Shri Partha Kumar Basu, Hon’ble Member

The instant case is filed as a Complaint Case u/s 12 of the Consumer Protection Act by Smt. Rina Daw of Garia, Kolkata – 700 084, one of the legal heirs of landlady, against the builder brothers Sri Amit Kumar and Sri Ashish Kumar and Smt. Mousumi Kumar w/o Sri Amit Kumar, all of whom are Directors of MaaPlaza Pvt. Ltd., Narendrapur, Kolkata – 700 084.

The case of the complainant in gist is that the complainant’s mother (since deceased) purchased a land and entered into a development agreement on 25.12.2002 with the OPs. Sanctioned plan dated 01.01.2004 was obtained thereafter. As per the agreement, the owner is entitled for 1200 Sq.ft. of total sanctioned FAR (floor area ratio) on the 1^st floor comprising of one 900 sq. ft flat and one 300 Sq.ft. flat on super built up (henceforth known as SBU) area basis as per Schedule B on account of owners allocation, the balance being the developers allocation. As per said agreement, the developer was required to hand over owner’s allocation at first and then only developer can sell their allocation to the buyers. The owner’s allocation was to be handed over and delivered within 42 months of the sanctioned plan dated 01.01.2004 i.e. by 01.07.2007.  But the developers failed to comply with till now as it was alleged. The owner of the land Smt. Uma Mukherjee who is the mother of the complainant died intestate on 06.11.2006 leaving behind her 2 daughters namely Smt. Rina Daw i.e. the complainant and her sister Smt. Krishna Banerjee as her only legal heirs / successors as per Hindu Secession Act.  The OP builder thereafter executed a registered deed of conveyance on 05.08.2016 in favour of the Krishna Banerjee, complainant’s sister and her son Sri Soumik Banerjee in respect of a 825 Sq.ft flat, out of which 600 Sq.ft. on account of the owner’s part allocation and another Rs.9,50,000/- was paid by them for the extra area measuring 225 Sq.ft and a deed was registered accordingly by delivering possession. But no delivery possession was given to the complainant by the OP inspite of repeated requests. Hence the case. In the amended complaint petition dated 29.07.2022 the plaint was amended to the extent that in case the owner’s allocation, if the same is not handed over after observing due course of law then the OPs may be directed to make payment of the price of the owner’s allocation based on the prevalent market value. The suit property is valued at Rs. 18,82,000/- as per complaint petition on affidavit. The complainant prayed for a direction on the OPs to hand over her owner’s allocation along with possession letter, Certificate of Completion, compensation of Rs.50,000/-for causing mental agony and a cost of Rs.50,000/-. 

In support of her case the complainant filed copies of land title documents (pg 9-24), evidence on affidavit, joint development agreement dated 25.12.2002 ( pg 25-39), municipal plan (page 40), death certificate dated 06.11.2006, legal notice dated 12.08.2021 (pg 44-46), Market valuation document of 600 Sft. area SBU as Rs. 17,82,000/- (pg.51- 55), deed query dated 05.08.20216 (pg 54-55) for suit property and other miscellaneous papers as exhibited therein in the case records. 

The OP-1 appeared and contested the case by filing W.V. The OP-2 and OP-3 were expunged as per Order No.9 dated 07.07.2022 and the cause title was amended accordingly. 

