Date of filing : 04.08.2011

Heard on 21.06.2016

Judgement on : 01.07.2016

PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

JUDGEMENT

        The instant complainant under section 17 of the Consumer Protection Act,1986 ( hereinafter referred to as ‘the Act ) is at the behest of intending purchasers against the Developer with the allegation of  deficiency in services on the part of them in respect of  a  Row House measuring about 1983.48 sq. feet together with cluster plan lying and situated at  at Kolkata West International City ( KWIC ), Howrah – Amta Road, and  Bombay Road Crossing ( NH – 6 ), Bankra, Howrah – 711403.

        In a nutshell,  Complainant’s case is that  he is a Marine Engineer and after completion of his service in the year 2007 intended to purchase one flat at his own cost for his use and enjoyment and accordingly he has made an application to the Opposite Party of a Unit/Row House   at KWIC 0n 06.07.2006. After necessary formalities, the Opposite Party provisionally allotted one Row House, category 8 x 15, Plot No. D/07/06 having super built up area of 1983.48 sq. feet together with cluster plan at a consideration price of Rs. 40,93,000/- by their allotment letter dated 20.09.2006. Complainant approached the UTI Bank Ltd. (now known as Axis Bank Ltd.) for getting credit facility for purchasing the said Row House.  The Bank granted a credit facility of Rs. 31,10,000/-. Thereafter, Complainant made a request to the Opposite Part re-schedule  the terms and conditions for making payment of instalments by down payment mode and considering the said request OP prepare new payment schedule. Immediately, the said house building loan of Rs. 31,10,000/- directly credited by the Bank in favour of the Opposite Party on behalf of the Complainant as balance consideration money for purchasing the said Row House. The Complainant states that he has paid a sum of Rs. 39,29,280/- i.e. total consideration price for purchasing the Row House. In the agreement, it was stipulated that the Opposite Party will complete the said unit in all respects within 31.12.2008 only for cluster-D and there will be a grace period of 6 months i.e. 30.06.2009 and after expiry of the said period, KWIC will be liable to pay prevailing Saving Bank Interest of State Bank of India.  The Complainant  also states that as per terms and conditions it was the duty of the Opposite Party to handover the possession of the said Row House inhabitable condition within 31.12.2008 with a grace period for six months but till the date the Opposite Party failed and neglected to deliver the same. On 02.05.2011 Complainant sent one legal notice through his Advocate but it remain unattended. Hence,  the instant complaint with prayer for certain reliefs, viz. – (a) to direct the Opposite Party to deliver possession of the Row House ; (b) to direct the Opposite Party to refund Rs. 39,29,280/- along with interest @ 12% p.a. ; (c) compensation of Rs. 20,00,000/- for harassment and mental agony ; (d) Rs. 50,000/- as litigation costs, etc.

        The Opposite Party by filing Written Version disputed and denied the material allegations levelled by the Complainant contending inter alia that Complainant cannot be termed as ‘consumer’ within the meaning of Section 2(1)(d) of the Act and this Commission has no jurisdiction to entertain the same. The specific contention of the Opposite Party is that on 02.07.2007 the buyer’s agreement known as Standard Terms and Conditions  cum Allotment Agreement was duly entered into by the Complainant on the one hand and the Opposite Party on the other hand  in respect of the property in question. The Opposite Party was and still is ready and willing to perform its obligations under the allotment letter da ted 20.09.2006 read with buyer’s agreement dated 02.07.2007. The Opposite Party further states that the parties by virtue of mutual agreement either by conduct or otherwise have extended the scheduled time for completion of the project and therefore, time cannot be construed as the essence of the contract. The Opposite Party has stated that out of diverse clusters they have already completed cluster A and B and has obtained completion certificate for 370 units in cluster A and B. The Opposite Party submits that they are still acting with due diligence to complete the said project and to hand over the same to the respective purchaser including the Complainant and as such the complaint should be dismissed with cost.

        On the basis of the contentions of the parties, the following points are framed for adjudication:-

        1) Is the complaint maintainable?

        2) Is there any deficiency in services on the part of the Opposite Parties  to fulfil the terms of the agreement ?

        3) Is the Complainant entitled to get the reliefs, as prayed for ?

        In order to substantiate his case, Complainant has tendered evidence on affidavit to which questionnaire has been filed on behalf of Opposite Party against which reply has been filed on behalf of  the Complainants.

