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Vishal Grover and Smt. Usha Grover & Another v/s M/s. Super Solid Structures Pvt. Ltd. & Others

    Complaint Case No. CC/12 of 2014

    Decided On, 04 September 2017

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

    For the Complainant: Abhik Das, Koyeli Mukhopadhyay, S.R. Chand, Advocates. For the Opposite Parties: Md. Farhaduddin, Anjan Dutta, Advocates.



Judgment Text

The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of intending purchasers against the developer (Opposite Party Nos. 1 & 2) and Landowners (OP Nos. 3 & 4) on the allegation of deficiency in services on the part of them in providing a covered car parking space as per terms of the Agreement.

In a capsulated form, Complainants’ case is that they entered into an agreement with the opposite parties on 17.08.2004 to purchase of a flat measuring about 1195 sq. ft. super built up area being Flat No.4D, on the 4thfloor and one covered car parking space on the ground floor in the Premises No.77A, Christopher Road, P.S.- Tangra, Kolkata – 700046 at a consideration of Rs.14,87,775/- and Rs.1,80,000/- respectively. The said agreement was substituted by another agreement dated 24.04.2015 containing similar terms and conditions save and except the complainants instead of Flat No.D on the 4thfloor, the Flat No.8C on the 8thfloor of the said premises. The complainants have stated that they have paid the entire consideration amount and as such on 06.04.2009, the possession letter in respect of the flat and covered car parking space was issued to them. However, in the middle of January, 2010 the complainants were requested to remove their car bearing No.WB-02N/8794 from the covered car parking space at an uncovered open area. The complainants state that despite payment of entire consideration amount of Rs.16,67,775/-, the opposite parties are showing utter negligence in executing and registering the subject flat and garage as per terms of the agreement. Hence, the complainants have approached this Commission with prayer for several reliefs including a direction to execute and register the Deed of Conveyance in respect of the flat and covered car parking space as per agreement, to pay compensation of Rs.5 lakhs etc.

The opposite party nos.1 & 2/developer by filing a written version have stated that the complaint is barred by limitation, the Agreement for Sale being unregistered one it should be impounded as per Section 35 of Indian Stamp Act. The OP Nos. 1 & 2 have also stated that the complainants should have taken open car parking space after accepting compensation of Rs.50,000/- as per agreement.

The OP Nos. 3 & 4/Landowner by filing separate written version have stated that as the complainants parked their car in the allocation of them, they asked the complainants to remove the car from the parking space No.3.

In support of their respective cases, complainants, OP nos. 1 & 2 and OP Nos. 3 & 4 have filed evidence on affidavit. They have also given reply against the questionnaire set forth by their adversaries. The parties have also relied upon some documents and heavily on the Agreement for Sale dated 24.04.2005. At the time of final hearing, the OP Nos. 1 & 2 and OP Nos. 3 & 4 have also filed brief notes of arguments in support of their respective cases.

Admittedly, on 24.04.2005 the complainants had entered into an agreement with the opposite parties to purchase of a flat measuring about 1195 sq. ft. super built up area being Unit No.8C on the 8thfloor and one covered car parking space in the ground floor at Premises No.77A, Crishtopher Road, Kolkata – 700046. In fact, the OP Nos. 3 & 4 being landowners in respect of 2 bighas 15 cottahs and 5 sq. ft. of the land entered into agreement with the OP Nos. 1 & 2 for raising a multi-storied building over the said property and also executed Power of Attorney authorising the developer to receive consideration from the intending purchasers as well as to sign an execute Deed of Conveyance. It also remains undisputed that the complainants entered into an agreement with the opposite parties on 17.08.2004 to purchase of a flat measuring about 1195 sq. ft. super built up area being Flat No.4D, on the 4thfloor and one covered car parking space on the ground floor in the Premises No.77A, Christopher Road, P.S.- Tangra, Kolkata – 700046 at a consideration of Rs.14,87,775/- and Rs.1,80,000/- respectively. The said agreement was substituted by another agreement dated 24.04.2015 containing similar terms and conditions save and except the complainants instead of Flat No.D on the 4thfloor, the Flat No.8C on the 8thfloor of the said premises.

Undisputedly, the complainants have paid the entire consideration amount and on payment of the same, the developer handed over the possession of the flat and car parking space in favour of the complainants in terms of the agreement on 06.04.2009.Now, the whole dispute cropped up relating to car parking space. According to complainants, they are entitled to covered car parking space as mentioned in the body of agreement as well as second schedule but refuting their contention, the developer as well as landowner have stated that the complainants are entitled to a car parking space but not a covered one and in this regard as per Clause-7 of the Agreement the complainants are entitled to open car parking space.

