Date of Filing : 05 March, 2018.
Date of Judgement : 24 June, 2024.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This complaint under Section 12 of the Consumer Protection Act 1986, the Act, has been filed by Smt. Anjali Roy, resident of 14/1, Swami Vivekananda Road, Howrah-711 101, for short the Complainant, against (1) M/s. Maa Properties Pvt. Ltd. and (2) Sri Sumit Mukherjee of 2, P. K. Roychowdhury Lane, Howrah – 711 103, & (3) Sri Samarkant Jha of 93, Kalitala Lane, Kolkata – 700 078, both are Directors of M/s. Maa Properties Pvt. Ltd., collectively called as the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OPs arising out of non-payment of balance amount as stipulated in the Supplementary Agreement executed between the complainant and the OPs in her favour and praying for relief as under:-
In the light of the facts and circumstances as enumerated in the complaint petition, it is respectfully prayed that this Hon'ble Forum/Commission may graciously be pleased to:-
Direct the OP to pay ₹2,92,000/- with 18% interest calculating from 01/04/2014 to realisation of the said amount;
Direct to pay ₹3,00,000/- for mental agony due to deficiency of service and unfair trade practice etc. of the Ops and for her financial harassment, etc.
Direct to pay ₹50,000/- as litigation cost and any other relief(s) as this Forum/Commission may deem fit and proper.
Brief facts of this case
The complainant and other 11 (eleven) persons, who are brothers and sisters of the complainant, are the owners of the premises at 3, Padma Pukur Lane, Howrah – 711 103. All the owners have executed a registered Agreement for Development on 08/03/2013 (actual date of this execution was 28/10/2013) as Owners with the OPs as Developers. On that date a Development Power of Attorney was also executed between them. Later the Complainant separately executed a notarised Supplementary Agreement with the OPs on 28/10/2013 containing 5 (five) pages. Complainant stated that she received ₹2.5 Lacs in cash from the OPs as part payment as per the supplementary agreement, wherein the settled amount for her allocation was fixed as ₹5,92,000/- (actual amount would be ₹5,42,000/-). As per the terms of the said (supplementary) agreement, the OPs had to pay (another) ₹2,92,000/- only within 12 (twelve) months from the date of execution of the agreement dated 28/10/2013 failing which, as per clause 3 of the said agreement, the complainant had given the right to cancel the power of attorney. Complainant stated that as the OPs failed to pay the rest amount despite her repeated requests over phone, she sent a legal notice to the OPs on 22/06/2017 demanding the unpaid amount. She alleged that the OPs deliberately and wilfully neglected to perform their part of contract and as such they were guilty of deficiency of service and unfair trade practice and hence the complainant filed this instant complaint and prayed as stated herein above.
Contentions of the Opposite Parties
Contentions of the OP No. 1
In their written version, filed on 29/05/2018, the OP No. 1 denied all the allegations put forward by the complainant in her complaint petition. OP No. 1 admittedly stated that that the OPs had executed a development agreement with the owners of the subject premises and the present complainant was one of those owners. They also admitted that a supplementary agreement was executed between the OPs and the present complainant. But they strongly objected that nowhere in these agreement it was written that the complainant would get 155 sq ft of the constructed property and they stated that actually her brothers would get each of 1050 sq ft flat instead of proposed 1010 sq ft flat and each of the sisters would get 87.5 sq ft instead of 155 ft area. Accordingly, as per their averments, the complainant is not entitled to get ₹5,92,000/- because of the reduced actual area to be allotted to the complainant.
In the Paragraph No. 14 the OP No. 1 stated that the complainant has filed this complainant on basis of the Supplementary Agreement which is nothing but a contract for sale for the allocated portion of the complainant, so this complaint not maintainable in this Forum/Commission.
The OP No. 1 denied all the allegations but they never mentioned whether the complainant would be entitled to receive any balance amount from the OPs. Moreover, once in the Para – 16 of their written version they stated that the complainant is entitled to get 87.5 sq ft area and in the same Para-16 they stated it as 67.5 sq ft. which is for the enhancement of each brother’s share. A statement has been written in the Para-16 about bringing of NO OBJECTION by the complainant from the other co-owners, but what is the cause of asking it is not clear from the entire written version and why she has been asked alone for such NOC.
Contentions of the OP Nos. 2 & 3
In their written version filed on 04/07/2018, OP Nos. 2 & 3 copied each and every line of the written version of the OP No. 1, so we are not going to repeat our statement.
Evidence, interrogstories and replies of both the parties
Complainant in her evidence supported by affidavit has put forward all the facts as stated in her complaint petition and denied all the averments made by the OPs in their written versions.
The OPs jointly filed their evidence supported by affidavit through the OP No. 2 and it is nothing but the replica of their written versions but in a shorter form.
In reply of the OPs questionnaire about what was the complainant’s share in the suit property, the complainant answered that she had the entitlement of getting ₹5,42,500/-. In reply to the questionnaire of the Ops the complainant simply denied that the supplementary agreement is an agreement for sale and firmly stated that she was entitled to get ₹2,92,500/- and not that ₹56,250/-.
In reply to the questionnaire of the complainant about whether the OPs have paid the amount as per the supplementary agreement, the OPs answered: ‘As there is disputes question of payment of claimed amount does not arise at all.’ [Emphasis supplied]
In the Brief Notes on Argument, complainant stated the facts as is written in her complaint with an addition of emphasising on the deficiency of service caused by and unfair trade practice taken by the OPs. She has emphasised for strict obey of the terms and conditions of the supplementary agreement by the OPs which they had not done as per her allegation. On the other hand the BNA of the OPs, which is almost in the same line with their written version, have questioned on some points which were asked in their interrogatories. Here they have put forward a new fact that recently the co-owners of the property has instituted a suit being Title Suit No. 1162 of 2022 before the Ld. Civil Judge (Jr. Divn.), 2nd Court, Howrah, against the OPs for cancellation of development agreement and power of attorney which is pending yet. According to their version, till the disposal of this Title Suit the OPs are unable to proceed further with the pending works and duties.
