Order-15.
Date-08/12/2017.
AUTHORED BY. SRI RABIDEB MUKHOPADHYAY
This is an application u/s.12 of the C.P. Act, 1986.
It is stated by the complainant that on 11th January, 2010 Complainant entered into a landlord / developer agreement for development of G + 3 House at 5/2M, Sil Lane, PS . Tangra, Kolkata – 700 015. The developer paid a sum of Rs.1, 35,000/- as Security Deposit to the landlord on refundable basis after completion of construction of the said building. An agreement has been signed on 11.01.2010 between Chhanda Ghosh, residing at 5/2F Sil Lane, PS. Tangra, Kolkata 700 015 with Sri Surojit Shaw, Managing Director and Sri Bibhas Dey, Director and Sri Pronoy Dey, Director of ABG Tower Pvt. Ltd. at 21/E Atal Sur Road, 2nd floor, Kolkata 700 015 under a Notarial Certificate signed by Notary Gobinda Lal Maitra. As per the agreement M/s. ABG Tower Pvt. Ltd. at 21/E Atal Sur Road, ,2nd floor, Kolkata 700 015, the Directors (OP-1 to OP- 4) as Builders/ Developers were to develop the premises at 5/2MM Sil lane, PS . Tangra, Kolkata 700 015, measuring about 2 (two) Cottah 10 Chattak, 20 Sq. ft. into a G+3 storied building to be constructed on the said land as per sanctioned plan of Kolkata Municipal Corporation containing severalsaleable flats and garage.
In the agreement it was stated that commencement of this agreement shall be deemed to have commenced with effect from the date of execution of the agreement. But 10 years have elapsed no initiation has been taken from the part of the OPs-1 to 4 and complainant has to face immense distress in a dilapidated house where there is chance of collapsing any day.
The time limit of the said construction is within 18 months from the date of obtaining sanctioned plan and actual handing over of the premises to the OPs but since the inception of the above agreement the said developer did not arrange any sanction of the above building plan nor make any development process.
On 15.12.2010 Complainant served one notice to the OPs/ Developer for termination of the said agreement and to return of the Security Deposit against N.O.C from the OPs / Developer alleging negligence and deficiency of service.
Under the above circumstances, the complainant being an unmarried lady is very much concerned to lead a miserable life taking into cognizance her condition having an octogenarian father and mother to take care of them and being harassed immensely, not only mentally but also habitably without taking into consideration the plight and the pitiable condition was thriving under and at this stage Complainant is compelled claim an amount of Rs.20 lakhs within one month for the lapse of a long period of 10 years in executing the said construction work failing which there is no other alternative but to sue before appropriate court of law for redressal citing clear deficiency of service.
Complainant therefore prays for a direction to the OP for providing NOC in regard to termination of agreement between the OPs, for direction to execute cancellation of agreement deed along with NOC and for compensation Rs.50, 000/-for harassment and mental agony.
Written version
As averred by OP-3,the Complaint filed by the Complainant is not maintainable in the eye of law. The Complainant has made three prayers being i) for a direction jupon the OP to provide NOC to the complainant, ii) for direction to execute cancellation of agreement deed with the NOC and lastly iii) for a compensation of Rs.50,000/- for alleged harassment and mental agony. OP-3, Director of ABG Towers Private Limited, submitted that none of the three prayers are maintainable before this Hon’ble Forum under CPA, 1986 and such prayers should been made by the complainant before any appropriate Ld. Civil Court having jurisdiction.
The OP-3 states that prior to execution of the agreement dated 11.01.2010 for development of G+3 House the complainant had informed that the land in question is under the classification of ‘bastu ‘. After agreement dated 11.01.2010 the Developer OP-3 came to know that the land in question is actually under the classification of ‘ Khatal ‘, subsequently, the Developers took initiative with the local authorities for change of classification of the land to ‘ bastu ‘ (Annexure –A). Since the process is time consuming, finally completed in the year 2016. The Developer, OP-3 has no hesitation in completion of development of G+3 building over the land in question. In fact construction of the building was due to start soon, as the process of change of classification of land was completed. However, the complainant lodged the instant case before this Hon’ble Forum. With regard to above, the OP-3 states that the said matters of record. OP-3 has pointed out that as per agreement dated 11.01.2010 complainant had not pointed out that the classification of land in question was under ‘’ Khatal’’ and OP states that the agreement was signed in 2010 and it is currently 2017. The OP-3 has given stress upon the classification of land was under ‘’ Khatal’’ and the subsequent change of classification was a long drawn out process completed after initiation by the developer and its directors.
