HON'BLE MR. KAMAL DE PRESIDING MEMBER
Order No. : 07
Date : 08.08.2019
The instant Appeal is filed U/S. 15 and 17 (a) (ii) of the Consumer Protection Act. The instant Appeal is directed against the impugned judgement and order dated 27.02.2017 passed by the Ld. D.C.D.R.F., Burdwan in Consumer Complaint Case No. 10 of 2013. The Appeal is preferred on the following grounds.
For that the Ld. District Forum below acted illegally and with material irregularity in exercise of its jurisdiction and had arrived at an erroneous finding both in fact and in law.
For that the Ld. Forum below failed to consider that there was no question of not delivery of the said 5 flats to the complainant as she herself has since the beginning residing in the said building in question as will be evident from her address as appearing in the cause title of the petition of complaint.
It is alleged that the complainant is presently residing in the 2 finished flats which she converted into one and is in possession thereof. Therefore, complainant is already in possession of the said flats and there is no question of further delivery of possession of the said flats.
For that the Ld. Forum failed to consider that the complainant has suppressed the fact that she herself continued to live in the said building and never went away to another place.
It is also alleged that the complainant forcefully completed the finishing work of the said flat without the consent of the appellant.
For that the Ld. Forum failed to consider that the complainant has suppressed the fact that the appellant had filed a suit being T.S. 225 of 2012 before the Ld. Civil Judge, Senior Division at Asansol and, interalia, for recovery of Rs. 2 lakh from her.
It is also alleged that as an act of vengeance, the complainant, thereafter, filed the instant C.C. Case No. 10 of 2013.
It is also alleged that no shop room at all sold but merely car parking area has been sold.
For that the complainant has suppressed that there was in fact no deviation of the sanction plan at all whatsoever and Municipal Corporation issued occupancy certificate dated 28.05.2013, after inspecting the site and being satisfied about the compliance with the sanction plan.
It is also alleged that the complainant revoked the power of attorney on 21.04.2016.
It is also alleged that the complainant has no necessity for multiple flats as she has no issue.
It is also alleged that her only motive is to resale the three unfinished flats and having commercial motive. The complainant is not a consumer as understood in C.P. act, 1986.
It is also alleged that there was no defect in the goods supplied.
For that the Ld. D.C.D.R.F., Burdwan has acted arbitrarily and capriciously in passing the impugned judgement.
For that the Ld. D.C.D.R.R., Burdwan assumed erroneous jurisdiction and has exercised jurisdiction not vested in it by law. As a result, the impugned order is vitiated by gross and palpable error.
For that the appellant was not a service provider and never reneged to act as per the agreement.
For that there has been no deficiency in service provided by the appellant. There has been no imperfection or any adequacy in the service with the appellant.
For that the appellant had fully rendered reasonable and satisfactory of service unto the complainant.
For that the complainant had already performed almost all his obligations under the contract.
It is also alleged that the complaint case is false, fraudulent, harassing, misconceived, malicious and should have been dismissed with cost.
For that the impugned complaint is solely misconceived and groundless.
For that a civil suit is pending in connection with a matter in the local civil Court and competent jurisdiction and as such the impugned complaint had become infructuous.
For that the Ld. Forum has no territorial or pecuniary jurisdiction to entertain the case.
For that the impugned complaint case ought to have been dismissed.
For that the Ld. Forum has acted illegally in the exercise of jurisdiction vested on its.
It is alleged that the Ld. District Forum has no authority or power to try the dispute as it relates of housing construction in view of S. 12 (a) of the West Bengal Building (Regulation of permission of construction and Transfer of promoters) Act, 1993.
For that West Bengal Building (Regulation of Permission of Construction and Transfer of Promoters) Act, 1993 has ousted the jurisdiction of consumer fora to try housing dispute.
It is alleged that the Forum below passed the impugned judgement by passing the said Act of 1993.
For that the impugned judgement is palpably and illegal and bad in law and should be set aside.
The appellant has prayed for setting aside the impugned order dated 27.02.2017 passed by the D.C.D.R.F., Burdwan.
Let us take a cursory glance towards the case of the complainant.
The factual matrix of the case of the complainant is that the complainant decided to develop the property in question with a vacant land situated at Mohisila Colony under Mouza and Municipality Asansol with structure by developer - OP and both of them entered into an agreement on 16.12.2008 with certain terms and conditions for the proposed development of the land. The complainant also executed a general power of attorney on 16.08.2008 in favour of the OP – developer for the construction of the multiple storied building on behalf of the complainant. The parties also agreed that the OP will construct the flats according to sanction plan of the complainant. As per the agreement dated 16.12.2008 OP would hand over to the complainant two finished flats on the first floor in complete condition with super built up area of 850 sq. ft. including two covered garage in complete condition on the ground floor having 100 sq. ft. area. The windows will have box grilles and of aluminium door. But the OP failed to provide aluminium window as per agreement. OP agreed to hand over two flats and garages to the complainant within 18 months from the date of execution of the agreement i.e. 16.12.2018. OP – developer also received Rs. 10 lakh from the complainant on different dates on condition that he will hand over three unfinished flats to the complainant in different floors within stipulated period.
