West Bengal

Howrah

CC/327/2019

JOYDEV DUTTA, - Complainant(s)

Versus

Pradip Satpati, - Opp.Party(s)

Miss Koyeli Das

03 Dec 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION HOWRAH
20, Round Tank Lane, P.O. and P.S. Howrah, Dist. Howrah-711 101.
Office (033) 2638 0892, 0512 Confonet (033) 2638 0512 Fax (033) 2638 0892
 
Complaint Case No. CC/327/2019
( Date of Filing : 07 Nov 2019 )
 
1. JOYDEV DUTTA,
S/O. Subal Chandra Dutta, 389 G.T. Road, Salkia, P.S. Golabari, Howrah 711106. Also at 85, Banerjee Bagan Lane, Howrah 711106.
...........Complainant(s)
Versus
1. Pradip Satpati,
S/O. Uma Kanta Satpati, 34, Sri Moni Bagan Lane, P.O. Salkia, P.S. Golabari, Howrah 711106.
2. Puspa Nandy
W/O. Late Dulal Chandra Nandy, residing at 23 and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
3. Samir Nandy
S/O. Late Dulal Chandra Nandy, residing at 23 and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
4. Kumari Dipali Nandy
D/O. Late Dulal Chandra Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
5. Menka Nandy
W/O. Late Nilu Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
6. Dipak Nandy
S/O. Late Nilu Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
7. Sujit Nandy
S/O. Late Nilu Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
8. Minati Nandy
W/O. Late Mohan Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
9. Subir Nandy
S/O. Late Mohan Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
10. Robin Nandy
S/O. Late Bibhuti Bhusan Nandy, residing at 23and 24/5, Bhuban Mohan Mukherjee Lane, P.S. Malipanchghora, Howrah 711106.
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MR. Debasish Bandyopadhyay PRESIDENT
 HON'BLE MR. Dhiraj Kumar Dey MEMBER
 HON'BLE MRS. Minakshi Chakraborty MEMBER
 
PRESENT:
 
Dated : 03 Dec 2024
Final Order / Judgement

Date of Filing             :    07 November, 2019.

Date of Judgement    :    03 December, 2024.

Mr.  Dhiraj Kumar Dey,   Hon’ble Member.

            This case arises when Sri Joydev Dutta, hereinafter called as the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986 (the Act) against (1) Sri Pradip Satpati, (2) Smt. Puspa Nandy, (3) Sri Samir Nandy, (4) Kumari Dipali Nandy, (5) Smt. Menka Nandy, (6) Sri Dipak Nandy, (7) Sri Sujit Nandy, (8) Smt. Minati Nandy, (9) Sri Subir Nandy and (10) Sri Robin Nandy, hereinafter collectively called as the Opposite Parties or OPs, alleging deficiency in service on the part of the OPs for non-delivery of Possession, non-execution and non-registration of the flat for which the complainant has paid some consideration.

            Facts as emerged from the complaint petition are that the complainant executed an Agreement for Sale with the OP No.–1 on 22/06/2017 intending to purchase a 500 sq. ft. flat including super built up area on the 4th Floor of the building constructed at premises No. 23 + 24/5, Bhuban Mohan Mukherjee Lane, P.S.– Malipanchghora, Howrah–711106 under HMC Ward No.–3. The OP Nos.–2 to 10 are the owners of the aforesaid premises.  This Agreement for Sale was notarised on 08/01/2019.  Complaint paid ₹9,00,000/- part by part on different dates before execution of the sale agreement and the total consideration of the subject flat was fixed at ₹10,00,000/- at the rate of ₹2,000/- per sq. ft.  It is stated in this agreement that the OP No.–1 would hand over possession of the said flat within 1 (one) month from the date of execution of this agreement.  But the OP No.–1 failed to hand over possession of the flat to the purchaser/complainant despite repeated requests of the purchaser/complainant.  Even the OP No.–1 took ₹10,000/- from the complainant for installation of the electric meter, but such installation has not been made.  Lastly on 31/01/2019 complainant sent a letter to the OP No.–1 through his Ld. Lawyer to execute a Deed of Conveyance and to deliver the possession of the subject flat in favour of the complainant along with the completion certificate.  The complainant alleged that despite receiving the letter dated 31/01/2019 the OP No.–1 neither executed the Deed of Conveyance nor did he deliver possession of the subject flat to the Complainant, though he was willing to pay the balance consideration during execution of the Deed and delivery of possession.  Finding no other way to redress his grievance the complainant filed the instant complaint petition before this Forum, now the Commission, praying:

