Orissa

Cuttak

CC/80/2016

Biswanath Sahoo - Complainant(s)

Versus

M/s Nagen Constructions & Promotor (P) Ltd - Opp.Party(s)

B Baral

31 Jul 2017

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C. No.80/2016

                        1.    Biswanath Sahoo,

                  At:Chanarapara,PO:Sankhatras,

                               Via:Phulnakhara,P.S:Sadar,Dist:Cuttack.

 

            2.    Angurubala Sahoo,

                              At: At:Chanarapara,PO:Sankhatras,

                              Via:Phulnakhara,P.S:Sadar,Dist:Cuttack .

 

                       3.     Parsuram Sahoo,

                             At:Chanarapara,PO:Sankhatras,

                             Via:Phulnakhara,P.S:Sadar,Dist:Cuttack.

 

                            All are at present residing at

                            Kanheipur,PO:CRRI(Bidyadharpur),

                            P.S:Chauliaganj,Dist:Cuttack.                                                                       … Complainants.

 

                Vrs.

 

1.      Managing Director,Sri Nagen Samal,

                           M/s. Nagen Constructions & Promoter (P) Ltd.,

                           Cuttack,At:Naya Chowk,Gouda Sahi,

                           PO/PS:Madhupatna,Town/Dist:Cuttack.      

 

2.        Sri Nagen Samal,

At:Samanta Sahi,PO:Buxibazar,

P.S:Purighat,Town/Dist:Cuttack.                                                                … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Sri Bichitra Nanda Tripathy, Member.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   21.06.2016

Date of Order: 31.07.2017

 

For the complainant:           Mr.B.Baral,Adv. & Associates.

For Opp.Parties 1 & 2:         Mr. A.K.Samal,Adv. & Associates.

 

Sri Dhruba Charan Barik,President.

 

The complainants have filed this case alleging therein deficiency in service and unfair trade practice on the part of the O.Ps and seeking appropriate relief against them in terms of their prayer in the complaint petition.

