasers which was required to be paid at the time of handing over possession/execution of Sale Deed. It also remains undisputed that the complainants have paid Rs.6,40,000/- to OP Nos. 6 & 7 for the purpose of extra job.
In the Agreement it was stipulated that the developer will complete the construction of the flat within 24 months from the date of agreement or sanctioned building plan. In Clause-7 of the Agreement, it was agreed that the developer shall take all necessary steps for execution and registration of Deed of Conveyance in respect of the flat as per Schedule ‘B’ to the Agreement for Sale on receipt of full payment made by the purchaser and also the cost of conveyance is paid to the developers as per terms of the Agreement.
Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreement with open eyes evaluating its pros and cons and therefore, nothing can be added or detracted from the terms and conditions of the contract. Therefore, the agreement between the parties towers above the rest. In AIR 1996 SC 2508 (Bharti Knitting Co. – Vs. DHL Worldwide Express Courier Division of Airfreight Ltd.) the Hon’ble Supreme Court has observed thus –
“In an appropriate case where there is acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court establish under the CPC or appropriate State Law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract”.
Therefore, as per terms of agreement, the developers were under obligations to handover the subject flat to the complainants within two years from the date of Agreement for Sale dated 26.06.2012, precisely on 26.06.2014. Due to non-fulfilment of promise made by the developer, the complainants compelled to lodge the complaint on 09.11.2015.
The OP Nos. 6 & 7 have cited an excuse that on account of death of Kirshna Chandra Mondal (original OP No.1) and Smt, Saraju Mondal (original OP No.5), who passed away on 17.07.2013 and 27.10.2013 respectively the Sale Deed could not be executed. However, I do not find any averment in the written version or any evidence that the developers had taken any measure to pursue the landowners to fulfil the promise made by the deceased OP Nos. 1 & 5.
It is well settled that after accepting the consideration amount, it is bounden duty on the part of developer – (a) to deliver possession, (b) to execute Sale Deed and (c) to obtain Completion Certificate from the local authority and until and unless it is done, the developers cannot shirk off their responsibility. In this regard, the landowners have no locus standi to raise any objection in getting the flat in favour of the complainants from the allocation of the developers. In a decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati – Vs. – Uppal Agencies Pvt. Ltd. & Anr.] the Hon’ble Supreme Court in Paragrah-23 has observed thus –
“We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, 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 the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider”.
Ld. Advocate for the complainants has rightly referred a decision reported in 2014 (3) CPR 91 [Smt. V. Kamala & Ors. – Vs. – K. Rajiv] where the Hon’ble National Commission has observed that an inter-se dispute between owner and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreement and leave the buyer in lurch.
In their written version, the OP Nos. 6 & 7 have raised a point that the complainant no.2 i.e. father-in-law of the complainant no.1 has his own house at Icchapur, P.S.- Noapara, Dist- North 24 Parganas but nowhere it is stated that the subject flat was intended to purchase for any commercial purpose. In the petition of complaint, it has been categorically stated that the complainant no.2 being a retired and aged person and suffering from various diseases needed to shift to new flat from his Icchapur residence so that the complainant no.1 and his wife (complainant no.2) only daughter of original complainant no.1 may look after him. Ld. Advocate for the complainants placing reliance to a decision reported in 2016 (3) CPR 720 (NC) [ Vimala Agarwal & Ors. – Vs. – Sathya Reddy & Ors.] has submitted that merely because complainants had booked more than one flat it would not per se amount to commercial purpose. In the case before hand, the OP Nos. 6 & 7 did not aver that the complainants have booked the flats for the purpose of selling them for profit. Therefore, the feeble attempt made by the developers to overcome their burden or obligations on some other pretext in handing over the subject flat within the time frame has failed.
Considering the entire facts and circumstances and relying upon the materials on record, I find that the complainants being ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of opposite parties on consideration but the opposite parties, particularly the developers have failed to render services and thereby deficient in accordance with Section 2(1) (g) read with Section 2(1)(o) of the Act. Therefore, the complainants are entitled to some reliefs, as prayed for. In my view, direction upon the OP Nos.6 & 7 to deliver possession and direction upon the opposite parties to execute the Sale Deed within 60 days on receipt of balance amount of Rs.3,00,000/- will meet the ends of justice. Despite payment of almost entire consideration amount, when the complainants were deprived from having a roof of their own over their head for long four (4) years, certainly it caused tremendous mentally agony and harassment for which they are entitled to compensation and considering the loss suffered by them, I assess the compensation in the form of simple interest @ 8% p.a. from committed date of possession i.e. from 26.06.2014 till the date of delivery of possession. Under compelling circumstances, the complainants have to k
Please Login To View The Full Judgment!
nock the door of a Forum constituted under the Act and therefore, complainants are entitled to litigation cost which I quantify at Rs.10,000/- With the above discussion, I dispose of the complaint with the following directions – i. The opposite party nos.6 & 7 are directed to deliver Letter of Possession after obtaining Completion Certificate from KMC and all the opposite parties are jointly and severally directed to execute the Deed of Conveyance in respect of the flat as mentioned in Schedule ‘B’ to the Agreement for Sale dated 26.06.2012 in favour of complainants within 60 days from date; ii. The opposite party nos.6 & 7 are directed to pay compensation of in the form of simple interest @ 8% p.a. from the committed date of possession 26.06.2014 till the date of delivery of possession; iii. The opposite party nos.6 & 7 are directed to pay Rs.10,000/- as cost of litigation to the complainants, iv. The balance amount of Rs.3,00,000/- payable by the complainants shall be adjusted by OP Nos.6 & 7 out of the compensation payable to them in terms of this order. The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainants, in terms of this order.