Date of filing: 11/12/2020                                                    

Date of Judgment: 24/07/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed under section 35 of the Consumer Protection Act, 2019 by the complainants’ namely (1) Mrs. Sumitra Daw (2) Smt. Sanjukta Chandra Daw (3) Mr. Subhadip Daw and (4) Mr. Sanjay Daw alleging deficiency in service and unfair trade practice on the part of opposite parties (referred as OPs hereinafter) namely (1) M/s. Bose Construction (2) Krishna Gopal Bose and (3) Mritunjay Daw.

Complainants’ case in short is that they being joint owners entered into an agreement dated 15/02/2012 with OP 1 represented by its sole proprietor OP 2 to develop the property and to construct a multi storied house on the premises no. 33A/1A, 33A/1B, and 33C, Charu Chandra Avenue, under Charu Chandra Market Police Station, Kolkata. As per the terms and conditions of the agreement the construction of the building was to be completed within twenty-four months from the date of obtaining sanctioned building plan or from the date of receipt of peaceful vacant possession of the said amalgamated premises from the owners by the developer. The OP developer was under obligation to submit proposed building plan before the Kolkata Municipal Corporation for sanctioning the same within nine months from the date of execution of the said development agreement. The OP developer was also under obligation to pay Rs. 3,00,000/- as non-refundable sum to the owners after the sanction of the building plan. The owners allocation has been specified in the said development agreement but as per the terms of the agreement, same has not been handed over to the complainants’ by the developer. Since the execution of the said development agreement and also general power of attorney executed by the complainants’ in favour of the opposite party developer, the OP developer has failed and neglected to perform contractual obligation. The OP developer was under obligation as per the terms of the agreement to necessitate property procedure before the Kolkata Municipal Corporation and other authorities. Since the construction was not started and delayed in developing and construction of the property, the present complaint has been filed by the complainants’ claiming compensation of Rs. 20,00,000/- and litigation cost of Rs. 50,000/- from the opposite party developer.

On perusal of the record it appears that on service of notice neither the developer i.e. OP 1 & 2 nor proforma OP 3 turned up. Thus the case has been heard exparte.

During the course of trial complainants’ have filed examination in chief on affidavit along with documents relied upon by them. Ultimately during argument on behalf of the complainants’ brief notes of argument has been filed citing several decisions of Hon’ble Supreme Court and Hon’ble NCDRC.

So the only point requires determination is whether the complainants are entitled to the relief as prayed for?

DECISION WITH REASONS

Complainants’ have filed the development agreement dated 15/02/2012 entered into between the parties wherefrom it appears that the present petitioners along with proforma OP 3 being the owners of three separate premises, entered into an agreement with the developer i.e. OP 1 being represented by OP 2 to construct a multi storied building after amalgamating those three premises. It appears from the said agreement that complainants’ 1 to 3 namely (1) Mr. Sumitra Daw (2) Smt. Sanjukta Chandra Daw and (3) Mr. Subhadip Daw were the owners of premises no. 33A/1B, complainant No. 4 namely Sanjoy Daw along with proforma OP 3 Mritunjay Daw are the owner of the premises no. 33A/1A. These all the five owners i.e. complainants’ 1 to 4 along with proforma OP No. 3 are the joint owners of premises no. 33C. As per the terms and conditions of the development agreement the owners therein had agreed to amalgamate three premises and after such amalgamation, three premises were to be developed by constructing residential building thereon through the developer in accordance with the building plan to be sanctioned by the Kolkata Municipal Corporation.

It is true as claimed by the complainants’ that as per the terms of the agreement, building was to be completed within 24 months from the date of obtaining of sanctioned plan or from the date of receipt of peaceful vacant possession of the said three premises by the developer from the owners, whichever was later. The pre-condition to proceed any further with the development or construction of the building was that the three separate premises owned by complainants’ 1 to 3, complainant no. 4  and proforma OP no. 3 i.e. premises no. 33A/1B, 33A/1A and premises no. 33/C owned by all of them were to be amalgamated. The specific terms in the agreement is as under:-

“The owners simultaneously upon execution of this agreement shall take all necessary steps and apply before the Kolkata Municipal Corporation for the purpose of mutation and amalgamation of the said three premises at the cost and expenses of the developer and shall also apply for and mutate their joint names in the record of Kolkata Municipal Corporation in respect of the amalgamation premises. All outstanding taxes if any in respect of the said three premises shall be liabilities of the owners”

