PER: HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter refer to as ‘the Act’) is at the behest of a couple/purchaser against a construction company (Opposite Party No.1) and its Regional Head (Opposite Party No.2) on the allegation of deficiency of services, primarily on the part of Opposite Party No.1 in a dispute of housing construction.
In a capsulated form, complainants case is that on 05.09.2011 they entered into an agreement for sale with the erstwhile OP No. 1 Company (Happy Highrises Limited) to purchase of a residential flat measuring about 1101 sq. ft. super built up area being unit No. 204 on the 2nd floor in the Tower named ‘Kanchenjunga’ together with right to use one Multi Level Car Parking space as mentioned in part- I and part -II of Third Schedule to the agreement for sale in a complex christened ‘Godrej Prakriti’ lying and situated at Municipal holding No. 187F/1, B.T. Road, P.S.- Khardah, Kolkata- 700115, Dist- North 24 Parganas within the local limits of Ward No. 14 of Panihati Municipality at a total consideration of Rs. 27,23,874/- for the flat and Rs. 1,50,000/- for the car parking space aggregating Rs. 28,73,874/-. The complainants have stated that in accordance with the payment schedule, he has paid the consideration amount regularly. In the agreement it was stipulated that the OP No. 1 company will deliver the subject flat in complete condition within 30.06.2014. Accordingly, the complainants enquired with the Opposite Party the reasons for non-delivery of possession, the Opposite Parties assured the complainants that they will try to hand over the possession within the extended time limit of 31.12.2014 and the complainants would be compensated for delayed delivery of possession. Subsequently, on 25.08.2015 the OP No. 1Company issued a notice of possession and executed the sale deed in favour of the complainants on 14.10.2015. On 08.11.2016, the complainants received Rs. 1,05,102/- as compensation for delay in delivery of possession for the period in between 01.07.2014 and 31.12.2014. The complainants have alleged that the OP company has not provided the compensation in terms of clause 15.5 of the agreement and also the common benefits and facilities in terms of the agreement for sale and in this regard all the requests and persuasions including the legal notice went in vain. Hence, the complainants approached this Commission with payer for following reliefs, viz.- (a) an order directing the Opposite Parties to compensate the complainants with payment of interest for delayed delivery of possession of the residential unit No. 204 on 2nd floor in the Tower named ‘Kanchenjunga’ of the complex knows as ‘GODREJ PRAKRITI’ lying and situated at the municipal holding No. 187F/1, B.T. Road, Kolkata-700115 for the period from 1st January 2015 to 25th
August, 2015 @ 9% per annum amounting to Rs. 2,28,181/- along with further interest on Rs. 2,28,181/- for the period from 19.12.2015, till the actual date of payment @ 18% per annum; (b) an order directing the Opposite Parties to provide the complainants Completion Certificate, swimming pool, football ground, Multi-speciality Hospital, Retail Store, Sewerage Treatment Plant, Boundary wall at the project site to ensure adequate safety and security, electricity supply at the said Unit and provide each and every common facility and amenity in terms of the Deed of Conveyance dated 19.12.2015 which duly registered on 08.02.2016 for the period from 01.01.2015 till the payment at 18% p.a.; (c) an order directing the Opposite Parties to pay Rs. 5,00,000/- (Rupees Five Lakhs only) as compensation to complainant for deficiency of services and negligence on the part of the Opposite Parties in not providing the facilities and amenities and Completion Certificate as detailed in prayer (b) above immediately upon execution of the Deed of Conveyance dated 19.12.2015 read with the Agreement for sale dated 09.09.2011 and in accordance with the promises and assurances given by the Opposite Parties at the time of publicity of the project and invitation for booking of the said Unit; (d) an order directing the Opposite Parties to pay Rs. 1,00,000/- as compensation to complainant for causing mental harassment and agony; (e) an order directing the Opposite Parties to pay a sum of Rs. 30,000/as legal expenses and other incidental costs.
The Opposite Party Nos. 1 and 2 by filing a written version have stated that the complainants had entered into an agreement for sale with Happy Highrises Limited but in view of the order dated 29.03.2017 passed by the Hon’ble National Company Law Tribunal, Mumbai Bench in Company Scheme Petition No. 23 of 2017 passed an order by which Happy Highrises Limited amalgamated with Godrej Properties Limited and in view of such amalgamation the said Happy Highrises Limited merged with Godrej Properties Limited and all assets liabilities, right, title and interest and obligations of Happy Highrises Limited have been transferred and vested with Godrej Properties Limited with effect from 01.05.2016. The OPs have stated that in terms of the agreement for sale dated 09.09.2011, the deed of conveyance was executed on 19.12.2015 and prior to that notice of possession was issued on 25.08.2015. The complainants had received the possession and by a letter/undertaking dated 08.11.2016 declared that they have no claim against the OP company in respect of the said unit on receipt of Rs. 1,05,102/- as compensation and also further affirmed the declaration toward no dues claim to the OPs. and, therefore, the complaint should be dismissed.
