1. Heard Mr. Sanjay Ghose, Sr. Advocate, assisted by Mr. Siddhartha Chaudhury, Advocate, for the complainant and Mr. Rana Mukherji, Sr. Advocate, assisted by Mr. Parth Sil, Advocate, for the opposite party. 2. Anubhab Construction (a Partnership Firm, registered Indian Partnership Act, 1932) has filed above complaint, for directing the opposite party to (i) handover possession of the flats and car parking spaces as allocated to its share under Development Agreement dated 16.01.2013 and Supplementary Agreement dated 13.01.2015, forthwith; (ii) allow the complainant to enter the site of the project; (iii) obtain “completion certificate” of the project from competent authority; (iv) pay Rs.50000/-, per month per flat, falling in the share of the complainant, as delayed compensation from 19.11.2017 till the date of actual possession the flats along with car parking spaces; (v) pay Rs.one crore, as compensation for mental agony and harassment; (vi) pay Rs.200000/-, as costs of litigation; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case. 3. The complainant stated that City Star Ganguly Projects LLP (the opposite party) was a Limited Liability Partnership Firm, registered under the Limited Liability Partnership Act, 2008 and engaged in the business of development and construction of multi-storey buildings. Amit Ganguly, the partner of the opposite party used to persuade the owners of the land, for development and construction of multi-storey buildings and after entering into development agreement, used to adopt all tactics to grab the land. Amit Ganguly had much clout over the local administration and strong political support. The complainant was owner of the land, admeasuring 82 cottahs 5 chittacks 33 sq.ft. (143 decimals) at Mouza Barhans Fartabad. Amit Ganguly persuaded the complainant for construction of multi-story building over the said land. The complainant entered into Development Agreement with City Star Griha Udyog Private Limited & Ganguly Home Search Private Limited dated 13.11.2011, on principal to principal basis for construction of multi-story building over the said land, who later on authorised/transferred development work to City Star Ganguly Projects LLP through resolution dated 15.11.2012. Then the complainant entered into Development Agreement with the opposite party dated 16.01.2013, on principal to principal basis for construction of multi-story building over the said land. Under the development agreement, 36% of super built-up area including car parking space, common areas and facilities including equivalent proportionate undivided share in the ultimate roof and underneath of the building. In addition to 36% share in super built up area, the opposite party had to pay Rs.3/- crores, out of which Rs.1.5 crore was interest free refundable advance and Rs.1.5 crore shall be adjusted at the time of delivery of possession over the complainant’s share. Article-VII of the development agreement provides that 48 months period from the date of obtaining vacant possession of the land, for completion of the project and handing over possession with grace period of six months. The complainant also executed a deed of General Power of Attorney dated 16.01.2013, authorising Amit Ganguly to exercise all its right to carry out the construction of multi-story building over the said land. The opposite party got Layout Plan No.1254/CB/30/54 dated 19.11.2013, sanctioned from the competent authority for construction of lower ground plus upper ground plus nine storied and lower ground plus upper ground plus fifteen storied residential building, on the basis of above deeds and started construction. Thereafter, a Supplementary Agreement dated 13.01.2015 was executed between the parties, by which actual flats/car parking spaces falling in their shares were allocated and the details were mentioned in Second Schedule. After execution of supplementary agreement, the opposite party started to find out nooks in the matter in order to delay implementation of the project. The opposite party, vide letter dated 14.02.2015 asked the complainant to clear the past dues of electricity. The complainant, vide letter dated 20.02.2015, requested the opposite party to make necessary payment and assured that the said money would be repaid by October, 2015. The opposite party, vide letter dated 08.05.2015, asked for clarification of tittle of Holding No.50, although copy of title deed was supplied to the bankers of the opposite party also to the authorities at the time of sanction of layout plan. The complainant vide letter dated 14.05.2015, informed that original deed may be examined in its office and copy may be collected. Although the opposite party kept on writing letters but nobody turned up for examination of original and collecting its copy. Period of 48 months from the date of development agreement expired on 15.01.2017. The complainant tried to inspect the flats of its allocation on 1st and 3rd March, 2017 but the officials of the opposite party did not permit to inspect the flat. Then the complainant wrote a letter dated 22.03.2017 to the opposite party for permitting to inspect the site. The complainant again wrote a letters dated 26.04.2017, 13.06.2017 and 27.06.2017 to the opposite party to fix any time and permit to inspect the site. The opposite party, vide letter dated 30.06.2017, refused to entertain any such letter. The complainant, then filed Title Suit No.126 of 2017, for mandatory injunction, directing to the opposite party to permit inspection of the flats falling in the share of the complainant and for declaration that the complainant had right to execute agreement for sale of the flats falling in its share and collect earnest money. Civil Judge (Senior Division), Baruipur dismissed the said suit under Order 7 Rule 11 C.P.C., vide order dated 14.09.2017. The complainant filed Civil Appeal No.12 of 2017 from above order, which was dismissed on 15.06.2018. The period of 48 months expired long before. The complainant therefore gave legal notices dated 12.03.2018 and 14.09.2018, for handing over possession of the flats and car parking spaces of its share. The opposite party send reply notice date 28.09.2018, stating that as the complaint has failed to perform its obligation under the development agreement and forced the opposite party in civil and criminal litigation as such the project was delayed and still under development. The complainant gave reply notice dated 10.11.2018 and denied the allegations and filed this complaint on 12.03.2019, alleging deficiency in service and unfair trade practice. 