Consumer Complaint No. 60 of 2016

Date of filing: 06.4.2016                                                               Date of disposal: 09.9.2016

Complainant:               Smt. Chyana Saha, W/o. Sri B.K. Saha, Vill: Dasdighi, PO: Galia, Dist: Bankura, PIN – 722 154.

-V E R S U S-

Opposite Party:    1.     The Director/Branch-in-Charge, M/s. Hahnemann Housing & Development (P) Ltd., Branch Office at Sanjib Sarani, Aesby More, Durgapur- 713 201, Dist: Burdwan.

2.      The Director, M/s. Hahnemann Housing & Development (P) Ltd., Regd. Office at 3/3, Poddar Nagar, Kolkata – 700 068.

Present:      Hon’ble President: Sri Asoke Kumar Mandal.

                        Hon’ble Member: Smt. Silpi Majumder.

           Hon’ble Member:  Sri Pankaj Kumar Sinha.

Appeared for the Complainant:      Ld. Advocate, Soumendra Kumar Dutta.

Appeared for the Opposite Party:  None.

J U D G E M E N T

The complainant being allured with an advertisement which distributed by the agents of the Ops in the year 2011 through handbill in District of Bankura and other places of the state inviting application from the interested and intended purchasers for the company’s project, namely, Shantiban-III citing multiple and lucrative features, approaches the OP, developer where branch office is at Durgapur, Burdwan for purchasing a piece of two cottah of developed land bearing Plot No. P-368, Mouza- Manjura, JL No. 187, Dag No. 148, Khatian No. 138 and 121 in the district of Bankura which was agreed to be developed by the Ops and on completion of development work and payment of total value of consideration money of land including cost of development in the specified manner and it was assured by the OP that the title ship of the said developed land would be assigned in the name of the complainant through the execution of deed of conveyance after a specified time. A certificate of booking dated 08.7.2011 having its validity up to 08.8.2014 was issued by the OP Company on receipt of an amount of Rs. 40,000=00 from the complainant towards the booking money of the aforesaid piece of land in Bankura. Further the money receipt bearing Sl. No. 172676, dated 06.7.2011 was issued by the OP Company acknowledging the receipt of the booking amount from the complainant through cheque No. 156641 drawn on UBI. Subsequently, a bipartite agreement dated 13.6.2013 was executed between the complainant and the OP represented by Shri Karunamoy Sinha, Director of the OP Company mentioning all the terms and conditions in connection with the transaction of the said piece of two Cottah of developed land. Even after the execution of a bipartite agreement between both the parties and despite remittance of agreed consideration money in full by the complainant in respect of the said land, the said OP Company neither assigned nor registered the deed of conveyance (sale deed) in favour of the complainant nor refund back the consideration money of land already remitted/deposited through EMI@Rs. 4,444/- in 36 months including admissible interest in terms of the agreement so far which itself proves breach of contract and the deficiency in service on the part of the OP Company. It is further submitted by the complainant that after prolonged persuasion from the pillar to the post the OP Company ultimately agreed to refund the deposited consideration money of the developed land along with admissible interest agreed thereon and accordingly issued two post dated A/c. payee cheques in favour of the complainant drawn on Axis Bank, Durgapur Branch putting the date of encashment as 28.12.2015, one cheque of Rs. 1,99,984=00 and the other for Rs. 43,997=00 towards full and final settlement of claim making calculation of interest up to 31.8.2014 . But both the cheques when presented before the UBI, Galia Branch for encashment of the amount into the credit of the complainant’s SB Account, both the cheques were dishonoured on 04.01.2016 for insufficient fund in Ops account which was subsequently informed on 06.01.2016 by the concerned Bank to the concerned payee.  It is further submitted by the complainant that though the complainant personally visits the branch office of the company at Durgapur on 21.01.2016 to bring the fact of dishonor of both the cheques to the notice of branch in-charge of OP Company, the branch in-charge of OP Company had taken back both the original dishonoured cheques from the complainant with a vague verbal assurance that the amount will be credited in the bank account through NEFT but no amount was remitted or credited in the bank account of the complainant yet which itself proves deficiency in service on the part of the OP developer again. The complainant further submitted that an application has been sent on 05.02.2016 by speed post to both the office of the OP Company at Kolkata and Durgapur informing the reason behind the dishonor of cheques and demanding the early disbursement of refundable sum of money. It is also found from online verification of track report of delivery of postal department that the said application of the complainant was duly delivered to the respective offices on 08.02.2016. But the OP Company neither responded the said application nor took any steps to pay back the demanded money to her so far. Thus cause of action to take appropriate legal action against the OP Company arose.  Thereby the complainant was compelled to approach before this ld. Forum to get redressed. It is to be mentioned before coming to this ld. Forum the complainant approached before a VCO, namely, Meghnad Saha Road AAHANA FOUNDATION of Durgapur to represent her grievance for its redressal and for securing proper relief in the matter. There also the complainant failed to get redressal. Hence the case arose.

            Notices were duly served upon the OP-1&2. The OP-1 did not contest the case by filing written version and the OP-2 though appeared through ld. Advocate by filing vokalatnama but failed to file written version within stipulated period, that is why the case id heard ex parte against the OP-1&2.