            (i)         to direct the OPs to execute and register the Deed of Conveyance in respect of the subject flat in favour of the complainant after receiving the balance consideration;

            (ii)        to deliver the peaceful possession of the flat in complete habitable condition with possession letter and completion certificate;

            (iii)       to direct the OPs to pay compensation of ₹2,50,000/- for the complainant’s mental agony and harassment along with ₹30,000/- as litigation cost  and any other relief/reliefs to which the complainant is entitled by law and equity;

OR   (iv) to direct the OPs to return the amount of ₹9,00,000/- with interest till realisation.

            Complainant filed copies of (i) the notarised Agreement for Sale executed on 22/06/2017 and (ii) the letter dated 31/01/2019 sent to the OP No.–1 through Ld. Lawyer as annexure to the complaint petition.

            Notices were served upon the OPs, after admission, to appear and contest the case by filing their written versions. The OP No.–1 did not appear nor did he file his written version despite receiving notice for which the case proceeded ex parte against the OP No.–1.  The OP Nos.–2 to 10 appeared through their Ld. Lawyer and filed their written version.  Then the complainant filed his Evidence on Affidavit. OP Nos.–2 to 10 failed to file their questionnaires and even they did not file their Evidence on Affidavit.  Ultimately argument was heard in full from the complainant side and the complainant filed his Brief Notes on Argument annexing some case laws in support of his claims.  None of the OPs took part in the argument.    

            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 under the OP in accordance with the C. P. Act, 1986;

            (b)        whether the OP is deficient in rendering proper service to the complainants;  

and      (c)        whether the complainant is entitled to get relief(s) as prayed for.

                       Let us take these points together in our discussion to avoid repetition.

DECISION WITH REASONS

            Factual matrix emerged from the complaint and the annexed documents:

            It is the contention of the complainant that he entered into an Agreement for Sale with the OP No. – 1 on 22/06/2017 intending to purchase a flat on the 4th Floor at the newly constructed building by the OP No.–1 at the premises at 23 + 24/5, Bhuban Mohan Mukherjee Lane, P. S. – Malipanchghora, Howrah – 711 106, under HMC Ward No. – 3, comprising of total area 2 Cottah 4 Chittack 31 sq. ft. as per assessment record of HMC but found 2 Cottah 4 Chittack 3 sq. ft. after physical measurement.  OP Nos. – 2 to 10 are the owners of the premises who executed a registered Development on 24/04/2015 with the OP No.–1 and also executed a registered Power of Attorney in favour of the OP No.–1 on that date in order to construct a multi-storied building.  The complainant alleged that relying on the presentation of the OP No.– 1 he agreed to purchase the 500 sq. ft. flat on the 4th Floor for a total consideration of ₹10,00,000/-.  Complainant paid ₹9,00,000/- to the OP No.–1 on different dates prior to execution of this notarised sale agreement. It was decided through this agreement that the OP No.–1 would hand over possession of the flat in complete habitable condition within 1 (one) month from the date of this agreement.  But the OP No.–1 failed to hand over possession of his flat despite his repeated requests.  Lastly, the complainant sent a letter through his Ld. Lawyer on 31/01/2019 demanding possession, execution and registration of his flat by paying the balance consideration which remained unanswered, and that is why he filed this instant complaint before this Forum/Commission praying as stated herein above.

            Complainant has brought all his allegations in his evidence.

            Rival Submissions:

            The OP No. – 1 has not contested this case though repeated opportunities were given to him.   Consequently, we have nothing in hand against the allegations brought forward by the complainant in respect of the O.P. no. 1.

