DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _404_ OF ___2014_
DATE OF FILING : _31.10.2014 DATE OF PASSING JUDGEMENT: 10/04/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : Sri Sumit Kumar Mitra, s/o Sri Dhirendra Mohan Mitra of 1/101, Megnath Saha Road, P.S. Dum dum, Kolkata- 74.
-VERSUS -
O.P/O.Ps : Sri Ashok Kumar Basu,s/o Sri Nirmal Kumar Basu of P-49, Bangur Avenue, Block-C, P.O Bangur Avenue, P.S Lake Town, Kolakta – 55 being the Proprietor of NEW SHELTER ,office at P-49, Bangur Avenue, Block-C, P.O Bangur Avenue, P.S Lake Town, Kolakta – 55
_______________________________________________________________________
J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainant is that complainant owned and acquired a plot of land measuring an area of 200 sq.u ft meter be the same a little more or less in plot no.01 I HIG category in Block-R at Bishnabghata Patuli area within the ambit of KMDA under the jurisdiction of Patuli P S , Corporation ward no. 110 Borough Borough XI, by virtue of lease deed dated 9.9.2008 duly registered in the office of the ADSR Alipore which was recorded in the Book no.1, Volume 69 being Deed no.3298 in the year 1998 being premises no.R1/1, Bishnabghata Patuli in peaceful possession of the said land, and desired to commercially exploit the said property and accordingly entered into the agreement for development on 3.5.2000 with the O.P in order to raise a multi storied building on the said land. Accordingly agreement for development dated 3.5.2000 was executed between the parties i.e. complainant and the O.P ,wherein complainant as the owner of the said land will be entitled to 40% of the constructed area in the proposed building along with the right, title and interest in the land underneath the said building attributed to the said 40% constructed area which will be allocated i.e entire first floor and on the back side of the ground floor respectively along with right, title and interest and share etc. It has stated that the O.P got the sanctioned plan from the K.M.C vide Building Sanctioned Plan dated 8.4.2004. It has claimed that complainant as owner shall be entitled to get a sum of Rs. 1 lac as a security deposit which is to be paid by the developer to the O.P . It has further stated that O.P after getting sanctioned plan constructed the building and thereafter delivered entire first floor i.e 1308 sq.ft covered area and 573 sq.ft covered area in the back portion of the ground floor at the said premises which is now re-numbered as R1/1, Bishnabghata , Patuli, Kolkata to the complainant. It has claimed that O.P delivered to the complainant 1308 sq.ft + 573 sq.ft total 1881 sq.ft covered area instead of 2264 sq.ft covered area according to the agreement for development. Thus complainant is entitled to get 383 sq.ft more constructed area in the said new building from the developer. Accordingly complainant wrote several letters but O.P failed to respond to the same by delivering 383 sq.ft i.e 40% allocation of the constructed area. Lastly complainant sent lawyer’s letter on 16.6.2014 but O.P did not pay any heed to it and refused to fulfill his part of obligation . Hence, this complaint with a prayer to deliver khas vacant physical possession of 383 sq.ft constructed area /covered area at the said premises as land owner’s allocation of 40% of the total constructed area according go the agreement for development dated 3.5.2000 or alternatively to direct the O.P to pay Rs.17,00,520/- together with interest till the date of possession and/or realization of money. Apart from that to deliver possession letter/certificate and to procure completion certificate in respect of premises no.R1/1, Bishnabghata Road and to pay Rs.1 lac towards compensation and other reliefs.
The O.P contested the case by filing written version on the ground that the case is not at all maintainable in the facts and circumstances of the case and complainant is not a consumer. Apart from that bar under the principle of Law. The positive case of the O.P is that complainant has admitted that purpose of agreement for development dated 3.5.2000 is for commercial purpose and your petitioner does not admit any statements which are contrary and inconsistent with the statements made in the agreement dated 3.5.2000. It is true that O.P constructed the building in terms of the sanctioned plan and possession of the premises has already been given as far back as in the year 2006-07. It is not true that complainant is entitled to get 2264 sq.ft as the statements made in paragraph 7 are incorrect and untrue and thus denied. So, it is incorrect that complainant is entitled to get more than 383 sq.ft area in the building as claimed. It has stated that party is in possession of extra covered space consisting of one room two bathroom in the back portion of open space ,of which, building was constructed by the O.P at his own cost as per request of the complainant and such factum has been intentionally kept secret from the Ld. Forum and not mentioned in the complaint petition . In fact complainant is having more than what he is entitled to and that the claim of the complainant is baseless, frivolous and so there is no deficiency of service and complainant is not a consumer when his intention is to commercially exploit the same. Thus O.P prays for dismissal of the case.