        On the other hand, one Shri Nikhil Chettada being authorised signatory of KWIC has filed evidence on affidavit against which questionnaire was set forth by the Complainant to which reply was given by the Opposite Party.

        Besides oral statements, parties have relied upon some documentary evidence.

        On the basis of the materials indicated above, we shall proceed to discuss how far the Complainant has been able to substantiate their case.

DECISION

Point Nos. 1:

        The maintainability of the case has been challenged by the Opposite Party. In course of final hearing of the case Mr. S. S. Ghosh, Ld. Counsel appearing for the Opposite Party has drawn our attention to  Clause B and C of the Buyer’s Agreement dated 02.07.2007 executed by and between the parties and submitted that the Kolkata Metropolitan Development Authority ( KMDA ) has executed a lease of  82.147 acres of land for a period of 999 years in favour of the Opposite Party by a Lease Deed dated 21.12.2014 and the Opposite Party is entitled to grant sub-lease of any portion of the said land and Units to be constructed thereon for the unexpired period of 999 years. Therefore, since the dispute pertains to lease between the parties the Complainant does not fall within the category of ‘consumer’ as defined in Section 2 (1)(d) of the Act.

        At the outset, it would be pertinent to mention that on 06.07.2006 the Complainant has made an application to the Opposite Party for allotment of Unit/Row House at KWIC, Howrah. On the basis of such application by a provisional allotment letter dated 20.09.2006 the Opposite Party provisionally allotted the Row House, category 8 x 15, Plot No. D/07/06 which includes land 176.25 sq. meter with built up area 1983.48 sq. feet at a consideration of Rs. 40,93,000/-. In the said letter of allotment nowhere it has been mentioned that the property was acquired by the Opposite Party by way of lease. Subsequently, a buyer’s agreement was executed by and between the parties on 02.07.2007 and it transpires that the letter of provisional allotment dated 20.09.2006 is a part and parcel of buyer’s agreement dated 02.07.2007.

        The plea of ‘lease’ has not been taken by the Opposite Party in their written version. The provisional allotment letter dated 20.09.2006 or the Buyer’s Agreement dated 02.07.2007 does not show that any amount has been assessed for such alleged sub-lease.  It is not in dispute that Complainant has already paid Rs. 39,29,280/- in favour of the Opposite Party prior to Buyer’s Agreement. After collecting almost the entire consideration amount, at this belated stage, the plea of lease has been taken. In all fairness, the Opposite Party should have mentioned in the provisional allotment letter that it was a leasehold property. In this regard, it would pertinent to record that the KMDA is a  part and parcel of Government of West Bengal and when the lease was granted by the KMDA in favour of KWIC for 999 years and further when the provisional allotment letter does not show any stipulation that it is a leasehold property and further when the said allotment letter does not show any amount to be paid by the sub-lessee and when the entire consideration amount has already been received by the Opposite Party prior to execution of Buyer’s Agreement, the complaint cannot be thrown out on the ground that a Consumer Fora has no jurisdiction to entertain the same.

        Mr. Ghosh, Ld. Advocate for the Opposite Party /Developer has placed before us an order dated 04.03.2016 passed by  this Commission in CC 35/2011 ( Dhiraj Kakati & Ors. –vs. – KWIC Pvt. Ltd. ). In the said case, order was passed  relying upon the decisions reported in  (1) I (2011) CPJ 318 (NC)  (Yogesh Yadav vs. – Ansal Housing & Construction Ltd. & Anr. ) ; (2) 2012 CPJ 491 ( NC) ( Sunil J Verma – vs. – City & Industrial Development Corporation Ltd. & (3) 2011 CPJ 492 (SC) ( Bhubaneswar Development Authority – vs. – Susanta Kumar Mishra ). We have gone through the referred decisions. In the case of Yogesh Yadav ( Supra ) the Complainant had entered into a lease agreement with the Opposite Party for commercial purpose and also Complainant initiated a Civil Suit and also a Police complaint of theft. In Sunil J Verma’s case ( Supra ) it was held that the entire complaint was based on matters arising from agreement of lease and the Complaint was not a consumer. In Bhubaneswar Development Authority’s case (Supra) it has been held that in case of lease cum sale agreement there was no deficiency in services.

           But in our case the Complainant had applied for a Row House to cater his personal need. Moreover, in the provisional allotment letter it has not been mentioned that it is a leasehold property and after collecting the entire consideration amount the Opposite Party has disclosed the factum of lease and that too has not been averred in their written version. Therefore, the referred decisions are distinguishable with the peculiar facts and circumstances of the present case.  We must not be obsessed with the objective behind the enactment of the Act which is to render justice of the consumers, who are aggrieved on account of deficiency in service, hired availed by them. The avowed object behind the enactment of the Act is to protect a consumer from the oppression of the developer.

