1.       The present Consumer Complaint (CC) has been filed by the Complainants against Opposite Parties (OPs) as detailed above, inter alia praying for directions to the OPs to:-

(i)      pay  Rs.37,50,000/- alongwith an additional sum of Rs.2,00,000/- along with interest.

(ii)     paint the flat and pay Rs.20,000/- as litigation cost and Rs.10,000/- as compensation for harassment and mental pain and agony.

(iii)    declare that the open terrace measuring about 280 sq.ft. super built up area should be used as common portion by all the occupiers of the building as per their rights.

2.       Notice was issued to the OPs on 10.01.2020.  Parties filed Written Statement/Reply, Evidence by way of an Affidavit and Written Arguments/Synopsis etc. as per details given in the Table below. 

3.       Initially, the complainants preferred complaint CC/673/2018 before the State Commission.  The OPs filed IA/369/2019 , challenging the maintainability of the proceedings on the ground of lack of pecuniary jurisdiction of the State Commission.  The State Commission allowed the IA filed by the OPs and rejected the complaint of the complainants being not maintainable for want of pecuniary jurisdiction stating in its order that this order will not debar the complainant to file the complaint afresh before the appropriate Forum having jurisdiction to entertain the same in respect of same cause of action. 

4.       It is averred in the complaint that: -

(i)   The complainants entered into a registered development agreement dated 14.05.2014 with OP-1. OP-2 is partner of OP-1, OP-3 is the widow of Mintu Mondal being the initial partner of OP-1, who has been taken as partner of OP-1. 

(ii)     As per terms and condition of the Development Agreement dated 14.05.2014, if the authority of the Kolkata Municipal Corporation allows to construct room as per their rule then complainants were supposed to get fifty percent of the sale value of the additional area to be constructed by Shivam Construction at Premises No. 59B, Garcha Road, Kolkata-19 and also pay an additional sum of Rs.2,00,000/-. 

(iii)    The  OPs obtained the sanctioned building plan on 07.01.2016 and constructed an additional area over the three storied building and thereafter sold the additional constructed building and thereafter sold the additional constructed area of 775 sq.ft. super build up area in the 3^rd floor as semi commercial flat for an amount of Rs.75,00,000/- and open terrace measuring about 280 sq.ft. super built up area for an amount of Rs.8,00,000/- by virtue of a Sale Deed registered in the Office of the A.D.S.R. Alipore  in  the year 2017.  The OP has not paid the fifty percent share of the sale value i.e. Rs.37,50,000/- and the additional sum of Rs.2,00,000/-  to the complainants. 

(iv)    The OPs illegally sold the open terrace measuring about 280 sq.ft. super build up area for Rs.8,00,000/- as roof is for common use and no occupier should have exclusive roof right as per the Development Agreement. 

(v)     The Completion Certificate was issued by the Kolkata Municipal Corporation on 15.03.2018. 

(vi)    The OPs were also supposed to paint the complainants’ flat as per terms and conditions of the Development Agreement but the painting work is not done by the OPs.

(vii)   On 16.08.2018, he complainants sent a legal notice to the OPs asking the OPs to paint the flat of the complainants and for paying Rs.37,50,000/- being the 50% of the sale proceed of the flat measuring amount 775 sq.ft. super built up area situated in the 3^rd floor of the building and an additional amount of Rs.2,00,000/- along with banking interest since 30.06.2017 within 15 days of receipt of notice. 

(viii)  The OPs replied to the legal notice on 30.08.2018, denying to pay any amount.  Hence, the complainants are before this Commission.

5.       The OPs in their written statement/reply stated that:-

(i)      It is contended by the OPs that the complaint filed by the complainants is not maintainable before this Commission and is liable to be dismissed in limini. The complainants as the landowners of the property situated at 59B, Garcha Road, Kolkata, received Rs.3,00,000/- as initial sum, from the OPs at the time of signing the Development Agreement.  The complainants have not made out a case of defective construction, non delivery of possession, non execution of conveyance etc. but have raised a money claim simplicitor being the part of sale proceeds of flats. The complainants are claiming 50% of the sale value of an immovable property i.e. Rs.37,50,000/- and an additional sum of Rs.2,00,000/-. The complainants are claiming 50% share of the sale value of an immovable property, readymade flats.  The status of complainants are not that of consumer.  The complainants are alleging to be co-seller who are entitled to 50% of the sale value of the immovable property.  Now the complainants are only flat owners of their respective allocation in terms of the development agreement dated 14.05.2014.

(ii)     It is also contended that the complainants are not entitled to get 50% of the sale value of any additional area to be constructed by the OPs since as per the development agreement the complainants are only entitled to get the 50% of the sale value only if the OPs construct additional floor only after obtaining completion certificate.  In the instant case, the OPs have constructed nothing after obtaining the completion certificate from the authorities of the Kolkata Municipal Corporation.  The OPs have delivered the owner’s allocation to the landowners as per the Development Agreement.  The complainants are raising the alleged money claim being the 50% of the rate amount, in the guise of a seller. 