1. The case of the complainants in a nutshell is that the complainant Nos.1,2 & 3 are members of a Joint Hindu family and were searching for a piece of land for their residential purpose in the year 2002.  The O.Ps 1 & 2 as Promoters and Developers of land used to supply house site to different customers through advisement.  The complainant No.1 for himself and on behalf of the other two complainants came across that advertisement and entered into an agreement on 1.10.2002 with the O.Ps for purchase of house site situated at Pratap Nagari in the district of Cuttack.
2. The project work of the O.Ps is named and styled as ‘Silver City’.  According to the terms and conditions of the agreement between the parties, the O.Ps would sell two residential sites each measuring A.0.09 Decimals 2 kadis in that Project area to  the complainants.  The O.Ps had also to provide facilities for road, drains, plantations and open space in the said Silver City complex for the benefit of  purchasers and also to obtain necessary approvals of the concerned authority for construction of buildings before delivery of possession of the land to them.  It was also agreed that price of one plot measuring A.0.09Dec. 2 kadis was fixed at Rs.1,99,500/- and would be paid in 36 monthly installments @ of Rs.3000/-  together with non-refundable membership fees of Rs.500/-.  Advance money of Rs.43,000/- had to be paid by the complainant for each plot as per the scheme.  The complainant then agreed to purchase  2 plots and necessary money was paid in advance to the O.Ps on different dates.  Thereafter the complainants went on making payments of different amounts to the O.Ps on different dates with money receipts granted by the latter to the complainants for each transaction which have been clearly mentioned in the complaint itself.  The total amount so far received by the O.Ps from the complainants for the above two plots was Rs.3,89,000/-.  The copies of the money receipts granted by the O.Ps to this effect have been filed and marked as Annexure-1 series.  It is important to leave a mention here that in addition to the above amount, the complainants have also paid Rs.10,000/- to the O.Ps without money receipt and the latter assured the former to give the same just before registration of the land.
3. The O.Ps even after receiving the full consideration towards sale of the land to the complainants did not come forward for registration of the land despite repeated requests by the complainants.  Lastly the above two pieces of land appertaining to sub plot No.26A & 27A were sold to the complainants by the O.Ps vide registered sale deed bearing No.2412 dt.18.04.2005 in the said locality and the Kissam of land was Jalasaya-1 .  The O.Ps 1 & 2 executed the sale deed by virtue of power of attorney bearing document No.,476 dt.04.09.2003 executed by the owners of that land namely Faudari, Behera,Giridhari Behera,Sridhar Behera,Bodyulata Behera,Dali Behera , Jali Behera, Bighneswar Behera and Ganeswar Behera appertaining to Khata No.310 plot no.1320 under Tahsil and P.S:Cuttack Sadar and it was measuring A.3.37 Dec. in total.    It is categorically stated that the O.Ps knowing fully well that Jalasaya land cannot be sub-divided they sold that two pieces of land to the complainants for which no mutation proceeding could be initiated, no bank loan could be availed, no electric connection could be given, no water facility could be provided and much less no plan and estimate for construction of the house could be approved by the concerned authorities.  The sale of that land by registered sale deed according to complainants is totally illegal and unlawful and as such the O.Ps had cheated them to grab the consideration amount given to them earlier.
4. Even after sale of that land, the registered sale deed was not handed over to the complainants’ in spite of repeated requests made by them.  The O.Ps have only given Xerox copy of the said registered sale deed without there being delivery of possession of that land to them.  Lastly the complainants obtained the certified copy of the sale deed on 30.5.16 and came to know about the fraudulent intention of the O.P. in making such transaction.  The O.Ps have also not acted in pursuance of the terms and conditions of the agreement reached between them and  prepared this agreement on 30.9.2002 behind back of the complainants.  It has also been stipulated in the said agreement that any dispute arising out of the sale of the said land shall be referred to an Arbitrator to be appointed by the O.Ps  who are first party to the said agreement.  According to the complainants the activities of the O.Ps are not only tantamount to deficiency in service and unfair trade practice but also violation of Sec-28 of the Indian Contract Act.  The copies of the registered sale deed of the disputed land and the said agreement have been filed and marked as Annexure2 & 3 respectively.
5. The activities of the O.P have no doubt caused serious financial loss to the complainants as well as undue harassment and mental tension to them.  They belong to marginalized section of the society and could make arrangement for payment of consideration out of their hard earned money and also by borrowing money from different persons at higher rate of interest. It is therefore prayed that the O.Ps may be directed to pay Rs.20,00,000/- to the complainants towards their financial loss,  harassment and mental agony undergone by them due to illegal and fraudulent act of the O.Ps, or  direct them to register  two pieces of fair and suitable land in exchange in their favour by executing registered sale deed.  It is also prayed that the O.Ps may be directed to pay cost of litigation to them.
6. Both the O.Ps filed written version of their case denying the material averments of the complaint petition.  Inter alia it is stated that the above case is not maintainable both in fact and law since the complainants are not consumers.  It is further stated that the O.Ps have not taken extra money for development of the disputed land in any manner as alleged by the complainants or for obtaining plan approval for construction of their building on it.  The possession of land according to them has already been delivered to the complainants after registration of the sale deed and there is no bar to get the same land mutated in their favour and the registered sale deed executed by them is legal and binding.
7. It is clearly stated by the O.Ps that if the complainants are not interested to keep the disputed land, they may alienate it in their favour by executing a registered sale deed and the O.Ps are ready and willing to take that property from them.  Accordingly it is stated that there is no deficiency in service or unfair trade practice on their part in any manner and case of the complainants may be dismissed with cost.
8. We have heard the learned counsel for the complainant as well as for the O.Ps at length.  We have also gone through the documents filed and marked as annexures on behalf of the complainants.
9. At the outset, the short question that falls for consideration is whether the complainants are consumers’ under the C.P.Act and whether the present case is maintainable in the eye of law on that ground.  The learned counsels for the complainant as well as for the O.Ps have taken divergent views with regard to the status of the complainants as consumers in this case. In this connection reference may be had to a decision of Hon’ble State Commission, Chandigarh reported in 2016(4) CPR at page-74.  It has been held by his lordship that when a person applies for allotment of a building or sites or for a flat constructed by Development Authority and enters into an agreement with developer or contractor, the nature of transaction is covered by the expression ‘service’ of any description.  As such, the said person is a consumer.    In another decision of the Hon’ble Supreme Court reported in 2017(1) CPR-44 S.C(Haryana State Agricultural Marketing Board Vrs. Bishamber Dayal Goel and others) it has been observed that Statutory Boards and Development Authorities which are allotting sites with promise of development are amenable to jurisdiction of consumer Forum in case of deficiency in service. Therefore the submission made by the learned counsel for the O.P that, the complainants cannot be treated as a consumer within the meaning of Sec-2 of the C.P.Act is not accepted.  The complainants in such a situation will squarely fall under the definition of consumer as defined U/S-2(i)(ii) of the C.P.Act.
10. The next point of objection advanced by the learned counsel for the O.P is that admittedly there is an arbitration clause in the agreement entered into by both the parties for settlement of any dispute arising out of the transaction of land between them and in such a situation, the complainants being customers have violated the condition of the said agreement by filing this case before this Forum for redressal of their grievances.  It has been seriously resisted by the learned counsel for the complainants that the present case before this Forum is maintainable despite the arbitration clause in the agreement between the parties.  In this connection the judgment of the Hon’ble National Commission, New Delhi reported in 2016(4) CPR 734(NC) (United Township Corporation Vrs. Akhilesh Jain) may be adverted to.  It has been very succinctly held by the Hon’ble National Commission that the consumer complaint is maintainable despite an arbitration clause in the agreement between the parties and in such a situation the concerned O.P has two options either to file written statement before the Dist. Forum and to take objection U/S-8 of the Arbitration and Conciliation Act,1996 or to file a separate application U/S-8 of the said Arbitration and Conciliation Act.  Still another decision of the Hon’ble State Commission, Chandigarh on this point has been reported in 2016(4) CPR-22.