The OP1 contested and challenged the maintainability of the case.  They resisted stating that the land owner Smt. Uma Mukherjee entered into a joint Development Agreement dated 25.12.2002 for construction of a multi storied building on her said piece of land when the developer got the sanctioned plan for the G+3 Building on 01.01.2004. As per the said Development agreement, the owner’a allocation was fr a 1200 Sq.ft. flat on the 1^st floor consisting of one flat of 900 Sq.ft. and other flat of 300 Sq.ft on super built up area basis. After completion of the construction the deceased land owner had intimated OP1 that the bigger flat of 900 Sq.ft. would be taken by her along with her daughter Krishna Banerjee and the smaller flat of 300 sq.ft to be allocated to the other daughter Smt. Rina Daw, the complainant herein.  Further during her life time by a letter dated 29.05.2005 the said Uma Mukherjee requested the OP developer for allotment of her entitlement at another upcoming project namely Mousumi Apartment Phase II – III situated at 314 Tentulberia Road, Garia, Kolkata 7000084 situated at a different location against exchange of the flats at existing location at the owners’ land.  Accordingly, based on the letter dated 29.05.2005 of the landowner, the developer company accepted onward booking from the buyers of this for the owners allocation and accordingly sold / transferred the same. In the meantime, when Uma Mukherjee died in 2006, the OP builder delivered the possession for the owners’ allocation on exchange basis at new location for an area of 825 Sq.ft. super built up area on the first floor to Krishna Banerjee, though she was entitled to get only 600 sq.ft and the flat being impartible, hence after adjustment thereof with the prevailing market rate and after getting payment of balance consideration money for the excess area, the deed of conveyance was executed accordingly.  Post delivery of the possession to Krishna Banerjee, the balance left over place was allotted to Rina Daw. However, Rina Daw did not take the possession of the allotted area.  Accordingly, the promoters agreed to pay Rs.4,00,000/- as per prevailing market rate as full and final settlement in lieu of entitlement of the owner’s allocation of Rina Daw which she agreed. Though the builder paid Rs.2,00,000/- on 18.10.2011 while making payment of the balance Rs.2,00,000/-, said Rina Daw refused to sign  the agreement as a matter of full and final settlement.  It appeared to the developer that the complainant Rina Daw is demanding more than the agreed amount of Rs.4,00,000/- before signing the agreement. On 12.08.2021 Rina Daw sent legal notice demanding delivery of possession of owner’s allocation to which the developer replied on 16.08.2021.The developer further contends that the complainant files the case after long silence of 10 years for wrongful gain and denied all other charges as alleged.

Alongwith their evidence, the OP1 exhibited documents like agreement of shifting dated 10.03.2003 executed between Krishna Mukherjee and signed by Uma Mukherjee and Rina Mukherjee and Krishna Banerjee (Annx C- 3 pages), one illegible unsigned undated letter promising to execute agreement about Mousumi Apartment in continuation to development agreement dated 25.12.2002S, bank statement showing payment of Rs. 2,00,000/- to complainant and Advocate’s reply from OP dated 16.08.2021.   

Considered the submission made by the Ld. Advocates of both sides and scrutinized the materials on record.

After having received notice about the complaint, the OP1 filed written version to contest the case. It has been contended therein that the instant complaint is not maintainable. But no ground is mentioned thereof. Land owners do fall under the definition of 'Consumer' under the Consumer Protection Act as per settled principle of law and also relying upon the Judgment passed by the Hon'ble Supreme Court in 'Faqir Chand vs. Uppal Agencies Private Limited' [(2008) 10 SCC 345] and 'Bunga Daniel Babu. In the instant complaint case, the complainant is a consumer and the developer is a service provider as per detailed conditions mentioned in the sale agreement dated 25.12.2002. Also this commission is having both pecuniary and territorial jurisdiction and being landowner’s legal heir, the complainant is covered under the definition of a consumer u/s 2(1) as per the Consumer Protection Act 2019. There is no sustainable ground of deviation for not being the instant case maintainable on account of geographical or pecuniary jurisdiction or whatsoever, since all are well within the ambit and jurisdiction of this district commission. Hence this complaint petition is quite maintainable.

On perusal of the petition of the complainant and the evidences on record, it transpires that the landlady opted to get services of the OPs, when the OPs were going to construct a G+ 3 storied house comprising of flats. It also transpires from records and evidences that the landlady (since expired) and the OPs entered into an agreement on 25.12.2002 and by the said agreement the landlady became entitled for 1200 Sqft (SBU) area on the first floor. But there was a proposal for shifting of the allotted location, subsequently, after execution of the said agreement. Further, the landlady Smt. Uma Mukherjee died intestate on 06.11.2006 leaving behind her 2 daughters Rina Daw i.e. the complainant and her sister Krishna Banerjee as her only legal heirs / successors as per Hindu Secession Act. As per the definition as mentioned in the Sl (1) of the page (2) of the development agreement dated 10.03.2003it is held that :-

“Owner shall mean the owners above named and their respective heirs, executors, administrators, legal representatives and / or assigns”

