Dt. of filing -11/08/2017
Dt. of Judgement – 17/12/2018
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by Smt. Malina Dhar under Section 12 of the Consumer Protection Act, 1986 against Manik Sen, the developer alleging deficiency in service and unfair trade practice on his part.
The case of the Complainant in short is that Complainant being the co-owner along with other co-owners entered into a development agreement with the OP for raising a multistoried building in the land measuring more or less 1 Cottah 13 Chittaks 23 sq ft comprising EP No.583/A, SP No.19044/1, CS Plot No.2365(P) , 2351(P) and 2373(P) in Mouza- Arakpur, J.L.No.39 within Jadavpur Police Station and situated at 4/5/1, Bijoygarh Colony. Complainant and the other co-owners being the owners were allotted schedule B property in the agreement but since all the co-owners could not get individual flat, it was agreed that the present Complainant would be paid an amount of Rs.2,75,000/- in place of the flat. The OP developer initially paid only Rs.50,000/- by way of cheque out of Rs.2,75,000/- but thereafter no amount was paid by the OP. So the OP is liable to pay Rs.2,25,000/-as agreed between the parties. The other co-owners though have been handed over the flats as per the agreement dated 11th February, 2016, but the Complainant has not been paid the amount due to be paid to her. The OP has also constructed two rooms flat in the top floor and has sold it to the intending purchaser in violation of the agreement. Value of the said flat would be more than 16 – 17 lakhs and thus Complainant is entitled to an amount of Rs.1,50,000/- as one sixth share towards value of the said two room flat in the top floor sold by the OP. As inspite of the repeated request OP did not make the payment, present complaint case has been filed by the Complainant praying for directing the OP to pay an amount of Rs.2,25,000/- towards the balance promised amount, to pay Rs.1,50,000/- towards her share in the additional construction of flat in the top floor, to pay Rs.2,00,000/- as compensation for harassment and mental agony and Rs.50,000/- as litigation cost.
OP has contested the case denying the allegation made against him in the petition of complaint contending inter alia that the Complainant relinquished her proportionate share in the property, in lieu of amount of Rs.2,75,000/-. Complainant cannot be termed as consumer under the Consumer Protection Act. OP has denied that the Complainant has not received the entire sum of Rs.2,75,000/- as agreed by and between the parties. He has also denied that the Complainant is entitled to further amount of Rs.1,50,000/- and thus has prayed for dismissal of the complaint petition.
Along with the petition of Complaint, Complainant has filed the development agreement executed between the parties and general power of attorney executed in favour of the OP. During the course of evidence both the parties adduced evidence by filing affidavit-in-chief, questionnaire and reply thereto.
In course of argument Ld. Advocate appearing on behalf of Complainant has argued that the Complainant being co-owner and a party to the development agreement had hired the service of the OP and thus is a consumer under the provision of Consumer Protection Act. In support of his argument, Ld. Advocate has cited case laws reported in (2015) to ACC 669 (Bunga Daniel Babu) Vs M/s Sri Vasudeva Constructions and others and another decision of Faqir Chand Gulati Vs Uppal Agencies Pvt Ltd & another . On the other hand Ld. Advocate for the OP has argued that Complainant cannot be a consumer in the given situation of this case as she has accepted Rs.2,75,000/- and no such construction service has been hired by the Complainant. Thus in the backdrop of the argument advance by the respective parties following point require to be determined:
- Whether the Complainant is a consumer under the Consumer Protection Act?
- Whether there has been any deficiency in service or unfair trade practice on the part of the OP?
- Whether the Complainant is entitled to the relief as sought for?