It has been held by his lordship that jurisdiction of the Consumer Fora to entertain a consumer complaint in face of an arbitration clause in agreement is inbuilt in the C.P.Act,1986.  The said Act provides for better protection of interest and rights of the consumers.  In view of the discussions made above, the submission of the learned advocate for the O.P. has no force in it and it is held that the case is maintainable before this Forum despite arbitration clause in the agreement.

 

11. The learned advocate for the complainant has fairly submitted that the O.Ps have committed breach of terms and conditions of the agreement by not making necessary development to the house site sold to them and for the said reason they are liable to pay compensation because of deficiency in service on their part.  The learned advocate for the O.ps has taken exception to it and has stated that there was no such assurance for development given by the O.Ps to them after delivery of possession.  In this back drop it is appropriate to refer to the agreement (Annexure-3) entered into by the parties.  It is clearly revealed from the said agreement that the O.Ps who are first party to the said agreement have clearly agreed to provide facilities for road, drains, plantations and open space for the benefit of the purchasers and also have further agreed to obtain necessary approval of the site from the competent authority if so necessary before delivery of possession of the plot to the purchasers.  In view of such stated position appearing in the agreement between the parties, it cannot but be held that the O.ps having not made any effort for development of the disputed site, are found deficient in rendering service to the complainants as well as also following unfair trade practice and for the said reason they are liable to pay compensation to the complainants.

                In their written version O.Ps have clearly admitted that if the complainant is desirous of reselling the said land to them, they are ready and willing to take it back through a registered sale deed executed in their favour. There is no objection to it in any manner made by the learned advocate for the complainant.

In the facts and circumstances of the case and for the reasons afore stated, the O.Ps are found deficient in rendering service to the complainants as well as following unfair trade practice against them.  Hence ordered;

 

 

                                                                                                ORDER

                The case of the complainant is allowed on contest against the O.Ps.  They are directed to pay Rs.10,00,000/- to the complainant towards compensation including consideration received or to alienate  in exchange other suitable two pieces of land of equal value free from all encumbrances meant for use as house sites by executing registered sale deeds in favour of the complainant .  They are also directed to pay ligation cost of Rs.5000/- to the complainant.  This order shall be given effect to within a period of 45 days from the date of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 31^st   day of July,2017 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                        President.

                                                             

                                                                                                                  (Sri B.N.Tripathy )

                                                                                                                           Member.

 

                                                                                                                   (Smt. Sarmistha Nath)

                           Member(W)