Order No. 12.
AUTHOR. RABIDEB MUKHOPADHYAY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986. It is stated that the complainants are legal heirs and successors of Jitini Parsini and others and have
been residing at premises no. 1C, Tiljala, Shibtala Lane, Kolkata-700039 and Jitini Parsini and others were the co-owners of the stated premises and after their death, complainants became joint co-owners.
It is also said that the OPs are the promoters for developing the said premises and made agreement (Annex-1) with complainants to promote a building thereon in ward no. 65 according to sanctioned plan.
The complainants stated that as per the agreement, OPs undertook to pay to the complainants Rs 200000/- in total in phases, out of which Rs 50000/- has been paid and Rs 150000/- is still due yet. It is also stated by the complainants that the OPs undertook to provide a complete flat of 800 square feet free of cost but the OPs provided them a flat of 150 square feet flat and 650 square feet flat is still to be provided to the complainants by the OPs.
It is further stated at para-4 (2nd part) of complaint that as per the agreement, OPs undertook to provide 1200 square feet of area to the existing tenants free of cost after construction but the OPs failed to provide the same to the existing tenants. The complainants stated that OPs are taking time one after another on false pretexts.
The OPs did not provide the flat area of 650 sq. ft. and outstanding amount of promised money of Rs 150000/- in spite of several demands. Lastly, complainants were compelled to issue legal notice through their Advocate Mr. S. M. Masud to OPs on 17/6/17 but the OPs neither acted their part of remaining obligations as per agreement nor did they reply to complainants’ legal notice (Annex-2, Postal receipts-Annex-3 and Postal Track Report –Annex-4).
The complainants prayed for direction upon OPs to pay balance amount of Rs 150000/-, balance area of flat of 650 square feet, compensation of Rs 1000000/- and litigation cost of Rs 20000/-.
WRITTEN VERSION.
No WV has been filed by OPs and the case proceeded exparte against OPs.
Points for Decision
- Whether the complainants are consumers under the OPs;
- Whether the OPs are deficient;
3) Whether the complainants deserve relief.
Decision with Reasons
1) We have perused the copy of ‘Agreement for Construction of Building’ dated 16 July, 2012 signed by the complainants as First Part and the OPs/ Builders/ Contractors as Second Part. We also perused the copy of legal notice sent by the Advocate, S. M. Masud.
2) All efforts have been taken to ensure OPs’ appearance and taking part in the proceedings and to avoid exparte proceedings but in vain. The OPs frustrated such venture even after paper notification. Such conduct on behalf of the OPs is not at all unexpected and it signaled from their non-reply to letter of complainants’ Ld. Advocate.
3) By such intentional absence from taking part in the proceedings from assisting the Forum, the OPs lost their opportunity to substantiate their case against the allegations leveled by the complainants. The OPs also failed to controvert the complaint and the Evidence of complainants remained unchallenged. This means that the OPs indirectly admitted the contents of allegations of the complainants. Still, we have tried to find some merit of the complaint.
4) Two errors, we feel it necessary to highlight, have occurred, as below.
i) In the Cause List, the complainants stated the place as ‘Tiljila’ but on perusal of supported documents, including the Agreement, the place appeared as ‘Tiljala’. So, we corrected accordingly.
ii) At page 3 of Ld. Advocate’s (of complainants) letter dated 16/6/17, written to OPs, balance amount to be paid to his clients (complainants) is written as Rs 50000/- which should have been, from perusal of other supported documents, Rs 150000/-. Ld. Advocate while representing for his clients and to protect their interest should have been more careful in this regard.
5) From the very perusal of ‘Agreement for Construction of Building’ dated 16 July, 2012, it appears that the same is not transparent. OPs tactically escaped providing any particular date of hand over of possession of complainants’ 800 sq. ft. flat. Further, at page 2 (2nd line of last paragraph) total floors are stated to be ‘G+4’ whereas at page 3 (clause 1 of Terms & Conditions), the same has been written as ‘G+3’.
6) At page 3, clause 2 of Terms & Conditions mentions proportions of flat areas of complainants and clause 3 of Terms & Conditions mentions provision of flat areas of tenants and Mandir. It is mentioned at page 5, clause 13 of Terms & Conditions how Rs 200000/- would be phase-wise paid to complainants after one by one ‘dhalai’. But in terms of clause 14 of Terms & Conditions, OPs have obligations to hand over complete room of 800 sq. ft. to complainants after 1st ‘dhalai’.
7) More than 5 years and a half elapsed but OPs did not fulfill their promise except paying Rs 50000/- and handing over of only 150 sq. ft. of flat room. The
complainants are seemingly poor and some of them are illiterate. Complainants’ Advocate expressed concern about the ill motive of OPs in this soaring market and we think their concerns are not baseless.
8) To prove whether the complainants/owners are consumers under the OPs, we take resort to Hon’ble Supreme Court’s Judgement, in Civil Application No. 3302 of 2005, in Faqir Chand Gulati-Vs-Uppal Agencies Pvt. Ltd. & Anr, disposed on 10 July, 2008.
At clause 2(xiii) of the judgement, it is observed by the Hon’ble Supreme Court as, ‘In case of default in the event of any neglect, failure, default on the part of either the owner or the builder, the affected party shall have the right to Specific Performance of the said Agreement at the cost and risk of the defaulting party who shall be liable to pay damages….’
At clause 16(a) of the said judgement, it is stated, ‘where the owner/builder of a land who has entrusted the construction of a house to a contractor, has a complaint of deficiency of service with reference to the construction.’
At clause 19 of the Judgement, Hon’ble Supreme Court clarified in detail of how a builder becomes service provider against construction and owner becomes a consumer.
Therefore, the OPs are service provider and the owners/complainants are consumers under them.
9) It is then clear that the complainants are consumers. It is also clear that the OPs are deficient in rendering promised service as per the Agreement. So, the complainants deserve relief. In the prayer, complainants prayed for direction on the OPs for handover of possession of the complete flat of remaining of 650 square feet and balance amount of Rs 150000/- with compensation and litigation cost. We need not bother about the claim of existing tenants being not complainants in the present case.
In the circumstances of above discussion, we are constrained to pass
ORDER
That the complaint be and the same is allowed exparte against the Opposite Parties in terms of section 13(2)(b)(ii) of the Consumer Protection Act, 1986;
That the Opposite Parties are jointly and severally directed to hand over possession of the remaining 650 square feet flat, complete in all respects as per agreement dated 16th July, 2012 and pay balance amount of Rs 150000/-, to the complainants within 30 days from the date of this order;
That the Opposite Parties are further directed to jointly and severally pay total Rs 300000/- to complainants 1 to 3, Rs 150000/- to each of complainants 4 and 5, as compensation for long waiting, loss of monetary value, physical harassment and mental agony of poor, ignorant complainants and Rs 10000/- as litigation cost, to the complainants, within 30 days from the date of this order;
That on failure of O.P.s to comply with the above orders within stipulated time, complainants shall have the liberty to put the orders into execution in terms of section 27 of the Act ibid
Let copies of this order be handed over to the parties when applied for.