It is alleged that OP failed to deliver the flats within stipulated period of 18 months i.e. 28th December, 2010as agreed vide agreement dated 16.12.2018. The complainant was also asked to purchase materials on her own fund and was assured by the OP to reimbursed. On 25th January, 2012, the complainant was compelled to enter into her two agreed flats in incomplete position and she completed her two flats by her own expenses.
It is alleged that building material i.e. cement, rod, bricks, window panel etc. used by the OP for the construction of the agreed work was substandard and which was contrary to the agreement. The complainant also alleged that shortage of measurement of the flats.
It is also alleged that balconies of the flat were not constructed from outside i.e. using balconies. No paints in the door and windows were done. It is also alleged that there was no shop room in the building plan but OP also constructed and sold the shop room contrary to the agreement. The complainant had alleged unfair trade practices, and deficiency of service contrary to the contractual obligation, against the OP.
It is also alleged that OP refused to deliver the other three flats and denied to reimbursed the costs of the incomplete flats.
OP also filed written version in the forum below contending interalia that the complainant has no cause to file the case and the dispute is not at all a consumer dispute and that there is no relationship of consumer between the complainant and the OP.
It is also stated that the complainant undertook the agreement with the OP for commercial purpose.
OP also denied all the allegation made in paragraphs 1 to 15 in the petition of complaint.
It is stated that OP has not violated any condition of the agreement.
It is also ventilated by the OP that the complainant did not vacate the old existing building and thereby forced the OP to complete the work in two phases. After completion of the construction in the vacant area, the complainant shifted to a flat of her choice and then only OP could take up the work of demolition of the existing building.
It is also alleged that local people challenged the title of the complainant while the garbages after demolition was attempted to be stock piled at plot No. 1607. The construction over plot No. 207 had to be kept suspended as such regarding plot No. 1607, OP as plaintiff has filed a Title Suit in the Court of Ld. Civil Judge, Senior Division at Asansol.
It is also alleged that the complainant forced the OP to convert two flats into one cozee flat. As regards providing three unfinished flat to the complainant, the complainant had agreed to invest and the flats were to be prepared as per satisfaction of the OP and all these three flats have been duly handed over to the complainant but the complainant has not made full investment as envisaged in the agreement.
It is stated that OP has made the construction as per the agreement in between the parties. OP has already handed over an account to the complainant to show that the complainant is entitled to reimburse to an extent of Rs. 38,000/-. It is alleged agreement is fully in the nature of a joint venture and within the domain of Civil Court. The allegation about poor building material or shortage of measurement are all unfounded.
It is also stated that the flats have been constructed according to plan.
The allegation of lack of plaint of door and window are also not corrected.
It is stated that the complainant is to prove her allegation. It is also stated that the allegations as stated in the petition of complaint are all unfinished. The OP has prayed for dismissal of the complaint.
Upon contested hearing, Ld. Forum below was pleased to allow the complaint and passed a decree in favour of the complainant in terms of operating portion of the impugned judgement.
Being aggrieved by and dissatisfied with the impugned judgement and order dated 27.02.2017 passed by Ld. D.C.D.R.F., Burdwan in CC 10 of 2013, the OP has preferred the instant Appeal.
Decision with reasons
The main line of argument as advanced on behalf of the appellant is that this case is not maintainable in C.P. Act because the agreement executed between the appellant and the respondent is a joint venture agreement and the dispute in between the parties cannot be termed as consumer dispute and respondent is not a consumer.
We have gone through the agreement dated 16.12.2018. The said agreement does not appear to be a joint venture and the same, as it appears, is a simple development agreement between a land owner and a developer. Moreover, the dispute in between the landowner and the developer is a consumer dispute and is very well maintainable in C.P. Act.
We are fortified by a decision of Hon’ble Apex Court reported in Bunga VS S.V. Construction in Civil Application No. 944 of 2016. It has been held by Hon’ble Apex court in its solemn judgement that landowner is also a consumer under C.P. Act and builder is service provider.
From the agreement dated 16.12.2018 it does not appear that the landlord is sharing the profit and has control of interest, management or sharing liability of losses or profits. The landowner as we find is not a co-adventurer and has no control in the construction and participation in business.
In the second place it is also argued that by the Ld. Lawyer for the appellant that the Ld. Forum has no jurisdiction to adjudicate upon the case. As we know in a case between landlord or developer dispute, the value of the land on which the construction proposed to be developed as well as other relevant reliefs prayed for conjointly shall decide the pecuniary jurisdiction.
In this case the value of the land + other reliefs as prayed for by the respondent doesl not exceed the pecuniary jurisdiction of the Ld. Forum below and the Ld. Forum rightly exercised the jurisdiction and adjudicated upon the same. In this regard, we are fortified by a decision of the Hon’ble National Commission reported in 2012 (2) CPR 299 (NC) and also by the judgement in FA/1129/2017 Nandadulal Mitra & anrs. VS Asit Mukherjee @ Kashab Mukherjee. The valuation of Flats is not important in Development Agreement as it is difficult to find out the value of a Development Agreement. Clearly in the present case the consideration paid by the complainant was the value of the land owned by him and value of land along with other reliefs does not exceed the pecuniary jurisdiction of the Fora.