4. The opposite party filed its written reply on 30.11.2021, in which, they raised preliminary objections relating to maintainability of the complaint i.e. (i) The complainant is not a consumer and transaction between the complainant and the opposite party is business to business transaction, for commercial purpose. (ii) The complaint is barred on the principle of res-judicata, inasmuch as for similar reliefs T.S. No.126 of 2017 was filed in Civil Court, which was dismissed on 14.09.2017. (iii) The complaint is barred by the provisions of Specific Relief Act, 1963; and (v) Jurisdiction of this Commission is barred under Commercial Courts Act, 2015. The complainant was constituted through Partnership deed dated 01.02.1999, in which, it has been stated that both the partners were already engaged in their individual business and this firm was being constituted for doing new business without disturbing their existing business. The commercial activities of the complainant has again been re-iterated in revised Partnership deed dated 21.05.2008. The complainant sold 47 flats during 2009 to 2010 and actively involved and purchase and sale of the flats/immovable properties etc. Development Agreement dated 16.01.2013, created a joint venture to commercially exploit of the land belonging to the complainant. The complainant, in its Supplementary Affidavit filed on 10.04.2019, has elaborated its commercial activities and objects of the partnership firm. In the complaint, the complainant has asserted its right of supervision of joint venture activities. Allegation that partnership firm was constituted for earning livelihood of the partners is false and contrary to various recitals, the facts as stated above and other evidence. Three partners of the complainant, namely (i) Narayan Chandra Mukherjee, (ii) Mrs. Lily Mukherjee and (iii) Anubhab Mukherjee are members of same family and running other business entities, like Welkin Medicare Pvt. Ltd. and Welkin Foundation. Welkin Medicare Pvt. Ltd. runs various diagnostic centres in Kolkata. Welkin Foundation runs a school in Kolkata. From these commercial entitles, the partners had independent income of several lacs per year. The land, which are being developed under Development Agreement dated 16.01.2013, were purchased through 15 sale deeds during September, 2006 to January, 2008 for the purposes of development of township and selling its unit. Delay in completing the project has occurred due to reasons beyond the control of opposite party, non-cooperation and harassing attitude of the complainant. After execution of Development Agreement, the opposite party applied for necessary permissions and sanctions under the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. Layout plan was sanctioned on 19.11.2013. Then ground breaking ceremony was performed on 01.12.2014. Previous owners of the land had huge electricity dues as such West Bengal Electricity Board was not granting new electricity connection to the opposite party, which was necessary for construction activities. The opposite party, vide letter dated 14.02.2015, requested the complainant to clear the past dues of electricity. The complainant, vide letter dated 20.02.2015, asked the opposite party to make payments and assured that the said money would be repaid by it till October, 2015. Ultimately the opposite party cleared electricity dues of Rs.443040.43 on 21.03.2017 and obtained electricity connection. The opposite party applied for a loan to carry out the construction work. The bankers required for original title deeds of the land for sanction of the loan. The opposite party, vide letter dated 08.05.2015, requested for title deed, which was avoided for a quite long time. Building plan of Tower No.4 was sanctioned on 28.03.2017. Thereafter, West Bengal Housing Industry Regulation Act, 2017 was enacted w.e.f. 17.10.2017 and West Bengal Housing Industry Regulation Rules, 2018 was notified on 05.06.2018. The opposite party had to get fresh registration, permissions and sanctions from West Bengal Housing Industry Regulatory Authority, which were applied on 29.09.2018. The project was registered with West Bengal Housing Industry Regulatory Authority on 30.11.2018 for a period from 30.11.2018 to 30.09.2021 and extended till 30.06.2022. The opposite party was proceeding with construction with full spring. However, pandemic Covid-19 spread in the country since March, 2020 and lockdown was imposed w.e.f. 22.03.2020. In the meantime, the complainant started issuing notices, filed Title Suit No.126 of 2017 lodged FIR of Case Crime No.398 of 2018 at P.S. Sonarpur against the opposite party and filed this complaint. During pendency of this complaint, the complainant affixed various hording and displayed prejudicial contents on it. The complainant got published public notice in newspaper on 25.07.2021 and 31.07.2021 and thereby prevented the buyers from purchasing flats in this project, stating that dispute was pending in court. The complainant gave notice to various authorities for not registering any agreement in respect of the flat under this project. Additional Sub-Registrar Garia, 24 Parganas issued a show cause notice to the opposite party dated 29.07.2021. Due to continuous bad publicity, State Bank of India stopped credit facility to the opposite party vide letter dated 24.06.2021. The