Date of Filing – 01.09.2015

Date of Hearing – 11.05.2017

            The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of Opposite Party No.1/developer to assail the Order no.32 dated 28.07.2015 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint no. 251/2015.  By its order, the Ld. District Forum allowed the complaint on contest against OP no.1/Appellant and ex parte against the landowners with direction upon the opposite parties to rectify the approved plan of Kolkata Municipal Corporation as per tripartite agreement and further directed the OP no.1/Appellant to pay full amount of rent of the flat where the Respondent no.1/Complainant is residing since July, 2008 and to provide the flat to the complainant in the 1^st floor as per Tripartite Agreement, to pay compensation of Rs.60,000/- and litigation cost of Rs.10,000/-.

          The Respondent no.1 herein being Complainant initiated the complaint under Section 12 of the Act stating that she was a monthly tenant and has been residing along with his son and daughter in a portion measuring about 480 sq. ft. carpet area more or less on the ground floor at Premises No.3A, Gopal Banerjee Street, P.S.- Bhawanipore, Kolkata – 700025 at a rental of Rs.830/- per month and has been depositing the rent in the Office of Rent Controller, Kolkata.  The opposite party nos. 2 to 4 being land owners entered into a Development Agreement with the OP no.1 for construction of a multi-storied building in the said premises after demolishing the existing one.  It was agreed that the complainant being tenant will cooperate with the owners and developer for construction of the new building to be constructed as per sanctioned plan to be obtained by the owner/developer from the KMC and in consideration of such cooperation, the owner/developer agreed to provide the complainant one self-contained flat measuring more or less 380 sq. ft. carpet area in the 1^st floor at a price of Rs.1,500/- per sq. ft.  Being approached by the owner/developer, the complainant agreed to vacate the existing tenanted portion and for which the developer agreed to pay an amount of Rs.2,500/- only per month for the 18 months.  On 04.07.2008, the developer duly took possession but failed to deliver possession within 24 months from the date of execution of the Agreement i.e. 04.05.2008.  It was also agreed that if the developer failed to reinstate the tenant in the new building within the time stipulated, the owners and developers shall be liable to pay Rs.22,00,000/-.  The complainant submits that times without number he approached the developer to provide possession but it remain unheeded.  Hence, the Respondent no.1 approached the Ld. District Forum on the allegation of deficiency in services on the part of developer and landowner.

          The Appellant being OP no.1 by filing a written version has stated that the Agreement dated 04.05.2008 stipulates that OP no.1 would provide a flat to the complainant and in default OP no.1 would pay Rs.22,00,000/- to the complainant in lieu of the flat in question.  The OP no.1 has also stated that the complainant has defaulted in payment of the amount as per terms of the agreement and as such the complaint should be dismissed. 

          The Respondent nos. 2 to 4 being Opposite Party nos. 2 to 4 did not contest.

          After evaluation of materials on record, the Ld. District Forum by the impugned order allowed the complaint with the direction upon the OPs as indicated above.  Challenging the said order, the OP no.1/developer has come up in this Commission with the present appeal.

          Mr. Prasanta Banerjee, Ld. Advocate for the Appellant has drawn my attention to Paragraph-12 of the Agreement dated 04.05.2008 between the parties and submitted that when within 24 months from the date of agreement, the terms of the agreement in respect of handing over possession could not be implemented, the owners and developers are liable to pay Rs.22,00,000/- to the tenant/Respondent no.1 as consolidated damage and as per contents of the said Paragraph, the tenant will be entitled to sue for specific performance of contract.  Mr. Banerjee has further submitted that the mode of payment as mentioned in Paragraph-14 of the Agreement has not been complied with by the Respondent no.1 and as such being defaulter, the Respondent no.1 cannot maintain a consumer complaint and as such the Ld. District Forum should have dismissed the complaint.  He has finally submitted that the developer is ready and willing to make payment of Rs.22,00,000/- in no time if any such order is made.

          Mr. B.B. De, Ld. Advocate for the Respondent no.1, on the other hand has contended that as per Agreement, the developer/landowners are under obligation to provide a flat measuring about 380 sq. ft. on the 1^st floor and since the tenancy was termed as consideration, the developer is bound to provide a flat as per terms of the agreement.  He has further submitted that the developer never informed Respondent no.1 about the progress of the construction and as such question of making payment in accordance with Paragraph-14 of the Tripartite Agreement dated 04.05.2008 shall have no application.  Ld. Advocate for the Respondent no.1 has also drawn my attention to a decision of Hon’ble National Consumer Commission dated 24.04.2012 in RP Nos. 2589-2590/2008 (Jagdishbhai – vs. – Surbhaih Realtors India Pvt. Ltd. & Anr.) wherein it has been observed that when a tenant hands over the property on the basis of an agreement relying on the promise that the builder would handover a portion of the property in lieu of handing over the possession, the same would be termed as consideration paid by the petitioner to the Respondent. 