With regard to above contents the OP-3 begs to state that the developer was about to obtain sanction plan for the building after completion of the time consuming process of change of classification of land in question. OP-3 begs to humbly state that the grievances and claims of the complainant is not at all appropriate before this Hon’ble Forum under the CPA, 1986 and the complainant should have taken her grievances before an appropriate Ld. Civil Court under jurisdiction.
Under the above circumstances and as per the contents, the OP-3 denies all the allegations as leveled against them by the Complainant. OP-3 is ready and has always been ready to complete the construction of the aforementioned building over the aforesaid land. The inevitable delay is due to lapses of proper land classification.
OP-3 requests the Hon’ble Forum to permit and allow the OP-3 to submit the present WV on record of matter in the interest of justice and prays for dismiss the present petition of complaint leveled by the complainant in case No. 186 of 2017 and direct the complainant to pay the appropriate cost(s).
OP-2 also filed WV separately with more or less same content. OP-2 adds at para-2(iv), page 2 and para-3(vi), page 4 of WV that the complaint valued more than Rs 20,00,000/- and as such the complaint cannot be adjudicated under the Consumer Protection Act, 1986. It is also stated that the complainant suppressed material fact as the property was listed as ‘Khatal’ premises for which the OPs had to spend huge time and money for conversion.OP-2 prayed for dismissal of the complaint.
The case ran exparte against OP-1(the Developer Co.) and OP-4, one of the Developers representing OP-1.
Points for Decision
- Whether the complainant is a consumer under the OPs;
- Whether the complaint is maintainable;
- Whether the complainant deserves Relief.
Decision with Reasons
1) We have perused the stated documents filed by the complainant including copy of Agreement dated 11/01/2010 and copy of Inspection Book of Kolkata Municipal Corporation for Revaluation 3/2002-03 filed by OP-3, Evidence, Questionnaire, Reply by complainant, OP-2 and OP-3.
We should clear the maintainability point first.
2) The OP-2 stated in WV and at para-4 of Evidence, that as the value crossed Rs 20, 00,000/-, the complaint is not maintainable. The point has made the OPs confused. The complainant did not pray for compensation of Rs 2000000/- in the complaint. The landowner/complainant sent notice dated 15/12/2016 to 4 OPs that no initiation of constructionof the building has been taken by OPs as per provision of the Agreement dated 11/01/2010 though 10 years elapsed and the complainant had to face immense distress in the dilapidated house with chances of being collapsed. In the said letter, complainant intended to cancel the Agreement dated 11/01/2010 and demanded a compensation of Rs 20, 00,000/- within a month for the lapse in the construction. The complainant mentioned in the complaint as well as in the Evidence also. This amount is not prayed for in the complainant.
3) So, as far as the pecuniary jurisdiction of this Forum in terms of section 11(1) of C. P. Act, 1986 is concerned, the complaint is well within the jurisdiction and in this angle the complaint is maintainable. There are two other points at para-2(a) of WV by OP-3 and that would be discussed at proper time.
The next important point is the OPs’ advocacy for delay in the execution of the construction and the complainant’s suppression of fact regarding classification of land.
4) It needs to be pointed out at the beginning that it was the duty of the OPs to verify search for the classification of the land and other records before entering into the Development Agreement. Without verifying and searching the position of the land, they were going to develop and construct the agreed building. This is the fault on OPs’ part.
5) However, on scrutiny of a notarial copy of the Calcutta Municipal Corporation Inspection Book, Lands and Buildings, filed with WV by OP-3, it appears from the right part of the Inspection Book that ‘Khatal was abolished and structure demolished and at present there is no Khatal’as per confirmation under signature of the Inspector ,K. K. Banerjeeas on05/5/06,(long before date of Agreement) in connection with Effective Or of Revaluation 3/2002-03 of which the certified copy was issued on 08/5/2013 by Asstt. Assessor Collector, Divn. 20B, Ward 57/58.