So as per the abovementioned terms in the agreement, the owners were under obligation to take step for the purpose of mutation and amalgamation of the three premises even though the cost and expenses towards the same was to be borne by the developer. In this regard the notice sent by the complainants and the reply to that notice received by them from the OP developer is necessary to be highlighted. In response to the letter of the complainants dated 29/04/2014 the OP developer sent a reply dated 19/05/2014 wherein it has been specifically stated that prior to the amalgamation of the three premises into single premises in the record of Kolkata Municipal Corporation, the necessary taxes in respect of those three premises were to be updated and in respect of taxes clearance certificate was to be obtained for amalgamation and accordingly he paid  to Kolkata Municipal Corporation, tax to the tune of Rs. 15,038/- in respect of the premises no. 33C, he paid sum of Rs. 1781/- in respect of premises no. 33A/1A and obtained the tax clearance certificate in the year 2012. Further it is specifically stated by the developer that he had handed over two individual deed of gift in respect of the premises no. 33/1A and premises no. 33A/1B as required for amalgamation of the said three premises prepaid by his advocate to the complainants, as well as the other co-owners indicating proforma OP 4. But he was not handed over those two deed of gifts after approval. It is also evident from the said reply that the developer had also paid an amount of Rs. 47,000/- to complainant no. 4 by way of A/c. Payee cheque and cash on different dates. He was told that complainant No. 4 was negotiating with proforma OP No. 3 namely Mritunjay Daw.

Said reply by the OP developer indicates that proforma OP 3 was not cooperating in the process of amalgamation or construction of the project which was causing the delay and for that complainant no. 4 was negotiating or talking with proforma OP 3. There was some problems among the co-owners is also strengthened as the present complaint has been filed by 4 of the co-owners and Mritunjay Daw another co-owner has been made proforma OP. He has not joined the complainants’ in this case claiming compensation.  

Complainants’ 1 to 3 have sent a reply on receipt of the reply of the developer dated 19/05/2014. The said reply was sent by the complainants’ 1 to 3 on 23/07/2014. On a careful scrutiny of the said reply, it is evident that the payment of Rs. 47,000/- to complainant no. 4 by OP developer has not been denied and disputed by complainants’ no. 1 to 3. Their contention was that the said payment to Sanjay Daw was no way related to the project and was of no issue to them. However they have not denied about the payment of tax by the OP of Rs. 15,038/- and Rs. 1,781/- to the Kolkata Municipal Corporation towards obtaining the tax clearance certificate in the year 2012. It is strange that the letter dated 29/04/2014 was sent by complainants’ 1 to 4 to the OP developer to which the OP developer had replied on 19/05/2014 as discussed above. But while giving reply dated 23/07/2014 in response to the reply of the OP developer dated 19/05/2014, complainant no. 4 was not a party for the reason best known to the complainants. It is already highlighted above that developer had claimed that he had paid Rs. 47,000/- to the complainant no. 4 for negotiating with the proforma OP 3. So unless the amalgamation was done and for which according to OP developer, he had sent the deed of gift in respect of premises 33A/1A & 33A/1B for approval, there could not be any amalgamation or mutation at the Kolkata Municipal Corporation and thus neither any building plan could be sanctioned nor further step for construction of the building could be taken by the developer. So the claim of the complainants’ that there has been deficiency and negligence on the part of the OP developer is devoid of any merits. On the contrary there appears non-cooperation among the owners themselves specially Sri Mritunjay Daw. Since the development agreement dated 15/02/2022 was entered into by all the five owners of three separate premises for developing and raising the construction of the building only after amalgamation of those three premises and as per the terms and conditions of the agreement the owners were under obligation to take step for such amalgamation which apparently was not done due to non-cooperation by one of the co-owner, the developer cannot be held for alleged deficiency in service.

Ld. Advocate for the complainant has cited several decisions in the brief notes of argument and some of them have been filed but on perusal of those case laws it appears all those case laws are on the point as to whether the owners who entered into joint venture agreement with the builder for construction of apartment and sale of those apartments to share profits in a particular ratio were the ‘consumer’ as the transaction involves commercial purpose.

Some other decisions are on the point relating to the quantum of compensation a consumer is entitled to if there is delay in handing over of the possession of apartment and reckoning date for the purpose of assessing the damages. But none of the case law cited and relied upon by the complainants is applicable to the given facts and situation of this case. It is already discussed above that in this case in hand, the question is not delay in handing over of the possession of the flat or whether co-owners are ‘consumer’ under the provision of the Consumer Protection Act. The question is for whose negligence and fault, the amalgamation of three premises did not happen. It may also be mentioned here mere citing of several case laws will not establish the claim made by the party. It has to be seen by the party that those case laws are relevant and applicable in given facts & situation of the case. Under regulation 18(5) of Consumer Protection (Consumer Commission Procedure) Regulation 2020 it is very categorically specified that “the order of a consumer commission disposing of a matter shall be as short and precise as practicable and unnecessary long quotations from the judgements of the higher courts or otherwise shall be avoided”.

So in view of the discussion as highlighted above, present complaint is liable to dismissed.

Hence

           ORDERED

CC/330/2020 is dismissed exparte.