Final Order/Judgment
Date of filing : 16 April, 2021.
Date of Order : 11 August, 2023.
Mr. DHIRAH KUMAR DEY, Hon’ble Member.
The instant case arises when Mr. Gobinda Gupta, the Complainant, filed a complaint U/S. 35 of the Consumer Protection Act, 2019, hereinafter called the said act, against (1) Mr. Binod Kumar Gupta, hereinafter called the Opposite Party or the OP, & (2) Mr. Ram Prakash Gupta, (3) Mr. Rajesh Gupta, (4) Mr. Ajay Gupta and (5) Mrs. Laxmi Gupta, hereinafter called the Proforma Opposite Parties or Proforma OPs, alleging deficiency in service from the part of the OP and Proforma OPs.
The facts, as stated in the complaint petition and emerged from the documents attached with it, are that the complainant’s father namely Late Rama Sankar Gupta, since deceased, was the owner of the premises no. 32, Baroda Charan Bhattacarjee Lane, P. S. & district Howrah, measuring about 01 Cottah 8 Chittacks 18 sq. ft. with old dilapidated structure thereon and one Mrs. Shila Devi Gupta was the owner of the premises no. 33, Baroda Charan Bhattacarjee Lane, P. S. & district Howrah, measuring about 01 Cottah 00 sq. ft. with old dilapidated structure thereon. Both of them jointly entered into a development agreement with the Principal Opposite Party/Developer, Sri Binod Kumar Gupta, on 13/12/2010 and executed a Power of Attorney in favour of the OP/Developer for developing these two premises jointly by constructing a G+3 storied building. It was decided in the agreement that the owners together would get 48% of the constructed building. After the construction of the building the complainant’s father ‘somehow’ got possession of a flat of area 470 sq ft at the ground floor and a flat of area 470 sq ft at the 1st floor and also received Rs.2,00,000/-, refundable after getting possession, from the OP/Developer. Complainant’s father died on 20/06/2019 and his mother also died on 02/03/2020. Mrs. Shila Devi Gupta also died and her heirs, who have been made Proforma OP in this complaint, became the owners of her allocation. Complainant alleges that his father, while alive, and he himself repeatedly requested the OP/Developer to finalize their allocated portion but each time the OP/Developer avoided their requests, rather insisted to return the refundable amount given to them. Complainant sent a letter through his advocate on 10/02/2021 requesting the OP to finalize his allocated portion as per agreement executed by his demised father, but this effort remained fruitless for which complainant filed this instant complaint before this Commission praying for (i) a direction to the OP/Developer to deliver owner’s allocation as per agreement with proper measurement of the entire building, (ii) injunction, (iii) compensation of Rs.3,00,000/- for mental agony due to deficiency in service and unfair trade practice of the OP, (iv) litigation cost of Rs.50,000/- and any other relief(s) as this Commission deem fit and proper.
Complainant filed copies of (i) notarized Development Agreement executed on 13/12/2010, (ii) registered General Power of Attorney dated 13/12/2010, (iii) advocate’s letter issued to the OP/Developer on 10/02/2021 and (iv) valuation of the total premises issued by the Directorate of Registration & Stamp Revenue issued on 10/04/2021as annexure to the complaint petition.
After admitting the complaint, this Commission sent notice to all the OP and Proforma OP to appear and file their written version. Postal track Report shows that all the notices returned with postal remarks in all the reports as “Item Returned Addressee Left without instructions” which was taken as good service. None appeared on behalf of any OP & Proforma OPs and then the case proceeded ex-parte. Complainant then filed his Examination-in-Chief in Affidavit/Evidence on Affidavit. Ex-parte argument was heard and complainant filed his Brief Notes on Argument. We have now come to the position to deliver the final order in this case.
DECISION WITH REASON
The material facts as emerged from the complaint petition and the annexed documents state that the complainant’s father and one Smt. Shila Devi Gupta, whom the complainant’s advocate stated as the complainant’s aunt, jointly executed a Development Agreement with the OP/Developer, Sri Binod Kumar Gupta, on 13/12/2010 for construction of a G+3 storied building at the premises no. 32, Baroda Charan Bhattacarjee Lane & 33, Baroda Charan Bhattacarjee Lane, P. S. & district Howrah, being total area of about 02 Cottah 08 Chittacks 18 sq ft. Complainant described the OP/Developer as the princilpal OP. It is written in the Development Agreement that the OP/Developer would construct the building within 18 months from the date of obtaining the sanctioned plan of the building and vacant possession of the premises. It is also written in this agreement that the owners’ allocation would be 48% (including existing tenanted portion) in such a manner that the entire ground floor and part of 1st floor to arrive at 48% (ref. clause 4.9 of the agreement). It is also written (clause 4.9) that the developer has deposited Rs.2,00,000/- to the owners as security which was refundable on or before taking possession of the owners’ allocated area. We have noted that the complainant stated in Para-3 of his complaint petition that his father, as well as his demised mother and he himself, did not get the share of third floor from the OP/Developer. We have failed to understand this allegation as the owners’ share would be confined within the entire ground floor and part of the 1st floor as per the agreement. It is also not clear what is the fate of other owner’s share as Smt. Shila Devi Gupta, since deceased, had entered into the development agreement together with the complainant’s father. Complainant made, as per his complaint petition, the legal heirs of deceased Smt. Shila Devi Gupta as the Proforma OPs but the complainant has not clarified why they have been described as the Proforma OPs. Be it mentioned here that the address of the OP/Developer is 13, Iswar Dutta Lane, P. S. & District Howrah, as written in the Development Agreement as well as in the General Power of Attorney. But the complainant had stated the address of OP/Developer in his complaint as: 33, Baroda Charan Bhattacharjee Lane, P. S. & District Howrah. How he got this address of the OP/Developer is not known to us, especially when the development agreement was executed on 13/12/2010 and the building has been completed and the flats had been handed over to the owners/purchasers. Complainant alleges that the Principal