We have now come to the position to deliver the Final Order in this case. We have to decide:
(A) Whether the complainant is a consumer?
(B) Whether there is any deficiency in service caused by the OPs?
(C) Whether this complaint is maintainable under the C. P. Act, 1986/2019? and
(D) Whether the complainant is entitled to get any relief/reliefs as prayed for?
Let us take these questions together in our discussion to avoid repetition and for the sake of brevity.
DECISION WITH REASONS
It is an admitted fact that the complainant along with other 11 co-owners have executed an agreement for development with the OPs on 08/10/2013 in order to develop their property at 3, Padmapukur Lane, Howrah, and also executed a power of attorney on that date which were registered before the concerned authority. We are not going in details of this agreement, but noticed that there is uneven distribution of allocation between the brothers and sisters, when a brother is entitled to get 1010 sq ft or 1050 sq ft, as it may be, then a sister got merely 155 sq ft or 87.5 sq ft1! However we are not going to judge the legality of this agreement. When none of the executants of a deed did pick up any quarrel with the terms and conditions of the agreement then they are bound to follow the terms and conditions contained in the agreement. But we are keen to consider the notarised Supplementary Agreement executed between the complainant and the OPs. The date of execution has not been mentioned in this agreement but it is notarised on 28/10/2013. It contains 5 pages and in the last paragraph of Page No. 3 it is written as:
“AND WHEREAS subsequently the present owner (complainant) has changed her mind and she desire to take her allocation by way of cash money in adjustment of her allocated area as per the said Development Agreement (executed between the 12 owners and the OPs) and after a discussion in between the parties herein the parties herein have settled the matters in the following terms and conditions mentioned below:-‘ [Emphasis supplied]
There are four points written after the above-mentioned statement. In Point No. 1 it is written that the complainant would hand over her allocated portion of 155 sq ft to the developer at the rate of ₹3,500/- per sq ft (i.e. 155 X ₹3,500/- = ₹5,42,500/-). the developer would pay ₹2.5 lacs at the time of execution of this agreement and the rest amount within 12 months. In the second point it is stated that after obtaining her allocation the developer has the liberty to sale it to any third party. The other two points are about the obligation of both the parties.
Our attention has struck on this proclamation of the supplementary agreement duly signed by the complainant and the OP Nos.2 & 3 as the executants. This above cited statement simply tells us that the complaint is going to sale out her allocated share to the developers/OPs for a consideration. It is to be noted that the development agreement was executed on 08/10/2013 and the supplementary agreement was executed before being notarised on 28/10/2013. So question of availing ‘Service’, as is defined under Section 2(1)(o) of the Consumer Protection Act, 1986, does not arise. Moreover as the complainant herself agreed to hand over her share to the developers for a consideration, so question of ‘Consumer’, as is defined under Section 2(1)(d) of the Act, does also not arise. So, mere a sale of right does not entitle anyone to take shelter under the purview of the C. P. Act, 1986/2019 also.
So, in bare eye we see in this complaint that the sale simpliciter of an allocated portion has been occurred which do not come under the purview of the Consumer Protection Act, 2019. The Hon’ble Supreme Court in the judgement in Civil Appeal No. 331 of 2007 (Ganeshlal – Vs. – Shyam), decided on 26.09.2013, was pleased to hold:-
“ ….. as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned, and if there is any complaint, the same would not be covered under the said Act.” [Emphasis provided.]
At this stage let us consider the documents adduced by the OPs through Firisty. The OPs has annexed certified copy of the Title Suit No. 1162 of 2022 before the Ld. Civil Judge (Jr. Divn.), 2nd Court, Howrah, against the OPs for cancellation of development agreement and power of attorney which is pending yet. Also they annexed a judgement passed by the Hon’ble High Court at Calcutta in C. O. No. 3111 of 2008, decided on 14/12/2011, while deciding against an order passed by the Ld. District Forum under the light of the C. P. Act, Section 2(1)(d)/(g)/(o) and the West Bengal Building (Regulation of Promotion) Act, 1993, Section 12A, it has been observed by the Hon’ble High Court that:
“30. Thus in view of the Specific embargo created under the special Act, the Consumer Forum or the State Commission was not competent to pass the order and/or entertain the said completion. ……… ” [Emphasis provided].
However we are not going to discuss on this judgement further. But there is an array of judgements passed by the Hon’ble National Consumer Disputes Redressal Commission or by the Hon’ble Supreme Court wherein it decided that a sale simpliciter does not come under the purview of the Consumer Protection Act, 1986/2019 until and unless availing/providing ‘service’ is involved therein.
So, in conclusion, we are of the considered view that there is no involvement of “Service” which were to be given by the OP in the instant case as per the Act, except mere payment of balance consideration, and the complainant is thereby not entitled to get any relief under the Act. We are in folded arms refraining ourselves to award any relief to the complainant. Thus the instant complaint is liable to be dismissed without any merit. The complainant should have to move before the appropriate Court of Law with her complaint.
Hence, it is
ORDERED
That the complaint Case No. CC/80/2018 be and the same is dismissed on contest against the Opposite Parties for devoid of any merit and with no cost.
Let a copy of this order be issued, on demand, to the parties of both sides free of cost.
Dictated and corrected by me
Member.