Points for decision in this case is whether complainant is a consumer or not and whether the O.P acted deficiency in service by not providing 40% of the constructed area in terms of the development agreement dated 3.5.2000 to the land owners/complainant.
Decision with reasons
Regarding point no.1; - When the case is taken up for argument, Ld. Advocate of the O.P filed a petition that they will prefer Transfer Application before the Hon’ble State Commission to transfer this case from this Bench as the Bench has no jurisdiction when the P.S is Patuli.
But on a moment scrutiny that application has been returned to the Ld. Advocate of the O.P with a direction get ready for argument at once. Then, Ld. Advocate of the O.P has submitted that he will contact his senior Advocate in this regard and left the hearing hall for the time being.
Complainant placed his argument and submitted that on the point of maintainability already disposed of by this Bench. So, no need of further argument on that point and thereafter submitted lot on the ground that their 40% constructed area has not yet been handed over and also relied the Engineer Commissioner’s report which has been filed by the Engineer Commissioner as per petition of the O.P and prays for completion certificate, cost compensation etc. But Ld. Advocate of the complainant has submitted that possession has already been delivered but possession certification has not been given.
It is to be mentioned here that complainant is a land owner and registration is not required. Only possession certificate is sufficient. Ld. Advocate of the O.P after consulting his Ld. Senior Advocate came to this Forum and submitted that he filed BNA . Complainant also filed BNA.
Ld. Advocate of the O.P again filed another application challenging the Commissioner’s report and one application for non-maintainability of the case. It is true that non-maintainability touching the limitation matter in view of Section 24A already disposed of by this Bench vide order no.27 dated 30.10.2015 and that order is binding upon the O.P since he has not yet challenged the same. But O.P again filed similar application supported by some judgment which was passed by the Hon’ble National Commission reported in 2014(1)CPR (NC) page 218 in connection the dispute with the bank matter. Another reported decision 2013(4) CPR (NC) 480 is in relates to theft of vehicle. Another decision reported in 2009 (5) Supreme Court page 377 in the matter of National Insurance Company is filed. Another decision of the Hon’ble Supreme Court 2009(7) page 678 is filed which is also regarding insurance matter. Another decision of Andhra Pradesh High Court in relates to the cross examination permissible by the parties through authorized agent other than advocate or not to the expert is filed.
Thus, the judgment of Hon’ble Supreme Court , Hon’ble National Commission are all connected other than the housing property. Moreover, in relates to the limitation under section 24A already disposed of by this Bench in view of the reported decision of the Hon’ble Apex Court as also Hon’ble National Commission in a housing matter where all authority has observed that cause of action is a continuous one and not barred by limitation. If in a housing matter Section 24A is applicable then unruly developer taking advantage will deprive the common people ,that is why, Hon’ble National Commission and Hon’ble Supreme Court passed the view so that without completing the flat and transferring the actual possession including the completion certificate the cause of action is continuous. But in the reported cases Hon’ble National Commission and Hon’ble Supreme Court rightly hold that in a dispute of Insurance, Bank etc. cause of action must be within the jurisdiction. The facts and circumstances should be considered by the Judge who decided the limitation point. So, no Court should be encouraged after going through the caption of the judgment. The entire facts and circumstances and the point of Law should be read out, whether it is identical in the case in hand or not. However, that limitation point in relates to the 24A already disposed of by this Bench on 30.10.2015 and up till now O.P has not challenged the same. So, this order no.27 is binding upon the O.P now, although O.P has mentioned correctly in his written statement in the last three line of para 10 page no.3 that “Complainant with an intention to commercially exploit the same” and claimed that complainant has got no locus standi to maintain the complaint as he is not a “consumer” at all. This averment of the O.P in the written version as stated above has sufficient merits , but the O.P is plying either and thither without going into the merits of the case of a housing property and in view of section 2(1)(d)(ii) of the C.P Act , EXPLANATION : Wherein it has been mentioned after amendment with effect from 15.3.2003 that for the purpose of this clause “Commercial Purpose” does not include use by a person of goods bought and used by him/her and services availed by him/her exclusively for the purpose of earning his/her livelihood by means of self employment.