            The OP Nos.–2 to 10 jointly by filing their written version categorically disputed and denied the allegations of the complainant and pleaded to dismiss the complaint by saying that the case is not a consumer case and the OP Nos.–2 to 10 are not  liable for any deficiency in service to the complainant.  Along with other denials the OP Nos.–2 to 10 stated in their written version, in Paragraph No.–13 in Page–5, that the OP No.–1 constructed some additional floors without the consent of the landlords, i. e. the OP Nos.–2 to 10, and accordingly a B. M. R. Case has been started by the concerned authority of HMC against the OP No.–1.  Apart from this the OP No.–1/Developer has not delivered the allocated share of the owners as per terms and conditions of the development agreement dated 24/04/2015.  It is also stated in this paragraph that they has requested the OP No.–1 to take necessary steps in regard to the B. M. R. Case but the OP No.–1 has not taken any steps for which the owners has initiated a suit being No. 251/2018 for declaration an injunction along with other reliefs before the 2nd Civil Judge (Sr. Divn.) at Howrah and in the same suit the owners have also filed a petition under Order 39 Rule 1 & 2 read with Section 151 CPC.  On 15/08/2018 the Ld. Court has been pleased to grant an order “that both the plaintiffs and the defendant are directed to maintain status quo in the scheduled mentioned suit property.  Defendant  (OP No.–1) are further restrained from making any unauthorised construction and/or not to make any attempt to transfer and/or to sell any portion of the proposed building on violation of terms and conditions of the development agreement dated 24/04/2015 till further order.” [Emphasis provided.]  They also stated that this order of injunction is still continuing and the complainant is well versant of this order still he prayed for possession and execution of the sale deed in respect of his proposed flat.  They also stated that as the self same case is still pending so the complainant has no right to file the instant complaint and is liable to be dismissed in limini with heavy cost upon the complainant.

            The OP Nos.–2 to 10 have not filed any questionnaires against the Evidence on Affidavit filed by the complainant nor did they file their evidence despite ample opportunities were given to them. They even have not participated in the argument.

            Findings:

            We have scanned and scrutinized the complaint petition and its annexed documents, evidence of the complainant and the written version of the OP Nos.–2 to 10.  It is an admitted fact that the complainant paid ₹9,00,000/- out of total consideration of ₹10,00,000/- intending to purchase a 500 sq. ft. flat on the 4th Floor of the proposed building constructed by the OP No.–1 at the premises of the OP Nos. – 2 to 10.  It was settled through the sale agreement dated 22/06/2017 that the OP No.–1 would hand over possession  of the subject flat in question within 1 (one) month from the date of the sale agreement.  But that never happened despite repeated requests of the complainant.  It is stated in the sale agreement that the OP No.–1/developer got the building plan duly sanctioned by the concerned authority vide B. R. No. 11/AE/B-1/15-16, dated 11/05/2015 (Clause-XIV of the sale agreement).  But it is also stated therein that the building plan was sanctioned for construction of a three storied building.  So, a question now arises: when the OP No.–1/developer was permitted to construct a three storied building, then why had he entered into an agreement to sell a flat on the 4th Floor?  At this point we consider the submission of the OP Nos.–2 to 10 wherefrom it appears that the developer has illegally constructed additional floors without permission of the landowners and for this reason a B. M. R. case has been initiated by theHMC authority and the landowners also filed a suit before the 2nd Civil Judge (Sr. Divn.), Howrah and this is still pending for disposal.

            From the submission of both the complainant and the contesting Ops, it cannot be denied that the complainant has paid some consideration to the OP No.–1, not the contesting Ops, intending to avail ‘service’, as is defined under Section 2(1)(o) of the Consumer Protection Act, 1986, in the form of housing construction. So he is a ‘Consumer’, as is defined under Section 2(1)(d) of the Act,  under the OP No.–1.  But it cannot be denied that the contesting OP Nos. – 2 to 10 have executed a development agreement with the OP No.–1 and also given Power of Attorney to the OP No.–1 to construct the building in their premises.  So the Complainant is a consumer under the OP Nos.–2 to 10 also.  Consequently the OP Nos.–2 to 10 are also liable for deficiency in service caused by the OP No.–1.

            Under this position let us take some valuable observations of Ld. Upper Courts.