(iii)    The complainants are not seeking any relief as consumer, purchaser, hirer of service, alleging deficiency in service and seeking compensation and/or an order for removal of deficiency. 

(iv)    It is also contended by the OPs that the complainants have referred to the deed of conveyance dated 27.06.2017 without making the purchaser therein i.e. M/s UHK Manpower Services Pvt. Ltd./present occupier a party to the instant proceeding. 

6.       Heard counsels of both sides.  Contentions/pleas of the parties, on various issues raised in the Complaint, based on their Complaint/Reply, Evidence, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

6.1     It is contended by the complainants that the complainants ae joint owners of property being premises No. 59B Garcha Road, Kolkata.  They entered into registered development agreement on 14.05.2014 with the OPs. The OPs obtained sanctioned building plan on 07.01.2016 and constructed an additional area over the three stories building and thereafter sold the additional constructed area of 775 sq.ft.  super built up area in the 3^rd floor as semi commercial flat for an amount of Rs.75,00,000/- and open terrace measuring about 280 sq.ft. super built up area for Rs.8,00,000/- by virtue of a Sale Deed registered in the office of the ADSR Alipore, recorded in Book No.1, Volume No. 1605-2017, page from 99017 to 99058 being No. 160503731 for the year 2017 but the OPs have not paid the 50% share of the sale value i.e. Rs.37,50,000/-  being the sale value of the flat and the additional sum of Rs.2,00,000/-.  The OPs illegally sold the open terrace measuring about 280 sq.ft. super built up area for an amount of Rs.8,00,000/- as roof is for common use and no occupier should have exclusive right as per Development Agreement.  The complainants contended that they are consumers as the Hon’ble Supreme Court of India in Civil Appeal No. 3302 of 2005 between Faqir Chand  Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr., has held that where the builder commits breach of his obligations, the owner has two options. “He has the right to enforce specific performance and/or claim damages by approaching the civil court.  Or he can approach the Forum under Consumer Protection act, for relief as consumer, against the builder as a service provider.” “Section 3 of the Consumer Protection Act 1986 makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the landowner.”    Further, it is contended by the complainants that the OPs were supposed to get the flat of complainants painted as per the agreement but they neglected to do so in spite of repeated requests.  In support of their contentions, the complainants also relied upon the judgment of this Commission reported in Civil Appeal No. 3302 of 2005 in Faqir Chand Gulati Vs. Uppal Agencies Pvt. Ltd. & Anr.,  in Ambrish Kumar Shukla & 21 Ors. Vs. Ferrous Infrastructure Pvt. Ltd. I (2017) CPJ 1 and the judgment passed by the Hon’ble Supreme Court in Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. AIR 1996 SC 2508.

6.2     On the other hand OPs contended that the complainants are not entitled to get 50% of the sale value of any additional area to be constructed by the OPs since as per development agreement dated 14.05.2014 the complainants are only entitled to get the 50% of the sale value only if the OPs construct additional floor only after obtaining completion certificate.  In the instant case, the OPs construct nothing after obtaining the completion certificate from the authorities of the Kolkata Municipal Corporation.  The OPs have delivered the owner’s allocation the landowners as per Development Agreement.  The complainants are not seeking any relief as consumer, purchaser, hirer of service, alleging deficiency in service and seeking, compensation and/or an order for removal of deficiency.  The complaint is not maintainable.  The complainants have referred to the deed of conveyance dated 27.06.2017 without making the purchaser therein i.e. M/s UHK Manpower Services Pvt. Ltd./present occupier a party to the instant proceeding.  The complainants are seeking relief for all other occupiers, no leave has been granted by the commission in allowing the complainants to file this complain in representative capacity, all other occupiers of the building have not been named in the complaint.  Hence, the prayer (c)  (that the open terrace measuring about 280 sq.ft. super built up area should be used as common portion by all the occupiers of the building as per their rights) of this complaint is not maintainable.   OPs also contended that the landowners allocation have already been painted by the OPs, there is also open terrace on the building.

7.       We have carefully gone through the Development Agreement dated 14.05.2014 entered between the parties.  As per this agreement owners (complainants’) allocation is entire second floor of the proposed project and the entire ground floor area, except one car parking space, which is allotted to Developer (OP1), including proportionate share in land as well as common facilities and amenities of the building on the said property.  The Developer’s (OP-1’s) allocation is entire 1^st floor of the proposed project, with one car parking space in the ground floor, including proportionate share in the land and common facilities and amenities of the building on the said property. 