Here, in the instant case there is no averment in the four corners of the complaint case that complainant for the purpose of his livelihood desired to commercially exploit the said property in para 2 of the complaint. It has also admitted that he wanted the said property and desired to commercially exploit and accordingly entered into an agreement with the O.P on 3.5.2000 in order to raise multistoried building on the said land and under certain terms and conditions.
So, it is clear that complainant admittedly wanted to exploit commercially which is barred in view of the C.P Act, 1986, of course, the O.P has to prove the same ,that is why, we turn our eyes on the documents which has been relied on by the complainant marked A1 ,wherein we find that in para 2(ix) not to use or allow to be used the land or the structure thereon or any part thereof for any purpose other than for residential purpose without the permission in writing to the authority. The para 7 of .2 of Lease Agreement is also attractive that
Lessee shall not assign or transfer the demised land or any part of the demised land and/or structure erected without the previous permission of the authority in writing etc.
Para VI is also applicable; the Lessee shall not sublet the demised land or the building to be constructed without the consent of the authority.
Admittedly complainant Sumit Kumar Mitra is a Lessee and KMDA is the lessor. So, this condition which I stated above is binding upon the Lessee and Lessee has failed to produce any document /agreement obtained by him before the execution of the agreement with the O.P. Apart from that, the Engineer Commissioner’s report ,although challenged by the O.P, but it supports the case of the O.P,if we turn our eyes on the said report, wherein it has clearly mentioned that there are sweet shop, restaurant,kitchen Owner’s shop: Gobinda Ch. Dutta, Owner(Restaurant) Sri Sumit K Mitra, Owner of kitchen: Sri Rajib Paul in the ground floor . Thus it is clear that the construction was admittedly for commercial purpose and Engineer Commissioner’s also proved the same. So, it is unfortunate that O.P did not point out the said vital thing by filing application for non-maintainability of the case with a prayer that complainant is not a consumer.
Be that as it may, it has been nakedly proved from the report of the Commissioner who is none but empanelled by the Hon’ble High Court and we have collected the names from the Hon’ble High Court. So, he is highly independent person and although the O.P challenged the said report but we relied the said report and hold that the construction of the ground floor is being commercially used. Some photograph has been kept in the record, wherefrom it appears that Indian Overseas Bank , one Bengali Restaurant and other shops are running in the said premises. So, on a moment scrutiny truth has come out that complainant himself disobeyed the direction of the KMDA by not using the lease property as prescribed in VX of point no.2 and exploited the same for the purpose of obtaining profit.
It is not out of record that complainant Sumit Mitra issued a letter to the Senior Manager , Indian Overseas Bank on the subject of laying his premises as proposed Patuli Branch which is in the first floor of the building and monthly rent will be Rs.12000/- per month. Commercial surcharge is to be reimbursed to the landlord by the Bank.
So, all these documents clearly hits the agreement of the complainant and there is no dispute that complainant wrongly used the premises commercially. So, he is not a consumer. Apart from that, Engineer Commissioner’s report also holds that in the first floor there are bank , shop and restaurants. So, in view of the provision of Section 2(a)(d)(i) of the C.P Act, complainant ceased to be a “consumer” as the property is being used commercially. So, only relief left out to the complainant is to move before the Hon’ble Civil Court under the Specific Performance of Contract Act ,since complainant is not a consumer under the purview of the C.P Act.
Since complainant is not a consumer in view of the discussion made in above, no need of further discussion regarding deficiency of service of the O.P.
Hence,
Ordered
That the application filed under section 12 of the C.P Act, 1986 is dismissed on contest against the O.P since complainant is not a “consumer” under the purview of the C.P Act, 1986 in light of the observation made in above. But in the sorry state of affairs considering the old age of the case ,we make no order as to the cost.
One thing should be pointed out that all should take care regarding their pleadings, but unfortunately the O.P slipped out from that pleadings ,that is why non-maintainability petition for using the property for commercial purpose was not placed by the O.P in proper time, but that does not mean that the right has already been waived.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application filed under section 12 of the C.P Act, 1986 is dismissed on contest against the O.P since complainant is not a “consumer” under the purview of the C.P Act, 1986 in light of the observation made in above. But in the sorry state of affairs considering the old age of the case ,we make no order as to the cost.
One thing should be pointed out that all should take care regarding their pleadings, but unfortunately the O.P slipped out from that pleadings ,that is why non-maintainability petition for using the property for commercial purpose was not placed by the O.P in proper time, but that does not mean that the right has already been waived.
Member President