            In Priyanka Estates International (P) Ltd. v. State of Assam reported in (2010) 2 SCC 27 the Hon'ble Apex Court, observed as follows:-

            "55. It is a matter of common knowledge that illegal and unauthorised constructions beyond the sanctioned plans are on rise, may be due to paucity of land in big cities. Such activities are required to be dealt with by firm hands otherwise builders/colonisers would continue to build or construct beyond the sanctioned and approved plans and would still go scot-free. Ultimately, it is the flat owners who fall prey to such activities as the ultimate desire of a common man is to have a shelter of his own. Such unlawful constructions are definitely against the public interest and hazardous to the safety of occupiers and residents of multi-storeyed buildings. To some extent both parties can be said to be equally responsible for this. Still the greater loss would be of those flat owners whose flats are to be demolished as compared to the builder."  [Emphasis provided.]

            In W.P.A. No. 4408 of 2022 the Hon’ble Calcutta High Court (Appellate side) held that:

            “The authority has recorded that if the erstwhile Board of Councillors had regularized similarly situated premises, the same should have been done in terms of Section 177 of the Howrah Municipal Corporation Act 1980. Clearly, the present establishment has not been taken any responsibility for such retentions granted earlier. However, the corporation is now under a Board of Administrators and the competent authority has taken a decision not to allow retention of additional floors upon holding that those are not minor deviations. Such reasons appear to be rational and proper. There is no procedural irregularity in the decision making process. The law has been followed. Regularizations granted to some other unauthorized constructions cannot vest the petitioners with a right to get the additional floors regularized. Illegalities, if any, committed in the past, cannot be a ground for regularization or retention of the unauthorized constructions.”  [Emphasis provided.]

            While filing his evidence and B. N. A., the complainant has annexed some citations of the Hon’ble Apex Court and the Hon’ble National Consumer Disputes Redressal Commission which support our views as stated herein below.

            The above discussion tells us that the complainant fell pray of the illegal activity of the developer/OP No.- 1.  We have no hesitation to hold that we cannot direct the OP No. – 1 to give possession of the subject flat which was illegally constructed by the OP No. – 1 without permission of the landowners and also of the concerned authority.  We cannot allow the complainant’s prayer for execution and registration of the said flat.  Rather we should direct the OP No.–1 to refund the entire amount of ₹9,10,000/-, of which ₹9,00,000/- paid as consideration and ₹10,000/- paid for electric connection,  paid by the complainant.  The complainant prayed for compensation of ₹2,50,000/-.  We think an interest at the rate of 9% on the total amount paid by the complainant with effect from the date of filing this case before this Commission, i. e. from 07/11/2019 till realisation will be sufficient for compensation.  We also think that the OP No.–1 is liable to pay ₹7,000/- to the complainant as litigation cost.

            It is, therefore,

ORDERED

            that the Complaint Case bearing No. CC/327/2019 be and the same is allowed ex parte against the Opposite Party No. – 1 and with cost and dismissed on contest against the Opposite Party Nos. – 2 to 10.

            1.    The Opposite Party No. – 1 is directed to refund ₹9,10,000/- to the complainant together with an interest at the rate of 9% on this amount with effect from the date of filing this complaint, i. e. from 07/11/2019 till realisation within 45 days from the date of this order.  The Opposite Party No. – 1 is also directed to pay ₹7,000/- to the complainant as litigation cost within the abovementioned time period. 

            If the Opposite Party No. – 1 fails to comply with these directives the complainant will have the liberty to take steps under the law.

            Both the parties are given liberty to get a free copy of this order.

Dictated and corrected by me

 

            Member.

 
 
[HON'BLE MR. Debasish Bandyopadhyay]
PRESIDENT
 
 
[HON'BLE MR. Dhiraj Kumar Dey]
MEMBER
 
 
[HON'BLE MRS. Minakshi Chakraborty]
MEMBER
 

Consumer Court Lawyer

Best Law Firm for all your Consumer Court related cases.

Bhanu Pratap

Featured Recomended
Highly recommended!
5.0 (615)

Bhanu Pratap

Featured Recomended
Highly recommended!

Experties

Consumer Court | Cheque Bounce | Civil Cases | Criminal Cases | Matrimonial Disputes

Phone Number

7982270319

Dedicated team of best lawyers for all your legal queries. Our lawyers can help you for you Consumer Court related cases at very affordable fee.