DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _316_ OF ___2015
DATE OF FILING : 7.7.2015 DATE OF PASSING JUDGEMENT: _11.5.2018_
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Srimati Putul Jha, wife of Sri Ajay Kumar jha .
2. Ajay Kumar Jha, son of late Rup Narayan Jha , both of 102K, Karunamoyee Lane, P.O and P.S Haridevpur, Kolkata – 82.
O.P/O.Ps : 1. Sri Nirmalendu Bandopadhyay, son of late Monmotha Nath Bandopadhyay.
2. Smt. Maya Bandopadhyay, wife of late Amalendu Bandopadhyay
3. Smt. Debjani Bandopadhyay.
4. Smt. Sonia Bandopadhyay,
Both daughters of Amalendu Bandopadhyay
All of 18, Mahatma Gandhi Road, P.O Paschim Putiary, P.S Haridevpur, Kolkata – 41.
5. M/s Shivam Construction ,registered office at 230, Banerjee Para Road, P.O Paschim Putiary, P.S Haridevpur, Kolkata – 41, represented by its sole Proprietor Sri Rajat Sekhar Haoladar, son of Sri Dakshina Ranjan Haoladar , of 230, Banerjee Para Road, P.O Paschim Putiary, P.S Haridevpur, Kolkata – 41.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The complaint as it runs in the manifestation of its narrow compass is that O.P nos. 1 to 4 are the land owners and O.P-5 , the developer. The complainants were tenants in the land succinctly described in Schedule B to the complaint. A development agreement was effected between the land owners and the developer on 21.4.2007 in respect of the schedule land and the other lands of the land owners. As the developer could not proceed with the construction upon the scheduled land for the reasons that the complainants did not vacate the premises, he approached the complainant and an agreement was executed on 26.3.2010 between the developer and the land owners on one hand and the complainant no.1 on the other. But the land owners did not sign the agreement dated 26.3.2010. The terms of the said agreement i.e agreement dated 26.3.2010 were that (i) complainants will vacate the tenanted portion within 15 days from the date of registration of the agreement, (ii) the developer will bear the additional cost for alternative accommodation of the complainants till repossession, and will find out a suitable accommodation for the complainants in the same locality (iii) the developer will pay Rs.15000/- as shifting charge to the complainants – which amount will be refunded by the complainants to the developer on the date of repossession of their allotted portion and (iv) the developer shall complete the construction within 18 months from the date of sanction of the building plan . It was further agreed in the said agreement that the vacant possession of a self contained flat on the backside of first floor measuring an area of 500 sq.ft super built up area (350sq.ft in lieu of tenanted portion and 150 sq.ft for Rs.1,50,000/-) will be delivered by the developer to the complainants. Construction of the building was completed long ago; but possession of the flat as agreed upon between the complainants and the developer was not delivered and the registration of the said flat was not also effected by the O.Ps in favour of the complainants. The complainants have, therefore, filed the instant case, praying for issuing a direction upon the O.Ps for registration and delivery of possession of the case flat. Hence, this case.
It is only O.P-5 who has filed written statement to contest herein . According to him the case is not maintainable in law and that the same is barred by limitation as the same has been filed after expiry of five years from the date of completion of the building. It is further averred in the written statement by the O.P-5 that the alleged agreement dated 26.3.2010 is false, not proper, not a concluded agreement and it is an afterthought of the complainants. According to him, the alleged agreement is nothing but “No objection Certificate “by way of agreement which is required for sanctioning the plan for construction of the building. The complainants should have filed a civil case to adjudicate their right of tenancy. It is further averred in the written statement by him that the complainants surrendered their occupancy right in favour of the land owners after having received the consideration price of Rs.15,000/- as shifting charge from the land owners . The entire work of construction was completed by him within October, 2010 and possession was also delivered to the owners by that time. The O.P never agreed to deliver a self contained flat having 500 sq.ft area to the complainants as alleged and there is no deficiency in service on the part of the developer i.e O.P-5. So, the instant case should be dismissed in limini as against the O.P-5.
