SAMIKSHA BHATTACHARYA, MEMBER
The instant Appeal has been directed by the Appellant under Section 15 of CP Act, 1986 challenging the final order/judgment dated 10th December, 2018 passed by the Ld. District Commission, Kolkata Unit-I (North) in complaint case No. CC/340/2017.
The Ld. District Commission passed this order which is reproduced hereinunder:
“That the CC No. 340/2017 is allowed on contest with cost against the OP No. 1 and allowed ex parte without cost against the OPs. The OPs are jointly and/or severally directed to hand over the possession and execute and register the deed of conveyance in respect of the flat in favour of the complainants after payment of the balance amount of Rs.2,70,000/- (Rupees two lakhs seventy thousand) only to OP No. 1 after adjustment of the amount of Rs.2,05,000/- (Rupees two lakhs five thousand) only and the OP No. 1 is directed to pay to the complainants compensation of Rs.5,000/- (Rupees five thousand) only within 30 (thirty) days from the date of communication of this order, i.d., an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.”
The facts of the case, in brief, are that the respondent/complainant No. 1 Smt. Shipra Sarkar (hereinafter referred to as ‘Complainant No. 1’) was a tenant in respect of one room together with common bath and privy on the ground floor at Premises No. 5/1A, S.K. Sarbadhikari Lane, Kolkata-700010, at a monthly rent of Rs.70/- (Rupees Seventy) only payable according to English Calendar month under the opposite parties No. 2 to 6 and was residing there with her other family members.
Respondents No. 3 to 7/OPs No. 2 to 6 (hereinafter referred to as ‘OPs No.2 to 6’) decided to construct the multi-storied building by demolishing the existing structure at the premises No. 5/1A, S.K. Sarbadhikari Lane, Kolkata-700010.
Accordingly, the OPs No. 2 to 6/landowners entered into a development agreement on 18.12.2013 with the OP No. 1/appellant (hereinafter referred to as ‘OP No. 1’) to develop the said property. The land-owners also appointed the developer as their constituted attorney by executing a power of attorney on the same date i.e., on 18.12.2013. After obtaining the power of attorney, the OP No. 1 obtained a building plan from the KMC in Plan being No. 2014030094 dated 08.01.2015. Thereafter, all the OPs requested the complainants, namely, Smt. Shipra Sarkar/Respondant No. 1 / complainant No. 1/ (hereinafter referred to as ‘complainant no. 1’) and Sri Sanjib Sarkar/Respondent No. 2/complainant No. 2 (hereinafter referred to as ‘complainant No. 2’) to vacate their occupied room in the said premises for a considerable period to construct the multi-storied building thereon and proposed the complainants to hand over a self-contained flat on the ground floor of the newly constructed building at the premises in question at a consideration. After long discussion, the complainants agreed to the proposal of the OPs and accordingly both the parties entered into an agreement for sale on 16.11.2015. As per terms and conditions of the said agreement OP No. 1 was agreed to transfer a self-contained flat on the ground floor of the newly constructed building measuring about 220 sq. ft. carpet area corresponding to 240 sq. ft. covered area as per plan annexed with the said agreement at a consideration of Rs.5,26,000/- within 18 months from the date of execution of the agreement. The complainants were also entitled to get shifting charges and temporary accommodation charges at the rate Rs.5,000/- only per month till 18 months from the date of execution of the agreement for sale and if the OP No. 1 fails to hand over the possession within the stipulated time then the developer / OP No. 1 would be liable to pay compensation at the rate of Rs.5,000/- per month to the complainants for delay. But the OP No. 1 failed and neglected to pay the same. On enquiry the complainants came to know that no completion certificate has yet been issued by the KMC Authority in respect of the said newly constructed building at the preemies in question. The complainants repeatedly requested the OPs to complete the said flat as per terms of the agreement and planannexed thereto and to hand over the same upon execution and registration of the deed of conveyance. But the OPs did not pay any heed. The complainants requested the OP No. 1 through several letters and correspondences. But the OPs, instead of completing the construction of the flats as per agreement and plans annexed therewith put undue pressure upon the complainants by sending letters to the complainants to take possession of the flats in question which causes serious harassment to the complainants.
Finding no other alternative, the complainants have filedthe petition of complaint before the Ld. District Commission concerned praying for direction upon the OPs to comply with the terms and conditions of the agreement for sale dated 16.11.2015 to provide completion certificate so granted by the KMC, to complete the construction work of the flat in question as per sale agreement dated 16.11.2015 and the plan annexed thereto, to execute and register the appropriate deed of conveyance in favour of the complainants in respect of the flat in question along with compensation of Rs.5,60,000/- as set forth in Paragraph No. 16 of the petition of complaint and to pass further order/orders as the Commission may deem fit and proper.