          Seen the materials on record and considered the submission advanced by the Ld. Advocates appearing for the parties.

          Undisputedly, Respondent no.1 was a tenant under the Respondent nos. 2 to 4 in respect of a portion measuring about 480 sq. ft. on the ground floor at Premises No.3A, Gopal Banerjee Street, P.S.- Bhawanipore, Kolkata – 700025 at a rental of Rs.830/- per month and has been depositing the rent in the Office of Rent Controller, Kolkata.  It also remains undisputed that on 16.12.2005 the landlords entered into an agreement with the developer for construction of a multi-storied building in the said premises after demolition of the existing one.  Accordingly, both the landlords and developer entered into an agreement with the Respondent no.1/tenant on 04.05.2008 and in accordance with the said agreement, they agreed to provide a self-contained flat measuring more or less 380 sq. ft. carpet area on the 1^st floor of the said premises at a consideration of Rs.1,500/- per sq. ft.  It was also agreed that in order to facilitate the construction of the new building, the Respondent no.1 will stay elsewhere for which the developer will bear expenses of Rs.2,500/- per month for 18 months.  It also remains undisputed that on 04.07.2008, the developer took possession of the tenanted portion of the Respondent no.1.

          The fact remains that in accordance with the terms of the agreement dated 04.05.2008, the Respondent no.1/tenant has not been provided the subject flat within 24 months as stipulated.  In this regard, the appellant/developer has contended that the Respondent no.1 has failed to make payment as per contents of Paragraph-14 of the Tripartite Agreement.  In accordance with the terms of Paragraph-14, the parties had agreed to register the Sale Agreement at the cost of the tenant on payment as follows –

1.  @ 50% of the cost of flat as an advance within 30/60 days of receipt of sanctioned plan from KMC;
2.  First instalment @ 20% of the cost of the flat after 1^st floor slab casting;
3.  2^nd instalment @ 20% of the cost of flat after top roof slab casting;
4.  3^rd and final instalment @ 10% of the cost of flat at the time of sale.

     The Paragraph-12 of the Memorandum of Agreement stipulates as follows –

    “12.  That if the owners and developer fail to reinstate the tenant/2^nd part in the new building within the stipulated period or if for any reason the project could not be completed or abundant due to misunderstanding between the owners and the developer, or the developer left the project, or under any other circumstances, in that case the owners and the developer shall be liable to pay Rs.22,00,000/- (Rupees twenty-two lacs) to the tenant/2^nd part as consolidated damages and the tenant will be entitled to sue for specific performance of contract”.

     The Ld. District Forum while allowing the complaint has passed an order directing the opposite parties i.e. the developer and the landowners to rectify the approved plan to Kolkata Municipal Corporation as per tripartite agreement and not to construct the building and/or flat without such rectification of plan.  At the time of hearing, Ld. Advocate for the respondent no.1/complainant has candidly submitted that no such flat measuring about 380 sq. ft. is available on the 1^st floor and the respondent no.1 is ready to pay the amount of excess saleable area.  The record reveals that the respondent no.1 has not ever offer any consideration amount to the developer.  Similarly, developer also did not send any notice to the tenant asking him to make payment of the same excepting handing over the documents on the date of his appearance in the spot from her tenanted place.

     The facts and circumstances clearly go to show that a direction upon the developer for rectification of building plan and construction thereafter would be a long drawn process and it would difficult for the respondent no.1 to overcome such hurdle.  Considering the facts and circumstances, the impugned order requires some modifications.   In my humble opinion, the payment of amount of Rs.22,00,000/- as stipulated in Paragraph-12 of the Memorandum of Agreement dated 04.05.2008 will meet the ends of justice.

     For the reasons aforesaid, the impugned Order is modified to the extent that the appellant/OP no.1 (developer) shall pay Rs.22,00,000/- to the respondent no.1/complainant within 60 days from date otherwise the amount shall carry an interest @12% p.a. from the date till its realisation.  However, the amount of compensation of Rs.60,000/- and litigation cost of Rs.10,000/- imposed by the Ld. District Forum is maintained and the appellant/OP no.1 is directed to make payment of the same within a month otherwise the said amount of Rs.70,000/- shall carry interest @ 10% p.a. from the date till its realisation.  

          The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.