The other O.Ps have not filed written statement to contest herein and therefore, the case is heard exparte against them.
Upon the averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the complaint maintainable in Law?
- Is the complaint barred by limitation?
- Are the O.Ps guilty for deficiency in service for violating the terms of the alleged agreement dated 26.3.2010?
- Are the complainants entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Both the parties have led their Evidences on affidavit which are kept in the record for consideration. The questionnaires, replies , BNAs filed by 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 both the parties. Perused the complaint, written statement and also evidences led on behalf of the parties.
Considered all these.
It is to be seen now whether the case is not maintainable in law or whether the same is barred by limitation.
It has been argued on behalf of the O.P that complainants are not consumers as they have not purchased the alleged flat measuring 350 sq.ft on payment of consideration money. According to the submission of Ld. Lawyer for the O.P no consideration price is paid by the complainants for the flat measuring 350 sq.ft and ,therefore, the complainants are not consumers in respect of that portion of the flat. He further argues that the complainants may be regarded as consumers in respect of the remaining 150 sq.ft flat and the complaint may be maintainable in respect of that portion of the flat only. But, when a portion of a complaint is not maintainable in law, inasmuch as the complainants are not consumers in respect of that portion of the flat, the entire case should be held to be not maintainable in law and should therefore be dismissed.
It is further argued on behalf of the contesting O.P that the case is palpably barred by limitation. According to the version of the O.P the construction of the building was completed in the month of October, 2010 , the instant case filed in the year 2015 ,about five years after the construction of the building. So, to him, the instant caser is also barred by limitation and should, therefore, be dismissed.
Ld. Lawyer appearing for the complainants has pointed out that the complaint is lawfully maintainable against the O.Ps and the same is not barred by limitation
A complaint by a complainant is maintainable ,if it is found that the complainant is a consumer within the meaning of its definition as provided under section 2(1)(d) of the C.P Act, 1986. It has been contended on behalf of the O.P that there is no consideration paid by the complainants to the O.P i.e the developer for 350 sq.ft portion of the flat. This submission appears to be not acceptable , as it appears to be far away from the existing legal position of the land. It is admitted by the O.P-5 that the complainants were tenants on the land upon which is erected the building by the developer and that they surrendered their occupancy right in favour of the land owners in order to enable him to make the construction upon the case land. In our view and in view of the facts which goes undisputed and as referred to just above, the surrender of their occupancy right upon the case land by the complaiantsin favour of the developer is good consideration for the agreement. A consideration need not be in terms of the money only; it is required that the consideration must have some value in the eye of Law. What is consideration? Consideration is a quid pro quo – to get something in place of something. In the instant case, the complainants have surrendered their occupancy right which they enjoyed as tenants upon the land on which the building has been constructed by the developer and in lieu of their surrender of that right they have been promised by the developer to be provided by a self contained flat with an area of 500 sq.ft of which the complainants are required to pay for 150 sq.ft only. Regards being had to all these facts and circumstances, we do say that complainants are “Consumers “within the meaning of the term as provided under section 2(1)(d) of the C.P Act, 1986 and as such, the complaint is amply maintainable in Law before this Forum. As regards the portion of 150 sq.ft of the flat, complainants have agreed to pay Rs.1,50,000/- as consideration price and as such they are found to be consumers in respect of that portion also.
Now to see whether the case is barred by limitation. It has been argued on behalf of the O.P that the case has been filed about five years after the completion of construction of the building by the developer and as such, the case is barred by limitation. No, the case can never be barred by limitation. In a case of such ilk, the cause of action arises on day-to-day basis; the cause of action in a case of such kind is a continuing one and the law of limitation can never make any dent to such kind of cases.
Point nos. 1 and 2 are thus disposed of in favour of the complainants accordingly.