The OP No. 1/developer filed the written version to contest the case before the Ld. District Commission. In their written version, OP No. 1 has stated that there is no cause of action against the OP No. 1. He is not responsible for any act of shortcomings and/or deficiency. The complaint is time barred and there is no application for condonation of delay under Section 24A of CP Act, 1986. The OP No. 1 has stated in his written version that the complainant No. 1was the only tenant and the complainant No. 2, being the son of the complainant No. 1, has been wrongly added as a party who has no locus standi to be a party in the case. The complainant No. 2 namely, Sanjib Sarkar took an advantage of the situation when the OP No. 1 started construction work in the building for providing the shelter to the flat owners from whom he booked the flat. In every stage of construction the said complainant No. 2 interfered and prevented the development work of the building and twisted the agreement by conversion of the flat to different shapes which are not in accordance with the sanctioned building plan of KMC thereby causing deviation. The complainant No. 2, in the process and progress of construction,has changed the character of the flat which is beyond the sanctioned plan.
The basic plan cannot be changed/altered by opening another front/entrance as per sweet will and desire of the complainant No. 2. There are two agreements for sale dated 11.03.2015 and 16.11.2015 which are different and contradictory. There are three revised plans and the original site plan does not tally with the Registered agreement for sale. There is deviation from the sanctioned plan of the KMC and the registered agreement for sale which was duly signed. On the persistent demand and instance of the complainant No. 2, revised plan was submitted as per Municipal Act and Norms. The room of the complainant no. 2 has been converted to kitchen and toilet. Originally kitchen was not in the principal/main plan which was revised due to the fault of the complainant No. 2. The several discrepancies occurred and caused due to the erratic and pressure tactics of the complainant No. 2. Other all allegations mentioned in the complaint petition are denied by OP No. 1. The loss and sufferings to the tune of Rs.10,80,000/- is imaginary and frivolous, motivated and exaggerated and cannot be adjudicated by the Ld. District Commission. Though there is an agreement for sale the complainants have not paid any amount to be termed as ‘consumers’. Therefore, the complainants are not ‘consumers’ within the meaning and ambit of CP Act, 1986. Hence, OP No. 1 has prayed for dismissal of the complaint case since no consideration has been paid by the complainants to be ‘consumers’ which is void in the eye of law and for the equity of justice.
The Ld. District Commission allowed the complaint case which is mentioned in the first portion of this judgement.
Being aggrieved by and dissatisfied with the above order, the appellant/OP No. 1 filed the instant appeal on the ground that the Ld. District Commission is totally misconceived and it has made erroneous order to the detriment of the OP No. 1 and such order is liable to be set aside. The Ld. District Commission has erred both in law and facts and/or order was passed arbitrarily. The order suffers from incongruity and with some anomalies and such order is liable to be set aside. The District Commission was wrong in holding that the OP No. 1 is deficient. The part of job to be performed by the complainants also suffers from negligence and deficiency on their part. The order was passed whimsically and mechanically. The Ld. DCDRC has committed blunder in calculating the payment structure to be made by the complainants. Therefore, appellant has prayed for quashing/cancelling and/or modifying the order/judgment passed by the Ld. District Commission dated 10.02.2018
On the date of final hearing, the Ld. Advocate for the OP No. 1 was present but did not file any BNA. Since several adjournments were granted the appeal was taken up for final hearing.
The Ld. Advocate for the complainants has submitted that since there was irregularity in the order, the complainants have also filed another Appeal being No. A/422/2019 for enhancement of the amount payable by OP No.1 as alternative accommodation charge and compensation. Other part of the order is correct and need not to be altered.
Upon hearing the Ld. Advocate of the complainants and on perusal of the entire materials on record we find that one agreement for sale of a flat was entered by and between both the complainants/purchasers, OP No. 1/developer and the other OPs/land-owners of the land upon which the multi storied building was erected. Therefore, the plea taken in the written version by OP No. 1 that complainant No. 1 was only the tenant and complainant No. 2 being the son of complainant No. 1 has been wrongly stated to mislead the Commission. Since the complainant No. 1 and complainant No. 2 both entered into the agreement for sale both are the complainants.
Now the another plea taken by the OP No. 1 is that the complainants shall have to pay a sum of Rs.5,26,000/- being the cost of construction of the flat to the developer and that amount is still date. But it appears to us from Clause No. 3 of Agreement for sale that the purchaser already paid Rs.5000/- as earnest money and shall pay the balance amount at the time of execution of the deed of conveyance in favour of purchasers/complainants when the sale deed would be executed by both the owners and developers. Therefore, the allegation on behalf of OP No. 1 that the complainants have not paid the consideration is not true since the execution and registration of the deed of conveyance is still pending. Therefore, the complainants are ‘consumers’as per Section 2(1)(d) of CP Act, 1986 since the complainants have promised to pay at the time of execution and registration of the flat in question and already paid earnest money of Rs.5000/-. Moreover, the complainants entered into the agreement for sale in lieu of vacating their tenanted portion which can be termed as ‘consideration’. Therefore, the plea taken by the OP No. 1 that the complainants have not paid anything is not correct.