Needless to say, the parties are bound by the terms of the agreement. In AIR 1996 SC 2508 (Bharati Knitting Co. – Vs. – DHL Worldwide Express Courier Division of Air Freight Ltd.) the Hon’ble Supreme Court has observed thus –

'It is trite law that the terms of the agreement are binding between the parties. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. When a party to the contract disputes the binding nature of the signed a document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents needs to be established'.

The above proposition of law makes it quite clear that when the parties did not pick up any quarrel as to terms and conditions of the agreement and the parties after verifying the terms and conditions put their signatures, certainly the terms and conditions of the agreement dated 24.04.2005 executed by and between the parties towers above the rest.

In the body of the Agreement, it has been mentioned – 'that the developer has agreed to sell and the purchaser has agreed to acquire and/or purchase proportionate undivided variable impartible share in the land beneath the building attributable to the unit being unit/flat no.8C on the eighth floor having 1195 sq. ft. super built up area together with onecovered car parking spaceas fully described in the second schedule.......'. In the second schedule of the agreement, there is also reflection of covered car parking space.

Ld. Advocates appearing for the OP Nos. 1 & 2 and also OP Nos. 3 & 4 have drawn my attention to clause-7 of the agreement which provides – '7. Garage/parking space shall mean covered car parking space in the ground floor. The purchaser consents to allocation of a covered car parking allotment and agrees not to raise any objection for open car parking space'.

We must not be obsessed with the object behind the legislation of this social welfare legislation. In the case of Lucknow Development Authority – Vs. – M.K. Gupta, (1994) 1 SCC 243 the Hon’ble Supreme Court has observed thus –

'To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of the interest of consumers. Use of the word ‘protection’ furnishes key to the minds of makers of the Act. Various definitions and provisions .....'.

Assuming that there is contradiction in the agreement in which one favours the complainants and the other to some extent tilting towards the developer or landowner, even in such a case a liberal construction has to be made in order to give relief to a ‘consumer’ in accordance with the spirit behind the legislation of the Act.

Mr. Farhaduddin, Ld. Advocate for the OP Nos. 1 & 2 has submitted that the complaint is barred by limitation. Such a submission could not inspire me because after accepting the entire consideration amount, it is statutory obligation on the part of the developer/builder to execute the Sale Deed and unless it is done, the cause of action is a continuous one.Ld. Advocate for the complainants has also submitted that as the agreement between the parties is a non-registered one, it should be impounded under Section 35 of the Indian Stamp Act. I am also not impressed with such submission because a Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds. Since, the Act is a legislation for social benefit, the point has to be looked into whether there was deficiency in services on the part of the OPs under Section 2(1)(g) read with Section 2(1)(o) of the Act. In my view, the non-execution of the Deed of Conveyance of the flat and covered car parking space undoubtedly amounted to deficiency in services on the part of the opposite parties.

In that view of the matter, the complainants are entitled to an order for getting the Deed executed in favour of them in respect of schedule ‘B’ property as per terms of the agreement.So far as claim of compensation of Rs. 5,00,000/- is concerned, it would be worthwhile to reproduce the provision of Section 14(1)(d) of the Act which runs as follows –

'14. Finding of the District Forum. – (1) if, after the proceeding conducted under Section 13, the District Forum is satisfied that the goods complaint against suffer from any of the defects specified in the complaint or that any of the allegations contained in the complaint about the services are proved, it shall issue an order to the opposite party directing him to do one or more of the following things, namely :

...........

(d) to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party'.

The sine qua non for entitlement of compensation is proof of loss or injury suffered by the consumer due to the negligence of the opposite party. Once the said conditions are satisfied, the Consumer Forum would have to decide the quantum of compensation to which the consumer is entitled. There cannot be any dispute that the computation of compensation has to be fair, reasonable and commensurate to the loss or injury. There is a duty cast on the Consumer Forum to take into account all relevant factors for arriving at the compensation to be paid.

Therefore, the assessment of compensation depends upon the facts and circumstances of the particular case. In the instant case, it reveals that after receipt of entire consideration amount, the developer handed over the subject flat and also a

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covered car parking space and the complainants are enjoying the same. Therefore, the loss suffered by the complainants in this case is not of that ilk, which requires to be compensated and as such I do not award any amount as compensation for harassment and mental agony. However, as the situation compelled the complainants to institute the case, certainly they are entitled to litigation cost which I quantify at Rs.10,000/-. Consequently, the complaint is allowed on contest. The opposite parties are directed to execute and register the Sale Deed in respect of ‘B’ Schedule property as per terms of the agreement dated 24.04.2005 in favour of the complainants within 30 days from date otherwise the complainants shall have liberty to get the registered through the machinery of the Commission. The opposite parties are jointly and severally directed to pay litigation cost of Rs.10,000/- in favour of the complainants within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from date till its realisation. The Registrar of the Commission is directed to send a copy of this order to the parties forthwith at free of cost for information and compliance.
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