In the third place, it is contended by the appellant that Ld. forum below as no authority or power to try the instant case in view of Section 12 (A) of the West Bengal Building (Regulation or Promotion of construction and transfer by promoter’s) Act, 1993. The jurisdiction is Fora is barred by the Building Act, 1993.
It is true that the building act while creating a Forum U/S. 6 and barring the jurisdiction of the “Civil Court” U/S. 12 (A) does not provide either expressively or impliedly that a dispute brought by a home buyer against a promoter either unregistered or who has not obtained the permission to construction would not be maintainable U/S. 6 but nothing rely turns on it. It is up to the home buyer to choose his Forum in such a case which would include a Fora. Even if two remedies, one before civil court and other before consumer Forum are available, it is for him to decide as to which renwed he wants to avail. (Yashvant Rama Jadhav and ors. VS Shankat Hossain Staikh and Anr. reported in 2017 4 CPR (NC) 836 referred to). Moreover, no plaint of any civil suit is filed before us to ascertain the nature of the suit.
We think that the Forum under C.P. Act is competent to receive a complaint from a home buyer against a promoter if the formal has any grievances against the latter in respect of service provided pertaining to purchase of a flat or apartment.
The trend of decisions of Hon’ble Apex Court and Hon’ble National Commission and Hon’ble High Court is that the jurisdiction of the Consumer Fora should not and would not be curtailed unless there is an express provision pertaining the consumer forum to take up the matter which falls within the jurisdiction of civil Court or any other forum established under some enactment. If two different forum have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the consumer Forum would not be barred and the power of the consumer forum to adjudicate upon the dispute could not be negated.
So, we think that the Fora created by CP Act has jurisdiction to receive a complaint from a home buyer against a promoter and the jurisdiction and such jurisdiction is not barred in view of the provision of Section 12 of the Building Act. Section 12 (A) of West Bengal Building (Regulation of promotion of construction and transfer by promoters’ ) Act, 1993 does outset the jurisdiction of the consumer Forum. In this context we are fortified by a judgement passed by the Hon’ble High Court of Calcutta in land mark judgement in WP 23027 (W) of 2017 on 18.02.2019.
It is also contended from the side of the appellant that a Civil Suit is pending as instituted by the developer against the respondent and as such pending of a civil suit bars the instant complaint filed by the respondent before the Lower Forum and the complaint case before the Lower Forum as such is not maintainable but we are afraid, we cannot be consumes of opinion with such argument. We are hold that the case is maintainable in view of a judgment passed by the Supreme Court of India reported in 2008(10) SCC 345 & 2016 AIR (SC) 3488 as well as the judgement passed by the Hon’ble NCDRC, reported in 2017(4) CPR 836 (NC).
It has also been canvased from the side of the appellant that the respondent asked for 5 flats, as such there is a commercial motive and the complainant cannot be termed as a consumer within the meaning of C.P. Act.
But we are afraid we are unable to accept such argument or contention as advanced from the side of the appellant.
We find that there is no evidence to show that the respondent is involved in commercial activity of selling and purchasing the flats for commercial gain.
In the instant case the flats as we find are allocated to this respondent as landowner’s allocation and as such question of commercial purpose does not arise at all.
Appellant in the court below has not been able to lead any cogent evidence or establish that the respondent has been involved in selling or purchasing property business.
We are also fortified in such context by a judgement passed by Hon’ble National Commission in FA/237/2017, Aksay Sood VS M/S. Pal Infrastructure and developers Private Limited and another so the plea of the appellant that the respondent – OP obtained 5 flats for commercial motive has no leg to stand. In fact we find that the flats are allocated to this respondent as landowner’s allocation.
So, the objection raised by the appellant regarding non-maintainability of the case on the ground of commercial purpose is not substantiated by any cogent document any evidence, or otherwise.
So, the contention of the appellant that this case is not maintainable on the ground of commercial purpose has no leg to stand and as such, such argument does not appear to be acceptable to us. We also endorse the observations and finding of the Ld. Fora below regarding other issues like expert report, delay in delivery of possession of flats, absence of painting in the doors and windows, balconies hanging deviation from sanctioned plan and shoproom, non – providing of aluminium window as per the agreement.
In view of the discussion in the forging paragraphs and taking all the points agitated by the appellant and also looking into the materials and evidences on record we find that the Ld. Forum below has rightly passed the impugned judgement.
The impugned judgement appears to be well reasoned touching on all the points of controversy.
We find nothing to interfere into the impugned judgement.
The instant Appeal is devoid of any merit and is liable to be dismissed.
Hence,
ORDER
That the instant RBR/A/9/2019 be and the same is dismissed on contest.
The impugned judgement and order dated 27.02.2017 passed by the Ld. DCDRC, Burdwan in CC 10 of 2013 is upheld.
We make no order as to cost.
Let a copy of this order be supplied to the parties free of cost.
