DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _482_ OF ___2014
DATE OF FILING : 24.9.2014 DATE OF PASSING JUDGEMENT: _6.7.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT :1. Sri Gobinda Bhakta, son of late Motilal Bhakta
2. Smt. Rita Bhakta, wife of Sri Gobinda Bhakta
Both of K.P Roy Lane, 100/10/3, Lamp Post, P.O Haltu, P.S Garfa, Kolkata – 78.
O.P/O.Ps : 1. M/s S.R.C Construction, at 46/2, Sarat Ghosh Garden Road, P.S. Kasba, Kolkata – 31.
2. Rajit Roy, son of Bishanadeo Roy of 110/A, Sarat Ghosh Garden Road, P.S. Kasba, Kolkata – 31.
3. Chiranjit Ghosh, son of Shyamal Ghosh of 46/2, Sarat Ghosh Garden Road, P.S. Kasba, Kolkata – 31 and presently at 98, Safuipara Baidyapara, P.S Garfa, Kolkata – 78
4. Somnath Thakur, son of late Sambhunath Thakur
5. Smt. Dipali Thakur, wife of late Sambhunath Thakur
6a. Smt. Susama Thakur wife of late Biswanath Thakur
6b. Sri Biswajit Thakur son of of late Biswanath Thakur
6c. Smt. Bandana Dutta (Thakur), daughter of of late Biswanath Thakur
All of 88, Sarat Bose Colony, P.S Garfa, Kolkata – 78.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
Delay in delivery of possession of the flat by the developers has added to the suffering of the complainants and to get out of the suffering and embarrassment, the complainants have filed the instant case under section 12 of the C.P Act, 1986.
The facts leading to the filing of the instant case may be reproduced in a nutshell as follows.
The O.P nos. 1,2 and 3 are the developers and O.P nos. 4 and 5 and one Biswanath Thakur are the joint land owners of the premises ,described in Schedule to the complaint. One Development Agreement was struck on 19.1.2011 between the developers and the land owners and thereby the developers agreed to raise a three storied building upon the land of the land owners. Thereafter, the developers executed an agreement for sale on 16.2.2011 in favour of the complainants and thereby agreed to sell a self contained flat described in the schedule to the complaint from the developer’s allocation for a total consideration price of Rs.14,50,000/- . The complainants have paid Rs.15,70,220/- to the developers ,though on different dates. Possession of the flat was to be delivered within 18 months of the date of execution of sale agreement. But no possession has yet been delivered to the complainant ,nor is made the registration of the deed in favour of them., So, the complainants have prayed for delivery of possession, registration of sale deed, refund of excess amount taken by the developers and compensation etc. Hence, this case.
The O.P nos. 1 and 2 have not appeared and filed no written version to contest the case. O.P-3 only made his appearance in the case ,but no written statement is filed by him. So, the case is heard exparte against the O.P nos. 1,2 and 3.
Written version is filed by the O.P nos. 4 and 5 on 10.2.2015 ,wherein it is contended by them that they executed a Development Agreement in favour of the developers who proposed to raise a three storied building upon the case land. The developers also agreed to allot entire top floor of the said building to the owners and that the owners’ allocation is described in Schedule B to the development agreement dated 19.1.2011. But actually, the three storied building was not raised by the developers and instead of it, they got a plan sanctioned from the KMC for a two storied building and a two storied building was raised by them. According to the O.Ps, they have occupied the top floor of the two storied building i.e the first floor of the said building in accordance with the terms of the development agreement and they have been possessing the same since the taking over of the possession of the first floor. O.P nos. 2 and 3 i.e the developers tried to dispossess the O.P nos. 4 and 5 from the first floor with the help of the antisocial and, therefore, they have filed a title suit bearing T.S no. 484 of 2014 before the 1st Civil Judge, Jr. Division at Alipore on 24.11.2014 and in that suit ,a restrained order has been passed by the Ld. Court against the developers, so that the developers are not able to disturb the peaceful possession of the O.P nos. 4 and 5 on the first floor of the said building. It is the further case of the said O.Ps that the KMC sanctioned the building plan on 16.1.2012; but prior to such sanction, developers executed the sale agreement on 16.2.2011 in favour of the complainant and thereby they sold the first floor to the complainants. It is the developers, as goes their submission, who have cheated the complainants and they are in no way liable to the complainants for their suffering. The case ought to be dismissed in limini with cost against them.
Written version is also filed by the substituted O.P nos. 6a to 6c . They have contended in their written version that they have also been made victim of whimsical and callous attitude of the developers who did not raise three storied building as proposed and instead of that, got the plan sanctioned from the KMC for a two storied building. Most of the works in the building are left in incomplete state. Their predecessor was allotted second floor in the proposed three storied building ,but the said flat is yet to be completed. Developers show no interest to complete the construction of the said flat. According to them, they are not the service providers of the complainants and, therefore, the complaint should be dismissed against them with cost.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps i.e the O.P nos. 1,2 and 3 guilty of deficiency in service, if any, in terms of the Development Agreement dated 19.1.2011 ?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
The complainants and the contesting O.Ps have filed their evidence on affidavit along with the documents and the same are kept in the record for consideration. Questionnaires, replies, etc. filed on behalf of the parties are also kept in the record for consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of Ld. Lawyers ,appearing for the parties. Perused the complaint, written version filed by the O.P and also the materials on record. Considered all these.
It has been argued on behalf of the O.P nos. 4 and 5 that they are entitled to top floor of the building constructed by the builders and they have also been occupying the top floor i.e the first floor of the said building in terms of the development agreement dated 19.1.2011. It is further contended on behalf of those O.Ps that one injunction order has already been passed by the Ld. Civil Court and thereby the developers have been restrained from disturbing the peaceful possession of the said O.Ps on the first floor of the said building.