Opposite Party, i. e. the OP/Developer, is guilty of deficiency of service. But he has not given any description what kind of deficiency has been occurred by and from the part of the OP/Developer, except from the claim of not giving him his legitimate allocation. He failed to apprehend the clauses of the development which states that the entire owners’ allocation is confined in the ground and the 1st floor of the building and not in other portion except the common portions. We cannot make out the complainant’s claim, stated in Para-2 of the complaint, that he is the lawful owner of 60% of total owners’ allocation as there is no specific demarcation of allocation of the two land owners in the development agreement. Clause 4.9 of the development agreement states that if any civil or criminal dispute will not arise, the developer would complete the construction work of the owners allocated 48% area within 18 months from the date of obtaining the sanctioned plan as well as taking vacant possession of the said property. It is also stated in this clause that: “ …. the developer shall have to deliver the possession of the owner’s allocated 48% (including existing tenanted portion) area in the proposed new building within the said period of 18 months to the owners in the manner as follows:-
Ground Floor : Entire area
First Floor : Remaining area of 48% area.
And that apart the developer has deposited an amount of Rs.2,00,000/- only on this date to the owners towards the security deposit and the said amount will be refunded on or before taking possession of the owners’ allocated area.”
This statement coupled with the statement made in the complaint petition clearly states that the building has been completed and the complainant’s father/one of the land owners has got possession of two flats at the ground floor and at the first floor, each of area 470 sq ft and also received Rs.2,00,000/- as security deposit which had not been refunded to the OP/developer during or after taking possession of the flats. Complainant states that the developer failed to deliver possession but somehow his father got possession of the two flats. He also states that his father and he himself requested the Principal OP to finalize his allocated area which the principal OP failed to do so. Ultimately he sent a letter through his advocate to the principal OP/developer on 10/02/2021 requesting to deliver rest constructed area and also to give actual measurement of the building, but the developer did not respond to this request. We find no document which says that the complainant’s father and he himself has taken any step regarding finalizing his/their allocated portion. We do not find any reason why, when and how his father ‘somehow’ got possession’ of the two flats. Complainant prays for directing the principal OP to deliver owners’ allocation to the complainant with proper measurement of the building. But he has not mentioned that he is ready to refund the security deposit kept with him. In such a situation where the complainant has no claim for possession letter or completion certificate and the complainant has not stated the specific date of ‘somehow getting possession’ of two flats the instant complaint is barred by limitation under Section 69 of the C. P. Act, 2019 and a mere letter through his advocate on 10/02/2021 does not revive the cause of action in this case. Moreover, complainant claimed in Para-3 of his complaint/Para-4 of his Examination-In-Chief that his father did not get his share of the third floor, which is not supported by the development agreement. Complainant claimed that he is the lawful owner of 60% area of owners’ allocation which is also not supported by the development agreement. The development agreement has not specified the two owners’ allocated portions separately, only 48% of the building has been allotted to the two landowners and their shares are limited in the entire ground floor and part of the first floor. The Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in its judgment in CC/129/2016 (Soumen Maity Vs. Subhas Das) states that : “It is trite law that the parties are bound by the terms of agreement. When either of parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement.” In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. -Vs.- DHL World Wide Express Courier Division of Airfreight Ltd., Civil Appeal No. 9057 of 1996) the Hon’ble Supreme Court has observed as: “It is seen that when a person signs a document which contains certain contractual terms as rightly pointed out by Mr. R. F. Nariman, Ld. Sr. Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms of the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true as contended by Mr. M. N. Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of contract based upon the fact situation and may grant remedy. But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established 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”.
Be it mentioned here that the complainant has not used any word about the tenants. We have come across this matter only in the development agreement , but under whose ownership such tenancy was prevailing is not clear. However, taking this matter in our mind we can assume that the tenants would have been incorporated in the newly constructed building in any manner, may be the remaining portion of the 48% of the owners allocation might have been used for tenant(s)’s usage but that is not clear from the agreement and the complainant remained silent in this matter.
Thus, in our opinion the complainant has not come before this Commission with clean hands and his claim cannot be considered as justified. Had the complainant added the actual address of the OP, then there was a chance that the OP could appear and contest the case. There is no contrary material to counter or rebut the case as none of the OP and Proforma OPs appeared to contest the case. However, the material facts which have been put forward before us by the complaint do not enthrall us to support the complaint as a consumer complaint. Complainant failed to establish that there is a deficiency occurred by the OP except the mere claim of not finalizing the owners; allocation. Thus, this instant complaint having no merits is liable to be dismissed with no cost. Complainant can have the liberty to move to the appropriate court of law with his claim.
Hence,
it is
ORDERED
That the complaint Case bearing No. CC/112/2021 is dismissed ex parte for want of merit and with no cost.
Dictated and corrected by me
Member.