        From another angle, the matter should be looked into. If a developer is allowed to keep a lease deed on his cap and suppressing the same promised a person to allot a particular property and subsequently after receiving the bulk consideration amount disclosed that the property is a leasehold one, certainly taking advantages of the same there will be developer’s paradise and the object and purpose behind the enactment of the Act would totally be frustrated.

        Considering all aspects, this point is decided in the affirmative and in favour of the Complainant.

Point No.2

        From the evidence of the parties it is gathered that there was a stipulation in the provisional letter of allotment dated 20.09.2006 that the total cost mentioned is firm and non-escalable  and includes cost of land, development, infrastructure, construction of unit, common portion and installation. However, Ld. Advocate for the Opposite Party referring to e-mail dated 13.09.2009 sent by the Complainant to them has mentioned that  the Complainant intend to purchase the Row House as an investment. On the other hand, Ld. Advocate for the Complainant drawing our attention to paragraph – 19 of the petition of complaint has submitted that the Complainant has been living in a rented house and as such question of investment by him does not arise. We find that Complainant is a Marine Engineer and after retirement from his service decided to purchase the flat in question as the accommodation available in his parent’s house is much less than his actual requirement. Therefore, much importance cannot be attached with that e-mail to arrive at a decision that the Complainant by purchasing the Row House intended to invest the money, particularly when it is quite apparent that he had to repay the amount of loan by way of instalments of Rs. 26,000/- and odd per month.

        From the contents of the written version of Opposite Party it has come to surface that they could not complete the construction of the Complainant’s Row House within 30.06.2009 even after grace period of 6 months. The written version has been filed by the OP on 14.05.2012 wherein it has been categorically stated that they could complete cluster A and Cluster B and there is no whisper when the Row House of the Complainant in cluster D would be completed. The Opposite Party took a defence that the factors for causing such delay were and are still beyond the control of them.

        In that perspective, there cannot be any hesitation to hold that there is deficiency in services on the part of the Opposite Party as service provider to provide the Row House to the Complainant inspite of receipt of consideration amount.

        Accordingly, this point is also disposed of in favour of the Complain ant.

Point No. 3

        On evaluation of materials on record and in view of our foregoing discussion we have no hesitation to hold that the Complainant is entitled to relief. The Opposite Party issued provisional allotment letter on 20.09.2006 and collected Rs.39,29,280/- on diverse dates including Rs. 31,10,000/- credited in favour of the Opposite Party by a Bank on behalf  of the Complainant. It certainly indicates that Complainant had no knowledge about the so-called Lease Agreement between  KMDA and KWIC ( O.P. ) .Had it been disclosed by the Opposite Party about the existence of the so-called lease, the Complainant would have an opportunity to exercise his option to purchase the property or not. Moreover, the Opposite Party could not fulfil his part of obligation to complete the construction within the time frame and it is not certain when the Opposite Party would be able to handover Row House in question in favour of the Complainant. In such a situation, Mr. Barun Prasad, Ld. Advocate for the Complainant under instruction of his client prays for refund of money with interest thereon, compensation and litigation cost which appears to us just and appropriate in the facts and circumstances of the case. In our view, a direction upon the Opposite Party to refund Rs. 39,29,280/- alongwith interest thereon @ 12@% p.a. from the date of payment till its  realisation  would meet the justice. The Complainant has been harassed like anything for long  10 years  and his harassment and mental agony can easily be ascertained and as such we think a compensation of Rs. 5,00,000/- and a litigation cost of Rs.20,000/- would sub-serve the object of justice.

        Accordingly, the point no. 3 is, thus, disposed of.

        In the result, case succeeds in part. It is, therefore,

ORDERED

        that the case is allowed on contest with costs of Rs.20,000/- to be paid by the Opposite Party in favour of the Complainant.

        The Opposite Party is directed to refund Rs.39,29,280/- together with interest thereon @12% p.a. from the date of receipt of money till its full payment. The Opposite Party is further directed to make payment a sum of Rs. 5,00,000/- as compensation for harassment and mental agony of the Complainant.

        All the payments must be made within 30 days from date, otherwise the Complainant shall have liberty to get the Award executed through this Commission.