Ld. Lawyer appearing for the complainant has contended that the said O.Ps are not entitled to occupy the first floor of the building. According to him, they are entitled to the top floor of the building. The top floor of the building is yet to be constructed and they will occupy the same when the same will be constructed. They cannot occupy the first floor of the building which has been constructed now.
It is to be seen now, whether the O.P nos. 4 and 5 are entitled to occupy the first floor of the building or not.
It is the fact that they have been occupying the first floor of the building . It is the fact that the building which has been constructed now is a two storied building. A copy of sanctioned plan is filed on record on behalf of the O.P nos. 4 and 5 and a perusal of the said sanctioned plan reveals that the developers got a sanction of two storied building from the KMC. A copy of the development agreement dated 19.1.2011 has also been filed on record by the said O.Ps and a perusal of the said development agreement reveals that the owners’ allocation is described in Schedule B to that agreement . It is provided therein that the entire top floor consisting of two self contained flat will be obtained by the land owners i.e O.P nos. 4 and 5 ,vide page 15 of the development agreement. Schedule C to the development agreement reveals developers ‘allocation and it is stated therein that the entire ground floor and the entire first floor etc. will go to the developers ‘share .
It comes to light on a perusal of the development agreement that the developer agreed to raise a three storied building upon the subject land. He got a two storied building sanctioned by the KMC and also raised a two storied building. The O.P nos. 4 and 5 i.e the land owners are entitled to get the top floor of the two storied building, and top floor of such building means first floor thereof and they are in possession of the first floor of the said building. On the other hand, a perusal of the sale agreement dated 16.2.2011 which has been executed in favour of the complainants by the developers, it is found that the developers have agreed to sell the same first floor of the building to the complainants. It is found that the developers have deviated from the terms and conditions of the development agreement; they have not constructed the three storied building upon the land of the owners and instead of that, they have constructed a two storied building having got the plan of a two storied building sanctioned from the KMC. Now, the top floor of the said building ,that is to say, first floor of the said building is in the occupation of the land owners i.e the O.P nos. 4 and 5 and injunction order has also been passed by the Civil Court against the developers and thereby the developers have been restrained from disturbing the peaceful possession of the owners in the first floor of the said building.
Considering all these facts we feel no hesitation to say that it is none but the developers i.e O.P nos. 1,2 and 3 who have opened the Pandora’s Box. The developers have misguided the complainants; they have unscrupulously sold away the first floor i.e the top floor of the two storied building to the complainants and have made an unlawful gain of a considerable amount of money.
Now arises the question as to how the situation can be dealt with so that the consumers like the complainants can get protection from this Forum. In this connection one decision of the Hon’ble National Commission has come to our notice and the said decision is reported in 2018(1) CPR 361 (NC) (Hansu Daleep Jatwani Vs. Gurukripa Properties Pvt. Ltd. ) .
In the case before the Hon’ble National Commission as stated above, the developer was out of possession of the flat which was booked for the complainant and the builder was not in a position to hand over the possession of the flat to the complainant, because of the pendency of on-going conflict between the joint builders and the owners of the land. It was held therein by the Hon’ble National Commission that the Court cannot hand out decisions which cannot be executed and the only relief that seems plausible would monetary compensation to the complainant with respect to the mental agony etc.
Coming to the facts of the instant case, it is found that the first floor which has been sold to the complainants does not exist in the possession of the builders. The said first floor is within the possession of O.P nos. 4 and 5 . That apart, the builders/developers have also been injuncted by the competent Civil Court from disturbing the peaceful possession of the O.P nos. 4 and 5 in the first floor of the building. So, in the facts and circumstances of the case, it is not practicable by the builders/promoters to hand over the possession of the first floor of the two storied building to the complainants by virtue of sale agreement dated 16.2.2011. If any decree is passed by this Forum directing the builders/developers to hand over the possession of the first floor of the said building to the complainant, that decree will be incapable of execution in future.
Regards being had to all these aspects and in view of the facts and circumstances and materials as pointed out above, we think that the builders/promoters should be asked to deliver any alternative flat of same kind ,same value and same nature to the complainants , however, subject to the consent by the complainants and if the developers/promoters are not able to deliver the possession of such alternative flat to the complainants, they will refund the money received by them from the complainants with penal interest along with payment of compensation for appreciation in value of land , harassment, mental agony suffered by the complainants due to unscrupulous acts of the developers .
Point nos. 1 and 2 are thus disposed of accordingly.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is decreed exparte against O.P nos.1,2 and 3 with cost of Rs.10,000/- and dismissed on contest against O.P nos. 4,5 and 6 without any cost.
The O.P nos. 1,2 and 3 are directed to deliver possession of an alternative flat, if possible, of similar value, same grade, similar type in the same consideration price as is agreed by them in terms of sale agreement dated 16.2.2011 subject to consent of the complainants, with due execution and registration of the sale deed in respect of the said flat in favour of the complainants and also to return Rs.1,10,220/- with interest @10% p.a from 21.7.2012 till full realization thereof to the complainant as being the amount received in excess of the consideration price ,within a month of this order, failing which they are directed to refund entire consideration price i.e Rs.15,60,220/- to the complainants with penal interest @12% p.a from the date of last payment i.e 21.7.2012 till full realization thereof and also to pay a sum of Rs.1 lac as compensation for loss sustained by the complainants due to appreciation in value of land ,harassment and mental agony within the aforesaid period, or else the compensation amount and the cost amount will bear interest @10% p.a till fuyll realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
I / We agree
Member Member
Dictated and corrected by me
President