In their written version, OP No. 1 has mainly alleged that complainant No. 2 took an advantage of the situation when the OP No. 1 started construction work and in every stage of construction the complainant No. 2 interfered and prevented the development work and twisted the agreement. This allegation also cannot be tenable in the eye of law since no complaint has been lodged by the developer against the complainant No. 2. As per Clause No. 8 of the Agreement for Sale dated 16.11.2015, the developer shall provide temporary accommodation for the residence of said Sipra Sarkar/complainant No. 1 and shall pay the rent of Rs.5,000/- per month for the temporary accommodation till the developer hand over peaceful vacant possession of the said self-contained flat in question. But the developer has paid only Rs65,000/- out of which Rs.5,000/- in cash for one month rent amount and Rs.60,000/- through cheque being No. 117643 dated 01.11.2015 drawn on West Bengal State Co-operative Bank Limited. The complainants have acknowledged the same by their letter dated 06.05.2017. The OP has issued a letter dated 24.05.2017 wherefrom it appears that they had paid Rs.60,000/- in cash apart from above-mentioned Rs.65,000/- but OP No. 1 has not filed any document/receipt towards payment of Rs.60,000/0- in cash to the complainants therefore, it cannot be accepted that the OP No. 1 has paid Rs.60,000/- in cash without taking any acknowledgement from the complainant at the time of payment of Rs.60,000/- in cash. As per Clause No. 5 of Agreement of Sale, the stipulated period for delivery of the possession of the flat was 18 months from the date of agreement but till date the OPs have not delivered the possession of the flat to the complainants. Therefore, as per the Clause No. 9 of Agreement for Sale dated 16th November, 2015 entered by and between the parties, the developers shall be bound to pay further a sum of Rs.5,000/- per month to the said purchasers as compensation for the delayed period.
The OP No. 1 has also stated that there are two agreements for sale dated 11.03.2015 and 16.11.2015. But with the memo of appeal, the OP No. 1 has annexed the agreement for sale dated 16.11.2015 only. No agreement for sale dated 11.03.2015 has been annexed with the memo of appeal.
From the letter dated 25.07.2017, it appears that the OP No. 1 informed the complainants that the possession of the flat would be delivered to the complainants within August, 2017. By the letter dated 26.08.2017 OP No. 1 informed that the site plan annexed with the letter dated 25.07.2017 is conclusive. Though the OP No. 1 issued the paper possession letter the physical delivery of possession is still due. Since the delivery of the possession of the flat and its execution and registration is due till date the OP No. 1 will be bound to pay Rs.5000/- per month to the complainants till the delivery of possession from the date of agreement of sale except Rs.65,000/- which has been paid by the OP No. 1 to the complainants.
From the documents, it appears that the OP No. 1 has paid Rs.65,000/- towards charge of temporary accommodation as per Clause No. 5 of agreement for sale dated 16.11.2015. OP No. 1 has paid Rs.65,000/-, that means OP No. 1 has paid already the monthly accommodation charge at the rate of Rs.5,000/- per month for thirteen months. Therefofe, the OP has paid the temporary accommodation charge up to 15th December, 2016 as per Agrement for Sale dated 16.11.2015. Therefore, the OP No. 1 is liable to pay the temporary accommodation of charge at the rate of Rs. 5,000/- per month from 16th December, 2016 till the actual date of delivery of possession of the flat in question to the complainants.
On the other hand, as per clause No. 3 the complainants have already paid Rs.5,000/- towards total consideration of Rs.5,26,000/-. The balance amount of Rs.5,21,000/- would be paid at the time of the execution and registration of the flat in question in favour of the complainants.
In view of above, we find there is irregularity in the impugned order in terms of payment structure in the final order since the balance amount of Rs.2,70,000/- and the adjustment of Rs.2,05,000/- was ordered without any valid observation which should be modified.
Therefore, the following part of the order dated 10.12.2018 should be modified:
“the OPs are jointly and/or severally directed to hand over the possession and execute and register the deed of conveyance in respect of the flat in favour of the complainants after payment of the balance amount of Rs.2,70,000/- (Rupees two lakhs seventy thousand) only to OP No. 1 after adjustment of the amount of Rs.2,05,000/- (Rupees two lakhs five thousand) only.”
In view of above discussion, the order of the Ld. District Commission is, thus, modified to the following extent :
The OPs are jointly and/or severally directed to hand over the possession and execute and register the deed of conveyance in respect of the flat in favour of the complainants upon payment of Rs.5,21,000/- (Rupees five lakh twenty-one thousand) only by the complainants within 60 (sixty) days hereof and the OP No. 1 is directed to pay the balance amount towards temporary accommodation @ Rs.5,000/- (Rupees five thousand) only per month from 16.12.2016 till the actual date of delivery of physical possession of the flat to the complainants. The cost of registration shall be borne by the complainants.
Other parts of the order remains unaltered.
Thus, the instant Appeal being No. A/88/2019 is disposed of accordingly.
Let a copy of this order be supplied to the Ld. DCDRC, Kolkata-I (North) at once.