In compliance the builder paid an amount of Rs.2,00,000/- to the complainant as part payment as per bank statements. It is not in dispute that the OP has paid the said amount but the dispute centres around the OP ’s claim about their claim of a decided amount as total price of Rs. 4,00,000/- payable to the complainant as her share being one of the legal heirs. There is no record which lends support to this contention of OP1 neither any trace of agreed terms was exhibited as claimed except evidence of OP1 on affidavit which does not carry much of evidentiary value in absence of any supportive document. Further, the contention of the OP1 developer that upon completion of the construction, the deceased land owner intimated OP1 having the bigger flat of 900 Sq.ft. be taken away by her along with her daughter Krishna Banerjee and the smaller flat of 300 sq.ft be allocated to the other daughter Smt. Rina Daw i.e. the complainant herein, is not supported by any bonafide document. Also when Uma Mukherjee died in 2006, the OP builder delivered the possession of the owner’s allocation on exchange basis at new location to one of the 2 legal heirs Krishna Banerjee on her 50% share out for an area of 825 Sq.ft. (SBU) area on the first floor against her legitimate entitlement of 600 sq.ft (SBU) and the cost of the excess area of 225 Sq.ft (SBU) was recovered for a consideration price of Rs. 9,50,000/- as per  deed of conveyance dated 05.08.2016. But the deliver possession by the OP1 builder for the balance 50% of owner’s allocation for 600 Sq.ft, out of a total agreed quantum of 1200 Sq.ft as per joint development agreement dated 25.12.2002 towards the other co-sharer cum legal heir Rina Daw remained undelivered as of now.

Therefore delivering the possession of an area equivalent to 600 Sq.ft (SBU) that the complainant is entitled to as one of the 2 legal heirs of the deceased landlady who died intestate, remains pending. No other cogent evidence has been exhibited in support of the claim about arrangement between the legal heir cum complainant about her part of share that was allotted by OP1 developer in terms of the said joint development agreement. Neither the OP exhibited even a scrap of document about any agreed terms amongst both sides wherein the complainant cum legal heir of the deceased landlady was a party to it. The arrangements made between the OP1 developer and any third party or any other legal heir of the deceased landlady can not be binding on extant legal heir cum complainant unless proven otherwise. Mere advancing Rs 2,00,000/- lac to the legitimate legal heir and forcing her to sign supplementary agreement for a total consideration money of Rs 4,00,000/- without formation of any basis can not be accepted as a term of full and final settlement to discharge the liabilities of the service providers under the scopes and meaning of the Consumer Protection Act 2019. It is also noted that when Rs. 9,50,000/- was realised by the OP1 for a constructed area of 225 Sq.ft. form one of the legal heirs, then the effort of the OP1 builder to discharge their obligation by paying only Rs.4,00,000/- for a constructed area of 600 Sq.ft to the other legal heir is a disproportionate logic on the existing factum and not a bonafide proposition, apart from the fact about the current market valuation being of Rs. 18,82,000/-. So the OP1 developer is liable for handing over the left over owner’s allocation or alternatively the cost of the damage thereof after adjusting the amount already advance for 2,00,000/- against the prevailing market valuation amount of Rs 18,82,000/-.

Also regarding the above said disputes on delay on the part of the builder, the Hon’ble Supreme Court in Fortune Infrastructure &Anr. v. Trevor D’Lima&Ors., (2018) 5 SCC 442, held that a person cannot be made to wait indefinitely for possession of the property allotted to him/her and is entitled to seek return or relief along with compensation. From the joint development agreement dated 25.12.2002, it appears that the OP1 developer has entered into a joint development agreement as developer. So the OP1 is bound to comply with the terms and conditions of the said agreement and liable for the deficiency in services. The allegation of OP1 about delay in making complaint case is also not sustainable as there is a continuous cause of action persisting in this matter of a housing dispute.

The Consumer Protection Act is a law of torts when a tort is a civil wrong, which causes damage and results in legal liability for negligence or tortuous intent. If the claimant is able to prove that the tort occurred and that the defendant was responsible, then defendant is liable to compensate the damage. During adjudication in the case in hand, it got unfolded that the suit property has already been alienated to third party which is the admitted position of both the sides. Hence there is no other remedy available to the petitioner before this commission except to seek compensation, cost or refund.

So the complaint case succeeds in part.

Hence, it is

                                                                                         ORDERED

That the instant case be and the same is hereby allowed on contest against the OP1 developer with costs.

1. The OP1 developer is liable and is directed to make payment of an amount of Rs. 16,82,000/-  (Rupees Sixteen Lac Eighty Two Thousand) only to the complaianant.
2. The OP1 developer is also directed to pay a simple interest @ 6% per annum on Rs. 16,82,000/-  since 18.10.2011 till the date of final realization thereof,
3. The OP1 developer is liable and also directed to pay the litigation cost of Rs. 10,000/-(Rupees ten thousand) only.

The entire decreetal amounts as per Serial 1, 2 and 3 above are to be paid within 60 days from the date of passing of this Order, in default a simple interest @ 12% will accrue till realisation.

Interim order, absolute or extended be any before this bench, stands vacated.

The complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied by the OP1 within 60 days from the date of passing of this Order.

Let a copy of the order be sent / supplied free of cost to the parties concerned.

The Final Order will be available in the website www.confonet.nic.in