home buyers came in panic and stopped payments of the instalment and fresh booking. Thus source of fund of the opposite party has been badly affected/blocked due to bad publicity of the complainant. The delay was caused due to non-cooperation of the complainant inasmuch the complainant has not given possession of the land free from all encumbrances and when he was asked to deposit previous dues of electricity then he shirks from his responsibility and asked the opposite party to clear the dues. Thereafter due to change in law and enactment of West Bengal Housing Industry Regulation Act, 2017 and consequent fresh approval from the authorities created under this Act. The work was stopped due to lockdown. Thereafter by making bad publication and putting a hording the complainant has caused substantial financial loss due to which the constructions have become slow. The opposite party is not avoiding to make bad publications and still making publication in the newspapers in the year 2021 also. There is no deliberate delay on the part of the opposite party inasmuch as it is well known fact that the delay in civil construction always used to result in increase of cost of labour and material. The complaint has been filed malafide and it is liable to be dismissed. 5. The complainant filed rejoinder reply, in which, the complainant has stated that under the development agreement the entire control of the project is in the hand of the opposite party and it cannot be called as joint venture. The complainant did not obtain any licence for development of the land under West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, as such, it cannot be said that the complainant had any intention to develop the land for profit. The development agreement cannot be termed as business to business transaction under the law. Under Clause 4.1 of the Development Agreement, it has been clearly mentioned that land owner hereby grants subject to what have been provided, an exclusive right to the developer to build upon and to commercially exploit the said premises and construct the new buildings or buildings on the said premises in accordance with the building plan. In the complaint also the complainant has not prayed for supervision of the project rather only prayed for their entrance to inspect the flats falling in its share. The dismissal of Title Suit No.126 of 2017 under Order VII Rule 11 C.P.C. has no effect of res-judicata. It has been denied that the Development Agreement was executed for the motive for earning profit. The partnership firm purchased the land for earning the livelihood of the partners. The opposite party required to enter into a fresh supplementary agreement before commencing construction of Tower-4. Public interest, if at all, is best served by preventing the opposite party from duping innocent third party purchasers. M/s. Welkin Medicare Pvt. Ltd. and M/s. Welkin Foundation are separate legal entities. They have nothing to do with this complaint. Under Article 7 of the Development Agreement dated 16.01.2013, the opposite party was required to handover possession within 48 months with grace period of six months. The said period has expired before spread of Covid-19. The opposite party has committed deficiency in service. For smooth functioning of the project, the opposite party cleared the electricity dues on 21.03.2017 before enactment of the Act of 2017. Without handing over the flats falling in the share of the complainant, the opposite party has no right to deal with the flats falling in its share. It is denied that the public notice has jeopardised the project. Various criminal cases were registered against Amit Ganguly which shows his reputation. 6. The complainant filed Supplementary Affidavit and Affidavit of Evidence of Narayan Chandra Mukherjee. The opposite party filed Affidavit of Evidence of Amit Ganguly. Both the parties have filed their written submissions. 7. This Commission, after hearing the parties, by order dated 13.01.2020 rejected the preliminary objection relating to maintainability of the complaint raised by the opposite party. The opposite party challenged the order dated 13.01.2020 in Civil Appeal No.1788 of 2020. Supreme Court by judgment dated 21.10.2021 disposed of the appeal and set aside the order dated 13.01.2020 and observed that while deciding the complaint, this Commission shall also decide the issue relating to maintainability of the complaint afresh. 8. The complainant has relied upon the judgment of Supreme Court in Faqir Chand Gulati Vs. Uppal Agencies Private Limited and another, (2008) 10 SCC 345 and Bunga Daniel Babu Vs. M/s. Sri Vasudeva Construction, (2016) 8 SCC 429 and submitted that Supreme Court held that for constituting “joint venture” there must be (i) Joint ownership and control of property; (ii) Sharing of expenses, profit and losses, and having and exercising some voice in determining division of net earning; (iii) Community of control over, and an active participation in management and direction of business enterprise and (iv) Intension of parties express or implied; (v) Fixing of salary by joint agreement. These ingredients are missing in the present case therefore, the Development Agreement dated 16.01.2013 cannot be termed as business to business transaction. The relation of the complainant with opposite party is a relation of “consumer” and “service provider” and the consumer complaint is maintainable. 