Point nos. 3 and 4 :-
It has been argued on behalf of the O.P developer that the agreement dated 26.3.2010 is actually a “No objection Certificate” taken from the complainants for the purpose of procuring the sanctioned building plan from the Municipality. According to him, the complainants were the tenants under the land owners and it is the land owners who are liable to provide the complainants with self contained flat. It is not the headache of the developer to provide the complainants with any flat. In the face of the above submission of the developer, it is to be seen whether the agreement dated 26.3.2010 was actually a “NO Objection Certificate “as alleged by the O.P-5 or the O.P-5 has adopted a tortuousapproach to evade his liability under the said agreement dated 26.3.2010. On perusal of the said agreement , it is found that the developer i.e O.P-5 has signed the said agreement. Execution and contents of the said agreement have not been denied by the developer. Regards being had to this facts ,we may hold that the developer executed the agreement with full knowledge about its contents . A further perusal of the materials on record reveals that the developer has resorted to falsification. The condition of the developeris now seen to be like a drowning man fervently trying to catch at a straw. It is the case of the developer that the agreement dated 26.3.2010 was actually a ‘no objection certificate’ taken from the complainants in order to get the building plan sanctionedby the concerned municipality. This version of the developer is absolutely false. It is false, because the building plan was already sanctioned by the Municipality on 24.11.2009i.e much before the execution of the said agreement dated 26.3.2010. In para 11 of the written statement filed by the O.P-5 it has been stated that the said agreement does not bear his signature but a person will be able to find with the help of his naked eye that the said agreement bears the signature of O.P-5. This version, therefore, appears to be another false steps taken by the O.P, developer.In para 12 (d) of the written statement filed by the O.P-5it has been stated that “No Objection Certificate” by way of agreementwas taken from the complainant. By this version of O.P-5 it stands established that the agreement was executed between the complainant and the developer, be it no objection certificate or the agreement for sale. Where an agreement is executed between the parties, the parties are bound by the terms of that agreement. Coming to the facts of the instant case, we do feel not a wee-bit of hesitation to hold that the O.P-5 i.e the developer who is the executant to the agreement dated 26.3.2010 will have to abide by the terms of the agreement and he cannot escape the liability of the agreement by adopting tortuous tactics.
It is also seen in the agreement that the developer willdeliver the vacant possession of a self contained flat measuring 500 sq.ft super built up area to the complainants after completion of the construction upon the land . It is true that the complainants will get 350 sq.ft of the said flat in lieu of surrender of their tenanted portionand that they are required to pay Rs.1,50,000/- for the remaining 150 sq.ftin the flat. It is also made clear in the agreement dated 26.3.2010 that the developer will give notice to the complainants, asking them to take delivery of possession , and that notice will be given by the developer after the completion of the building. The developer has not given such notice to the complainants. Be that as it may, the complainants cannot be deprived of the flat, the possession of which was agreed to be delivered to them by the developer. If the complainants are not given possession of the flat as agreed upon, it will be tantamount to dispossession of the tenants from their tenanted portion. Such dispossession will be unlawful dispossession and no one will be allowed to get away with dispossession of any tenant unlawfully by having adopted sordid manoeuvres. The complainants have also prayed for compensation @ Rs.1,60,000/- for payment of monthly rent by them from October,2012 till delivery of possession of the schedule property. But no document whatsoever has been filed by them to prove that they have paid rent for their alternate accommodation after surrender of their tenanted premises in favour of the developer/land owners. So, in the circumstances, prayer for compensation for the purpose of payment of rent cannot be allowed in favour of the complainant.
Thus, Point nos. 3 and 4 are also disposed of in favour of the complainants .
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against O.P-5and allowed exparte against the remaining O.Pswith cost of Rs.5000/- to be paid by all the O.Ps to the complainant.
The O.Ps are hereby directed to effect a registered sale deed in favour of the complainant no.1 in respect of the Schedule B property and also to deliver possession of the said flat to the complainants within a month of this order.
At the same time, the complainants are directed to make payment of Rs.1,50,000/-as consideration price and Rs.15000/- (shifting charge)to the developer i.e O.P-5, within the aforesaid period of one month.
The O.P-5 will pay a sum of Rs.30,000/- as compensation to the complainants for harassment and mental agony caused to them ,within a month of this order, failing which, the compensation amount and the amount of cost as referred to above will bear interest @9% p.a till full 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