Decision with reasons
Point No.1
On perusal of the development agreement filed by the Complainant, it is apparent that the present Complainant is one of the Co-owner of the property which was agreed to be developed and constructed by the OP by raising multi storied building. It is further evident that the B schedule property was owner’s allocation and the C schedule was the developer’s allocation. It further appears that the present Complainant being one of the co-owner was adjusted with sum of Rs.2,75,000/- in lieu of flat. Whereas other 5 co-owners were given five number of flats individually. So agreement indicates due to lack of sufficient flat falling under owner’s allocation adjustment was made by paying Rs.2,75,000/- to one of the owner. So there cannot be any denial that all the owners including this Complainant has hired housing construction service of the OP being developer and as all the co-owners could not be provided with the flat, one of the owner has been adjusted with the payment of money equivalent to the value of the flat. Both the parties agreed to such an adjustment. So in such a situation only because present Complainant had adjusted by accepting the money as agreed by all the parties to the agreement, she cannot be left out from taking the recourse provided under the Consumer Protection Act. She being the party to the agreement hiring house construction service is a consumer and thus argument by the OP that the Complainant cannot be termed as consumer, cannot be accepted. This point is thus answered accordingly.
Point Nos.2 & 3
Both these points being co-related are taken up together for discussion in order to avoid repetition. On perusal of the written version filed by the OP it appears that the execution of agreement by and between the parties and the present Complainant was agreed to be paid Rs.2,75,000/- in place of a flat, has not been disputed. According to the OP, he has paid the entire amount whereas this specific claim of the Complainant is that out of Rs.2,75,000/-, sum of Rs.50,000/- was only paid during the time of execution of the agreement. Thereafter no further amount has been paid by the OP. It may be pertinent to point out that in Schedule B of the agreement which is owner’s allocated portion, there appears certain discrepancies. Initially it is stated that owners may be jointly entitled to four number of complete residential flat but later while describing individual allocation the 5 flats have been allocated to the 5 co-owners and against the present Complainant, it is stated Rs.2,75,000/- to be paid. It further appears that owners were entitled to some amount along with the flat. But Rs.6,00,000/- initially written has been strike out and Rs.5,00,000/- has been mentioned. So there are inconsistency and discrepancies in the Schedule B. However so far as the case of the present Complainant is concerned about claim of Rs.2,75,000/-, same is very clear. In the development agreement it is stated that Rs.2,50,000/- in total has been paid and the owners have also signed therein. So out of total amount of Rs.5,00,000/- / Rs.6,00,000/-, sum of Rs.2,50,000/- in total has been paid by the OP. It may be mentioned here that as per agreement out of 6 co-owners, apart from Complainant, other 3 owners were also entitled to some amount along with the flat. It is not clear which co-owner was paid how much out of Rs.2,50,000/- during the time of execution of the agreement. If Rs.2,50,000/- in total was paid by the OP then one of them has received Rs.1,00,000/-. But OP has not stated anywhere who had received Rs.1,00,000/-.
The Complainant has specifically claimed that she received only Rs.50,000/- out of Rs.2,75,000/- as agreed but according to OP he has paid the entire amount. The burden is on the OP to prove the same. But in support of his contention about full payment, no document has been filed by the OP. During the course of evidence by way of filing questionnaire, OP has put a specific question being question no.17 which reads “can you remember that you have signed any document at the time of receiving the remaining consideration money in cash?” In answer to the said question, Complainant has stated that she has not received any money towards remaining amount and so the question was irrelevant.
So from the said question by the OP it is very clear that the Complainant was entitled to balance amount and as no document has been filed by the OP there remains no doubt that the Complainant is entitled to the balance amount of Rs.2,25,000/- from the OP as agreed.
So far as the claim of the Complainant that she is further entitled to amount of Rs.1,50,000/- towards her one sixth share as the OP raised two rooms flat and sold to intending purchaser, it is apparent in the complaint petition as well as in the agreement itself that it was agreed that the OP could raise single room flat in the top floor. If that be so then it is for the Complainant to establish that the OP has raised two rooms flat instead of single room and has sold the same. No evidence is forthcoming before this Forum in this regard. No step was taken by the Complainant for holding inspection by way of commission in order to establish that two rooms flat has been constructed in the garb of one room and the same has been sold. Thus the Complainant is entitled to Rs.2,25,000/- and Rs.10,000/- towards the litigation cost. In the given facts and situation of this case no compensation is awarded. These points are thus awarded accordingly.
Hence,
ORDERED
CC/476/2017 is allowed on contest. OP is directed to pay Rs.2,25,000/- within two months from the date of this order and further directed to pay Rs.10,000/- towards the litigation cost within the aforesaid period of two months in default the entire amount shall carry interest @ 10% p.a till realization.