Decision with reasons:-

            The complainant submitted that a bipartite agreement executed between the purchaser of any specific developed land and a developer/builder who claims to the owner of the said land on completion of development work and delivery of possession of said developed land to the purchaser is not a joint venture agreement. Accordingly land purchaser is defined as a consumer and the developer/builder is termed as a service provider under C.P. Act, 1986. Therefore, the complainant claims to be a consumer and can file and lodge a complaint before this ld. Forum as a consumer dispute and maintainable in principle under C.P. Act, 1986. The complainant further mentioned that the construction of houses or development works/activities carried on either by a private or statutory body is defined as a service under Section 2(1)(o) of the C.P. Act, 1986. If the service rendered or provided by the service provider i.e. developer/builder found to be defective or substandard in nature then such act on the part of the service provider i.e. developer/builder would be treated as unfair trade practice as defined under the said Act and the complainant is entitled to claim compensation arising out of deficiency in service on the part of the developer/builder who undertakes to comply in the terms of bipartite agreement jointly executed with the complainant and accordingly, in all fairness, it is inherent and implied on the part of the service provider/contractor to perform and comply with his contractual obligations as agreed to. Therefore, the developer/builder cannot avoid contractual obligations or escape from their liability arising out of bipartite agreement executed between the complainant and the OP, so far the nature of the complaint is concerned which got direct nexus with the compliance or non-compliance of the contract and resulted in breach of contract and deficiency in service on the part of the contractor/service provider. It is further submitted by the complainant even when the possession of the property is not delivered by the developer/builder within the stipulated period, the delay so caused is denial of service, rather deficiency in rendering service of particular standards or quality may be termed as unfair trade practice as per as per Section 2(1) (r) of C.P. Act, 1986. The cheques issued by the OP Company had been dishonoured and till date those cheques remain unsettled by the OP Company despite all reasonable steps exercised by the complainant.  Thus the complainant is entitled to get refund of Rs. 1, 99,984=00 which is the sum of one cheque out of two cheques issued by the OP Company. Later on 28.12.2015 one of cheques amounting to Rs. 43,997=00 was remitted by the OP Company directly in the bank account of the complainant through NEFT, which is the sum of one cheque out of two dishonoured cheques, mentioned earlier. Hence, the complainant is entitled to get refund of Rs. 1, 99,984=00 which is the sum of one cheque out of two cheques issued by the OP Company in favour of the complainant on 28.12.2015, along with interest.

            Perused all the documents adduced by the complainant. The complainant referred the citation of different cases in which the complainant was held to be a consumer in case of developing any land/building. In Faqir Chand Gulati (supra) Vs. M/s. Uppal Agencies Pvt. Ltd. (C.A. No. 3302/2005) it has been held that the agreement between the parties is not a joint venture agreement but an agreement for construction of a residential building and delivery of an agreed percentage of the constructed area to the land owners. Infact the agreement clearly states that it is not a joint venture. Further in case of Lucknow Development Authority Vs. M.K. Gupta it has been held by the Hon’ble Supreme Court that the statutory authority or private builder or contractor came within the purview of the Act only after its amendment by the Ordinance No. 24 in 1993 or the commission could entertain a compliant for such violation even before. Before inclusion it has already been held that before inclusion or prior to inclusion of the expression housing construction in the definition of service by the Ordinance 24 of 1993. The entire purpose of widening definition is to include not only day to day buying and selling activity undertaken by a common man but even such activities which are otherwise not commercial in nature yet they partake of a character in which some benefit is conferred on the consumer. Construction of a house or a flat is for the benefit of a person for whom it is constructed. He may do it himself or hire services of a builder or contractor. The latter being for consideration is service as defined in the Act. Similarly, when a statutory authority develops land or allots a site or constructs a house for the benefit of common man it is as much service as by a builder or contractor. The one is contractual service and other statutory service. If the service is defective or it is not what was represented them it would be unfair trade practice as defined in the Act. Any defect in construction activity would be denial of comfort and service to a consumer.

            Perusing all the documents and the citations referred by the complainant we are in view that the developer is liable for deficiency in service and unfair trade practice. Therefore, the complainant is entitled to get back the money deposited to the account of the OP through installments which amounts to Rs. 1,99,984=00 along with interest up to 31.8.2014. The complainant is also entitled to get compensation towards deficiency in service, unfair trade practice, inordinate delay, harassment and mental agony. As the complainant has been compelled to file this case before this ld. Forum he is also entitled to get litigation cost. Hence, the complaint succeeds.

            Fees paid is correct.

            Hence, it is

O r d e r e d

that the case is allowed ex parte with cost against the Ops and the Ops are directed to refund either jointly or severally Rs. 1,99,984=00 to the complainant along with an interest @9% from 01.9.2014 within 45 days from the date of passing of this award, in default, the Ops are liable to pay penal interest @10% on the amount (Rs. 1,99,984 + accrued interest) for the default period and the Ops are further directed to pay either jointly or severally Rs. 20,000=00 as compensation and Rs. 2,000=00 as litigation cost to the complainant within 45 days from the date of passing of this award, in default, the complainant will be at liberty to put the entire award in execution as per provisions of law.

            Let plain copies of this order be supplied to the parties free of cost as per provisions of law.

                   (Asoke Kumar Mandal)        

             Dictated and corrected by me.                                                  President      

                                                                                                          DCDRF, Burdwan

                    (Pankaj Kumar Sinha)

                            Member

                     DCDRF, Burdwan

                                                      (Silpi Majumder)                        (Pankaj Kumar Sinha)

                                                             Member                                             Member

                                                     DCDRF, Burdwan                            DCDRF, Burdwan