6) So, OPs’ claim that the complainant suppressed the fact of classification of land is not substantiated, at least from submitted evidence. OPs’ claim that they had to invest huge time and money is also not true. Therefore, their cause of delay for getting plan sanctioned by the Calcutta Municipal Corporation as well as construction of the building as per clauses 32 and 57 of the Agreement dated 11/01/2010 is not substantiated. The building was to be completed and owner’s portion(45 percent) was to be delivered within 18 months from the date of sanction of the building plan by the Calcutta Municipal Corporation. Almost 8 years elapsed but the OPs could neither manage sanction of plan nor could complete the building.
7) It appears from provisions of Agreement, that time is the essence of the Agreement. In clause 57, it is mentioned that for extension of time, owner’s grant is necessary. But the OPsneither sought for any extension of time from the owner/complainant nor did they approach in this regard. Even, when the complainant wrote through the lawyer on 15/12/2016 to all OPs that she was in very much distressed condition for non-completion of her portion of the building and intended to cancel the Agreement and sought NOC from them demanding Rs 20,00,000/- as compensation, the OPs did not even reply to her such notice. It was the duty of any of the OPs to reply stating the actual position as they have stated in their WVs.
This conduct on the part of OPs is nothing but sheer deficiency in keeping the promises as per Agreement, leaving the landlady in great distress.
We must then deduce whether the landlady/complainant is a consumer and the OPs are service provider.
8) To prove such vital point, we shall take resort to Hon’ble Supreme Court’s Judgement, in Civil Application No. 3302 of 2005, in Faqir Chand Gulati-Vs-Uppal Agencies Pvt. Ltd. & Anr, disposed on 10 July, 2008.
At clause 2(xiii) of the judgement, it is observed by the Hon’ble Supreme Court as, ‘In case of default in the event of any neglect, failure, default on the part of either the owner or the builder, the affected party shall have the right to Specific Performance of the said Agreement at the cost and risk of the defaulting party who shall be liable to pay damages….’
At clause 16(a) of the said judgement, it is stated, ‘where the owner/builder of a land who has entrusted the construction of a house to a contractor, has a complaint of deficiency of service with reference to the construction.’
At clause 19 of the Judgement, Hon’ble Supreme Court clarified in detail of how a builder becomes service provider against construction and owner becomes a consumer.
Therefore, the OPs are service provider and the owner/complainant is a consumer under them.
9) It is then clear that the complainant is a consumer and the complaint is maintainable. It is also clear that the OPs are deficient in rendering promised service as per the Agreement. So, the complainant deserves relief. In the prayer, complainant prayed for direction on the OPs to cancel the Agreement and to issue NOC for cancellation as was mentioned at para-3 of the discussion. The complainant also prayed for compensation of Rs 50,000/- and not even possession of agreed flats as per the Agreement, litigation cost, etc.
10) It is made clear that the Consumer Forum has no jurisdiction to give direction to OPs on the first two prayers. It is a matter to be settled between the parties through Specific Performance Act. The complainant is at liberty to seek redress at the appropriate Civil Court for Specific Performance for violation of the Agreement.
In the circumstances of what have been stated in the above discussion, we are constrained to pass
ORDER
That the complaint be and the same is allowed on contest against OP-2 and OP-3 in terms of section 13(2)(b)(i) of the C. P. Act, 1986 as amended so far and exparte against OP-1 and OP-4in terms of section 13(2)(b)(ii) of the Act ibid;
That all the OPs are jointly and severally directed to pay Rs 50,000/- to the complainant as compensation for her distress, harassment and agony caused by the OPs within 30 days from the date of this order;
That the complainant is at liberty to file suit for Specific Performance in the appropriate Civil Court for violation of the Agreement dated 11/01/2010 against the OPs;
That on non-compliance by the OPs to pay Rs 50,000/- to the complainant within the stipulated time, the complainant shall be at liberty to put the order into execution in terms of section 27 of the Act ibid.
Let the copies of the judgement be handed over to the parties when applied.