On behalf of complainant one Sri Pinaki Guha Thakurta, Constituted Attorney of the complainant has tendered evidence through affidavit. The said person has also given reply against the questionnaire set forth by the OPs.
On the other hand, on behalf of OPs, one Sri Abhishek Mitra, Authorised Signatory of OPs has filed the evidence through affidavit. The said Abhishek Mitra has also given reply against the questionnaire set forth by the complainant. Besides the same, both the parties have relied upon the several documents. At the time of final hearing, on behalf of Opposite Parties brief notes of argument has been filed. Though the complainant was represented through the Ld. Advocate yet he did not choose to file brief notes of argument.
The overwhelming evidence on record make it abundantly clear that the complainants had entered into an agreement with Happy Highrises Limited on 09.09.2011 to purchase of a residential flat measuring about 1101 sq. ft. super built up area being unit No. 204 on the 2nd floor in the Tower named ‘Kanchenjunga’ together with right to use one Multi Level Car Parking space as mentioned in part- I and part -II of Third Schedule to the agreement for sale in a complex christened ‘Godrej Prakriti’ lying and situated at Municipal holding No. 187F/1, B.T. Road, P.S.- Khardah, Kolkata- 700115, Dist- North 24 Parganas within the local limits of Ward No. 14 of Panihati Municipality at a total consideration of Rs. 27,23,874/- for the flat and Rs. 1,50,000/- for the car parking space aggregating Rs. 28,73,874/-.
Mr. N.R. Mukherjee, Ld. Advocate for the complainant submits that though the complainant has claimed several reliefs on various grounds including common facilities and benefits like swimming pool, football ground, Multi-speciality Hospital, Retail Store, Sewerage Treatment Plant, Boundary wall etc but as they are relating to common amenities /facilities, when no permission has been sought for to initiate a ‘class action’ in accordance with section 12 (1)(c) of the Act, the complainant is not entitled to any relief regarding common facilities and benefits. Therefore, he has confined his claim only in respect of his compensation drawing our attention to clause 15.5 to the agreement for sale executed between the parties. The relevant clause runs as follows:
“15.5. In the event there being no default on the part of the Purchaser, the Owner fails to deliver possession of the Unit within 30th June, 2014, the Owner shall pay interest on the amount to be paid by the Purchaser till that date at the rate of 9% per annum from 1st July, 2014 till the expiry of the notice of possession and adjustable with the last instalment. If the Owner fails to deliver possession of the said Unit to the Purchaser within 31st December, 2014, then this agreement would come to an end and the Owner shall refund to the Purchaser the entire amount paid by the Purchaser together with interest thereon at the rate of 9% per annum from 1st July, 2014 till the date of payment.”
Ld. Advocate for the complainants have submitted that as per the terms and conditions of the agreement, the complainants are entitled to interest @ 9% p.a. from 01.07.2014 till intimation of possession i.e. 25.08.2015 namounting to Rs. 2,28,181/- but in this regard the OP company has only paid a meagre amount of Rs. 1,05,102/- and as such the complainant is entitled to Rs. 2,28,181/- Rs. 1,05,102/- (already paid), compensation and legal expenses etc.
Mr. Rajarshi Datta, Ld. Advocate for the OPs, on the other hand, has contended that on 08.11.2016 the complainants have received Rs. 1,05,102/- towards interest as component on account of compensation for delay in handing over the apartment to the complainants and the complainants have agreed that they will not raise any claim whatsoever against the OP company in future on this matter and therefore, the complainant is not entitled to any relief.
The Ld. Advocate for the OPs has further submitted that Sri Pinaki Guha Thakurta, who deposed on behalf of the complainants on the strength of Power of Attorney is not a competent person to depose as he has no knowledge about the transactions between the complainants and the OP company. To fortify his submission the Ld. Advocate for the OPs has placed reliance to a decision of Karnataka High Court reported in 2014 (1) ICC 915 (Abdul Basheer and Anr –vs- State of Karnataka and Ors).
At the outset, it would be worthwhile to record that once the complaint was dismissed for default by order No. 8 dated 09.10.2018. However, by order of the Hon’ble National Commission dated 22.01.2019 in FA/2107/2018 to FA/2016/2018 the said order of dismissal has been set aside and there is a direction to dispose of the complaint preferably within six months. Despite best efforts, the complaint could not be disposed of within six months from the date on account of cease work observed by the members of the Bar Council of West Bengal for about long two months.
It should also not be out of place to mention here that during the pendency of the proceeding the name of Happy Highrises Ltd. was deleted and the name of Godrej Properties Ltd. was substituted in view of the order passed by the National Company Law Tribunal, Mumbai Bench dated 29.03.2017 in Transfer Company Scheme Petition No. 23 of 2017.