8.       The agreement further provides that developer has represented to the owners  that during the sanction of the proposed building maximum F.A.R. shall be consumed to get the best possible total area as per sanction of the Kolkata Municipal Corporation (KMC).  It further stipulated that “If the authority of the Kolkata Municipal Corporations allows to construct room as per Kolkata Municipal Corporations rules (i.e. 15% of the total FAR) on the top of the roof after getting Completion Certificate, then the developer will invest to construct the said additional area and shall get the 50% amount of the of the selling price of the same additional area AND the owner will get the rest 50% amount of the selling price of the same additional area. In such case the Developer shall also pay a further sum of Rs.2,00,000/- (Rupees two lakhs) to the Land Owners / First Part herein as per the forfeited amount.” While the OPs are not disputing the above stated provision of the agreement, they contend that complainants are not entitled to 50% of the sale value of any additional area to be constructed by the OPs since as per development agreement dated 14.05.2014, the complainants are only entitled to get 50% of the sale value only if the OPs construct additional floor only after obtaining the completion certificate from the KMC.  In the instant case, OPs have constructed nothing after obtaining the completion certificate from the KCM.   This in our view is a totally wrong interpretation of the above said development agreement and goes against the spirit of the said agreement.  The intention of the parties was clearly to equally share the benefits if KMC allows additional construction.  Whether such additional construction was done before or after the obtaining of completion certificate from the KMC cannot and should not alter the rights of the owners (complainants) under the agreement.  The developer (OP1) by timing the additional construction before obtaining completion certificate from KMC, cannot circumvent the real purport and spirit of the agreement and unduly enrich himself by appropriating 100% benefit of such additional construction to himself.  Hence, we have no doubt that in view of the clear provisions of the development agreement, developer (OP-1) is bound to give 50% of the sale price of such additional construction to the owners (complainants).  Hence, rejecting the contentions of the OPs in this regard, we find that, in accordance with this prayer, complainants are entitled to Rs.37.50 lakh, along with Rs.2.00 lakh along with interest from the date such amount become due, i.e. the date of sale of such additional area.

9.       As regards status of open terrace area, as per development agreement, the salable space “mean the space in the building available for independent use and occupation after making due provisions for common facilities and the space required therefore and also owner’s allocations.”  In the absence of any specific clause(s) in the agreement about the open terrace area, we are in agreement with the contentions of the complainants that open terrace/roof is for common use and no occupier should have any exclusive right over it.  Hence, the action of developer/OP-1 in selling the open terrace/roof area is not valid.  OP has not placed on record any evidence in support of his contention that he is entitled to sell the open terrace. In fact, to this evidence/written version, OP has not given a specific response on this point.  The agreement clearly states that the developer shall paint the owner’s flat at their own (developer’s) cost.  The developer has not disputed this obligation of his as per development agreement, but contends that they have already painted the land-owner’s allocation, which is denied by the complainants, stating that only outside building has been painted, inside of their allocation has not been painted.  In our view, the development agreement envisages painting of entire area of owner/complainant’s allocation, both inside as well as outside, hence OPs are under obligation to paint the entire area of owner’s/complainant’s allocation. 

10.     As regards contention of the OP about maintainability of the complaint, we are of the view that OP has provided deficient services and indulged into unfair trade practice by not faithfully implementing the provisions of the development agreement entered into with the complainants.  They are a service provider and hence complainants are consumers and the complaint is maintainable.  Complainants have correctly made reliance on the judgment of Hon’ble Supreme Court in Faqir Chand Gulati (supra) and hence has right to approach the Consumer Fora. Contentions of OP for non-maintainable on account of not making other occupiers of building is not tenable.  This complaint is not filed in a representative capacity but in an independent capacity.  Relief sought under prayer(c) with respect to open terrace affecting the interest of complainants as one the owners, these being common use areas.

11.     For the reasons stated hereinabove, and after giving a thoughtful consideration to the entire facts and circumstances of the case, various pleas raised by the learned Counsel for the Parties, the Consumer Complaint is allowed/disposed off with the following directions/reliefs: -

1. OPs shall, within three months of date of this order, pay an amount of Rs.37,50,000/- along with simple interest @ 9% p.a. with effect from date of sale of additional area on the 3^rd floor till the date of actual payment.

2. The open terrace area/roof shall be treated as common area, for use by all the occupants.  OPs shall have no right to sell such area.

3. OPs shall, within 3 months of date of this order, paint the inside of the complainants’ allocation area or alternatively, at his (OP’s) option, pay an amount of Rs.2.00 lakh to the complainants to enable them to get their area painted by themselves.

4. OPs shall pay Rs.30,000/- as litigation costs to the complainants.

5. Liabilities of OPs shall be joint and several. 

12.     The pending IAs, in any of the Consumer Complaints, if any, also stand disposed off.