9. In Faqir Chand Gulati’s case (supra), the consumer complaint was filed in the year 1994 i.e. prior to the amendment of Section 2(1)(d)(ii) of the Act. At that time exception i.e. “but does not include a person who avails such services for any commercial purpose” was not there, as such, this exception was not subject matter of interpretation in that case. In Faqir Chand Gulati’s case the only argument was raised that collaboration agreement was a joint venture and there was no relationship of consumer and service provider between the complainant and the opposite party. Supreme Court relying upon the various clauses of the Collaboration Agreement held that as in joint venture, the community of control over, and active participation in the management and direction of business enterprises was one of the essential ingredients. Since in the collaboration agreement, the land owners had no such right, therefore, it cannot be treated as joint venture. In Bunga Daniel Babu’s (supra), Memorandum of Understanding for development of the land was executed on 18.07.2004 i.e. subsequent to the amendment of Section 2(1)(d)(ii) of the Act. Supreme Court in this case held that what is required to be scrutinized is whether there is any joint venture agreement between the parties. If the land owner has no say or control over the construction and participate in the business, it is immaterial as to how many of flats were falling his share. 10. We have considered the argument of the counsel for the parties and examined the record. The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:- Section-2 (1) (d).- “consumer” mean any person who,- (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or (ii) hires or avails of any services for consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails such services for any commercial purpose; Explanation.- For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning livelihood by means of self employment. Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;” 11. The term “housing construction” was added by Act No.50 of 1993, under Section-2(1)(o) of the Act. Earlier the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 under Sction-2(1) (d) (i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1)(d) (ii) was also amended and the term “but does not include a person who avails such services for any commercial purpose” was added in it and the Explanation was placed in last. Scope of the expressions “commercial purpose” and the Explanation as well as “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. 12. The interpretation of the phrase “commercial purpose” again come for consideration before in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers and others, (2020) 2 SCC 265 in which Supreme Court has given various guidelines for deciding the commercial purposes i.e (i) manufacturing/industrial activities or business-to-business transactions between the commercial entities. (ii) the purchase of the good or service should have close and direct nexus with a profit-generating activity then it would be terms as “commercial purpose”. The phrase was again examined in Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, in which Supreme Court held that it is the purpose to which the goods so brought or put is material for deciding as to whether it was for commercial purpose or not. The legislative intent is to keep the commercial transactions out of the purview of the said Act. 13. In the light of aforesaid observations of Supreme Court, the present case has to be examined. Admittedly, the complainant is a partnership firm having three partners namely, Shri Narayan Chandra Mukherjee, Smt. Lily Mukherjee and Anubhab Mukherji. The deed of partnership firm has recited as “to start a new business primarily for a land ownership in the south-western part city of Kolkata which is witnessing rapid urbanization in the emerging trade line for civil construction, land development and promotion of civil planning”. In the revised partnership deed dated 21.05.2008, it has been mentioned that principal business of partnership firm (Anubhab Construction) shall continue to be any or all that of purchasing land in the name of partnership firm selling land so purchased making construction on the said land so purchases. The opposite party has further stated that during 2009 to 2010 the complainant has sold 47 flats in the project Welkin Heights. All these facts are not disputed by the complainant, as such, it is fully established that the complainant is a commercial entity engaged in the business of purchase of land and selling the plots and flats. The Development Agreement dated 16.01.2013 was executed for development and construction of the land of the complainant in which the complainant has 36% share of the built up area (total 48 flats) was falling in the share of the complainant. In such circumstances, it is fully proved that the complainant has availed the services of opposite party for “commercial purpose”. Even if Development Agreement dated 16.01.2013 cannot be termed as a joint venture as the complainant has no control over the development works of the project, but the purpose of availing the services of opposite party is a commercial purpose. 14. Now it has to be examined as to whether the service has been availed for earning livelihood by way of self-employment of the partners. The opposite party has stated that Narayan Chandra Mukherjee, Smt. Lily Mukherjee and Anubhab Mukherji belong to same family. Apart from this partnership firm, the family also owned M/s. Welkin Medicare Pvt. Ltd. which is running several diagnostic centres in Kolkata and M/s. Welkin Foundation, which is running a school in Kolkata. From these concerns the partners of the complainant firm had an individual income of more than Rs.10/- lacs per year. These facts have not been disputed by the complainant rather only it has been stated that M/s.Welkin Medicare Pvt. Ltd. and M/s. Welkin Foundation had nothing to do with the transaction in the present case. But independent income for these two concerns of the partners have not denied, as such, there is no reason to believe that this services has been availed for the purposes of earning livelihood by way of self-employment. As such the complainant cannot be termed as a “consumer” and the complaint is not maintainable. ORDER In view of aforesaid discussions, the complaint is dismissed as not maintainable with liberty to approach appropriate forum for required relief. |