The materials on record make it quite clear that on 09.09.2011 the complainants had entered into an agreement with Happy Highrises Limited to purchase of a residential flat measuring about 1101 sq. ft. super built up area being unit No. 204 on the 2nd floor in the Tower named ‘Kanchenjunga’ together with right to use one Multi Level Car Parking space as mentioned in part- I and part -II of Third Schedule to the agreement for sale in a complex christened ‘Godrej Prakriti’ lying and situated at Municipal holding No. 187F/1, B.T. Road, P.S.- Khardah, Kolkata- 700115, Dist- North 24 Parganas within the local limits of Ward No. 14 of Panihati Municipality at a total consideration of Rs. 27,23,874/- for the flat and Rs. 1,50,000/- for the car parking space aggregating Rs. 28,73,874/-.
As per terms of the agreement the OP company was under obligation to handover the subject flat within 30.06.2014 which may be extended till 31.12.2014 subject to payment of compensation. It remains undisputed that the sale deed was executed in favour of the complainant on 25.06.2016 and the flat in question has already handed over to the complainants.
Now, from an undertaking dated 08.11.2016 given by the complainants addressing to the developer it appears that they have received Rs. 1,05.102/- as compensation on account of delay in handing over the flat in question. The contents of the letter is reproduces below:
“I Damayanti Basak, confirm the receipt of cheque number 006258 drawn on HDFC bank Fort Branch, Mumbai, dated 18th Aug’16 amounting to Rs. 1,05,102/- (Rupees one Lakh Five Thousand One hundred Two only) towards interest component on account of compensation payment for delayed handover of apartment number 204 on 2nd floor in Kanchenjunga Tower of Godrej Prakriti, situated at 187f/1 Barrack Pore Trunk Road.
I also understand and confirm that the refund amount is as per terms of agreement. I understand that TDS @ 10% has been deducted as per the Income Tax Rules on the amount of interest paid, and it shall be booked under PAN of the 1st applicant.
I declare that this payment is towards full and final settlement. I have settled al my claims towards the compensation and there are no dues receivables, whatsoever. I further declare that there is no outstanding /interest costs/any other charges/any other dues/any other claims whatsoever on any account receivable from Happy Highrises Ltd. or Godrej Properties Ltd. or any of its subsidiaries and I will not raise any claim whatsoever against Happy Highrises Ltd. or Godrej Properties Ltd. or any of its subsidiaries in future on this matter.”
The contents of the above letter/undertaking clearly indicate that the complainants will not claim anything whatsoever in future from the developer/builder in respect of the flat in question after receipt of Rs. 1,05,102/- as compensation. However, the complaint has been lodged by the Constituted Attorney of the complainant.
In this regard, the reply given by the said Constituted Attorney in answer No. 10 and 10A appears to be relevant where the Constituted Attorney of complainant has stated that he is a resident and owner of a flat in the building named ‘Shivalik’ in the complex ‘Godrej Prakriti’ and further admitted that he became acquainted with the complainants only after getting possession of the flat in the same complex. It means that at the time of entering into agreement for sale or at the time of execution of sale deed or at the time of receipt of compensation amount by the complainants, the Constituted Attorney had no acquaintance with the complainants. In this regard, the decision referred by Ld. Advocate for OP in the case of Abdul Basheer and Anr (supra) appears to be relevant.
In a decision reported in 2011 (1) ICC (SC) 251 (Man Kaur –vs- Hartar Singh Sangha) the Hon’ble Supreme Court relying upon its own decision reported in (2005) 2 SCC 217 (Janki Vasdeo Bhozwani –vs- Indus Ind Bank Ltd.) has summarised the proposition of law as to who should give evidence in regard to matters involving personal knowledge which is set out below:
“18. We may now summarise for convenience the position as to who should give evidence in regard to matters involving personal knowledge:
(a) An attorney-holder who has signed the plaint and instituted the suit, but has no personal knowledge of the transaction can only give formal evidence about the validity of the power of attorney and the filing of the suit.
(b) If the attorney-holder has done any act or or handled any transactions, in pursuance of the power of attorney granted by the principal, he may be examined as a witness to prove those acts or transactions. If the attorney-holder alone has personal knowledge of such acts and transactions and not the principal, the attorney holder shall be examined, if those acts and transactions have to be proved.
(c) The attorney-holder cannot depose or give evidence in place of his principal for the acts done by the principal or transactions or dealings of the principal, of which principal alone has personal knowledge......................”
Therefore, it is quite clear that the Constituted Attorney, who deposed on behalf of complainants have no personal knowledge about the agreement for sale, execution of deed of conveyance or receipt of compensation by the complainants etc. Therefore, the said Constituted Attorney Sri Pinaki Guha Thakurta, who deposed on behalf of complainants is not at all a competent witness. On the contrary, the non-appearance of the complainant to depose in the case has caused fatal to the complainants case.
On evaluation the materials on record and having heard the Ld. Advocates appearing for the parties it appears to us that the complainant has no reason to lodge the instant complaint. The facts and circumstances indicate that Sri Pinaki Guha Thakurta being constituted attorney of the complainant has lodged the complaint for unjust enrichment. In other words, having declared by signing and conclusive letter that there are no claims against the Opposite Parties, it is not open for the complainants either in fact or in law to wriggle out of the said declaration to the said application to post facto raise such unfounded claims.
For the reasons aforesaid, the complaint is dismissed on contest. However, there will be no order as to costs.
