For the complainants - Mr.Abhijit Bhunia, Advocate
For the Ops 2 to 5 - Mr. Debesh Halder, Advocate
FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application Under Section 12 of the Consumer Protection Act,1986.
In a capsulated form, Complainants’ Case is that OP-1 is the absolute owner of a plot of land measuring about 05 Cottahs more or less comprised in Mouza – Kusthia, J.L. No.14, Touzi No. 1298/2533, Dag No. 302, Khatian No. 55 being KMC Premises No. 1A, Kusthia Road, PS. Tiljala, Kolkata – 700 039, who desires to develop the said plot of land by constructing a G+04 storied building and also appointed OPs 2 to 5 as Developer. OP-1 had entered in to a Development Agreement and also executed a registered General Power of Attorney with the OPs 2 to 5 for development of the said plot of land and also to sale flats as per terms & conditions mentioned in the said Development Agreement.
Further case of the Complainants’ is that Complainant No.1 including his wife Roma Jaiswal, since deceased for the purpose of their livelihood by means of self employment approached the OP-1 to purchase a shop room on the ground floor of the proposed G+ 04 storied building. OP-1 / owner agreed to sale 336 Sq. ft. super built up area on the ground floor of the proposed building at a total consideration of Rs.14,50,000/- out of his allocation. Complainants’ have stated that they have paid the entire consideration amount to the OP-1 on different dates. The OP-1 executed and registered Sale Deed of the subject shop room but failed to handover physical possession of the said shop room including possession letter and completion certificate. Having no other alternative, Complainants’ issued legal notice dated 12.12.2018 to the OPs but such notice was unattended. The acts and activities of the OPs tantamount to deficiency in service by adopting unfair trade practice. Hence, the complainants’ approached this Forum to redress their grievances.
The OPs 2 to 5 by filing a joint Written Version disputed and denied the material allegations leveled by the Complainants’. The specific case of the contesting OPs is that no privity of contract is exists between the complainants ‘and the answering OPs. There is no agreement between the Complainants’ and the answering OPs for providing any service. The market value of the subject shop room is more than 20 lacs and this Forum has no pecuniary jurisdiction to entertain the complaint. The subject matter of the dispute is in respect of a shop room which is meant for carrying commercial activities to earn profit in large. As such, the complainants’ are not the Consumers under the preview of Consumer Protection Act, 1986. Thus, the Consumer Complaint is liable to be dismissed with exemplary cost.
In spite of service of notice of the complaint the OP-1 did not turn up to contest the case. As such the case has been proceeded ex parte against the OP-1 / Land Owner.
In support of their case, Complainant No.1 Mr. Santosh Kumar Jaiswal has tendered evidence through affidavit. OPs 2 to 5 did not adduce any evidence in support of their case. Parties failed to file their brief notes of argument during final hearing.
On perusal of the pleadings, evidence and documents on record, it would reveal that OP-1 Shri Gopi Rai purchased a plot of land measuring about 05 Cottahs more or less comprised in Mouza – Kusthia, J.L. No. 14, Touzi No.1298/2533, Dag No. 302 under Khatian No. 55, being KMC Premises No. 1A, Kusthia Road, P.S. Tiljala, Kolkata - 700 039 on the strength of a registered Deed of Conveyance dated 19.03.2016 and had entered in to a Development Agreement with the OPs 2 to 5 for construction of a G+04 storied building thereon. OP-1/ land owner had also executed a registered Power of Attorney dated 18.05.2016 in favour of OPs 2.to 5 to do all acts, deeds and things in his name in respect of the G+04 storied building.
The overwhelming evidence on record further goes to show that the OP-1 sold a shop room measuring about 336 sq. ft. super built up area on the ground floor (front side) of the G + 04 storied building being KMC Premises No. 1A, Kusthia Road, P.S. Tiljala, Kolkata - 700 039 from his allocation to the Complainant No. 1 and his wife Late Roma Jaiswal, by a registered Sale Deed dated 22.11.2017 at a total consideration of Rs. 14,50,000/-. In this regard para –VI of the Sale Deed appears to be relevant which runs as follows :-
“VI. That simultaneously with the execution of this Deed of Conveyance, the Seller (hereinafter the OP-1) delivered peaceful vacant possession of the said property, described in the schedule below, unto the purchasers (hereinafter the Complainants) for the absolute use and as benefits of the purchasers as full and as absolute owner thereof and all rights, title, interest over the said property hereby vests unto the purchasers by virtue of this Deed of Conveyance absolutely and forever”
Therefore, it is quite evident that as per averments of the registered Sale Deed dated 22.11.201, the OP-1/ land owner of the building has already handed over possession of the subject shop room to the Complainants’. Thus, the allegation of the Complainants for not handing over of physical possession of the subject shop room does not arise. Completion certificate of the G+04 storied building and possession letter of the shop room are not given to the complainants. Complainants being the ‘consumers’ hired the services of the OP-1 and the OP-1 has failed to keep his promises in handing over completion certificate of the building and possession letter of the shop room in favour of the Complainants and thereby deficient in rendering services within the meaning of Section 2(1) (g) read with Section 2 (1) (0) of the CP Act, 1986. Complainants have suffered mental agony and harassment on account of non delivery of completion certificate of the building and possession letter of the shop room. In that premises, Complainants are entitled to get some reliefs against the OP-1 / landowner.
It is pointed out by the Ld. Advocate for the OPs 2 to 5 that the responsibility to prove the incomplete construction of shop room rests with the Complainants. Moreover, Civil Engineer or Advocate Commissioner’s report is must for proving incomplete construction of subject shop room. In the present case, no report has been submitted by the Complainants and therefore, they have not been able to fulfill the requirement of proving incomplete construction of the subject shop room. Thus, we can accept the argument of the Ld. Advocate for the OPs 2 to 5.
Ld. Advocate for the OPs 2 to 5 has further pointed out that the registered Deed of Conveyance dated 22.11.2017 is not an out an out Sale Deed and it is a mortgage deed. In support of his contention, Ld. Advocate for the OPs referred photocopy of deed annexed with the Written Version. On perusal of the said document, we find that deed was executed between the Complainant No.1, his wife Roma Jaiswal, since deceased in one part and the OP-1 in other part. Record speaks that neither the OP-1 appear before the Forum nor file Written Version in spite of opportunities having been granted. If a party does not file its defense, the Forum is likely to take its view based on the complaint and other evidence available on record. The OPs 2 to 5 are not the signatories of the registered deed dated 22.11.2017 Therefore, they cannot raise any objection with regard to Deed of Conveyance dated 22.11.2017.
On evaluation of materials on record, it is quite evident that there is no privity of contract exists between the Complainants and the answering OPs. There is no agreement between the complainants and answering OPs for providing any service. Thus, no deficiency in service can be fasten / established upon the answering OPs, particularly, when there was no agreement for providing any kind of service. Therefore, the Complainants are not entitled to get any relief against the OPs 2 to 5 / Developer.
In view of the above, the complaint is disposed of with the following directions.:-
- The OP-1 is directed to handover completion certificate of the building and possession letter of the subject shop room to the Complainants ;
- The OP-1 is directed to pay compensation of Rs.50,000/- (Rupees fifty thousand) only to the Complainants for mental agony and harassment;
- The OP-1 is directed to pay Rs.5,000/- (Rupees five thousand ) only to the Complainants as cost of litigation;
- The above direction should be complied within 90 days in terms of the above order from today.
Copies of the final order be supplied to the parties as per rules.
