In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/106/2019.
Date of filing: 07/08/2019. Date of Final Order: 21/05/2024.
- Sri Adip Khan
- Sri Abhik Khan
- Sri Subhajit Khan,
1 to 3 are sons of Late Brojen Khan,
25 no. J.C. Khan Road, P.O. Mankundu,
P.S. Bhadreswar, Dist. Hooghly, PIN. 712139...….complainants
- Sri Tapan Kumar Saha,
Son of Late Gokul Saha,
- Smt. Bulu Saha,
Wife of Tapan Kumar Saha,
1 and 2 are of Mankundu Palpara,
P.O. Mankundu Govt. Colony,
P.S. Bhadreswar, Dist. Hooghly.
- Sri Jayanta Kundu,
Son of Late Radhakrishna Kundu,
Of Mankundu Station Road,
P.O. and P.S. Chandannagar,
Dist. Hooghly, PIN. 712136.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
Member, Debasis Bhattacharya.
Member, Babita Chaudhuri.
FINAL ORDER/JUDGEMENT
Presented by:-
Shri Debasish Bandyopadhyay, President.
Brief fact of this case:- This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainants stating that on 16.12.2016 a development agreement being no. 060400412 for the year 2017, registered at A.D.S.R. Chandannagore was entered into by and both the parties to this case over the property as describe in the schedule of complainant and the complainant land owners believed that the opposite parties will perform their bonafide duty according to the settle terms and condition but unfortunately the opposite parties deliberately ignored to comply the terms and conditions of the said development agreement. The opposite parties developer agreed to deliver the peaceful possession to the complainant land owner within 24 months from the date of sanction of building plan but the opposite parties developer willfully defaulted to the deliver the possession to the land owners as such acted in contravention of the said development agreement and the said building plan was sanctioned on 24.4.2017 and as such the developers were bound to deliver the possession to the complainant within 23.04.2019 but in vain. On 16.5.2019 a notice was issue to the opposite parties to deliver the allocation as per the terms and conditions of the said development agreement and was further asked to arrange a proper time for proper measurement of the allocation. The notice was delivered to the opposite party on 20.5.2019, inspite of which, the opposite party did not render any service to the complainants land owners as per the terms and contract for service. The complainants further asked the opposite parties to arrange for a meeting for measuring the allocated portion by a registered planner so that the complainants/ land owners can peacefully received the delivery of possession of the said allocation as mentioned in the aforesaid agreement. The complainants/ land owners are even apprehending that the opposite parties/ developer may have constructed much lesser area than that of agreed upon by and between the parties. The opposite parties are under obligation to deliver the land owner’s allocation as agreed by and between the parties herein as per the terms and condition of the development agreement being no. 060400412 for the year 2017, registered at A.D.S.R. Chandannagar and the opposite parties even did not hand over the sanctioned building plan and other necessary documents for proper verification to the complainant/ land owners even terminated the electric connection without letting the complainants/ land owners.
Complainant filed the complaint petition praying direction upon the opposite parties to pay a sum of Rs. 15,00,000/- as compensation and to pay a sum of Rs. 4,60,000/- as damage for inflicting mental agony and to pay a sum of Rs. 40,000/- as litigation cost.
Defense Case:- The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that a development agreement along with General Power of Attorney was executed by the complainants and Smt. Anjana Khan and Smt. Subhasree Khan as land owners and the opposite parties as developers and the same was registered on 16.12.2016. On the basis of the said development agreement these answering opposite parties had started to develop the case land for construction of a multistoried building upon the case property and then on survey a land measuring more or less 5 katha 4 chhatak was physically found upon the case property which is lower than that of the representation as made by the complainants to these opposite parties i.e. the agreed land of development agreement. Initially the complainants assured the opposite parties that they will clear all defects and no problem will occur in future in respect of the exact area. Believing the same the opposite parties started to develop the land and invest a large amount of this own in the case property and not only that the opposite parties had taken a huge amount of loan from private parties for the project.
In the said development agreement the specific allocations were made for the land owners and besides the space allocations specifically mentioned in the said development agreement dt. 16.12.2016 it was also settled between the parties that an amount of Rs. 45,00,000/- will be paid by these answering opposite parries as consideration money to the complainants and Anjana Khan and others, out of which Rs. 25,00,000/- will be paid to Anjana Khan and Subhasree Khan and Rs. 20,00,000/- will be paid to the complainants and to minimize the registration cost, the consideration money of Rs. 45,00,000/- was not mentioned in the said development agreement.
A sum of Rs. 22,68,000/- (Adip Khan Rs. 7,70,000/-, Avik Khan Rs. 6,78,000/-, Subhajit Khan Rs. 8,20,000/-) has already been paid to the complainants out of Rs. 20,00,000/- and Rs. 6,50,000/- has already been paid to the other land owner Anjana Khan, Subhasree Khan ( Anjana Khan Rs. 4,75,000/-, Subhasree Khan Rs. 1,75,000/-) out of Rs. 25,00,000/-. Thereafter as and when these answering opposite parties started to proceed further toward the construction work upon the case property after getting sanctioned building plan from the authority concerned which was duly signed by the complainants/ land owners and for that purpose opposite parties had taken advance from the intending purchasers, Anjana Khan and Subhasree Khan had filed a Civil Suit for declaration and permanent injunction with so many prayers being Title suit no. 70/2018 before the ld. 1st Court of Civil Judge Jr. Dvn. Hooghly at Chandannagar against the complainants and these answering opposite parties and the said suit is still pending and thereafter the said Anjana Khan and Subhasree Khan have rushed before the High Court at Calcutta being C.O. no. 3516 of 2018 and said Anjana Khan and Subhasree Khan prayed for injunction before the Court in respect of construction work not only that these answering opposite parties always were under threat and were strictly prevented by some local hooligans so that they could not proceed anymore and stop construction.
Inspite of several threats upon the opposite parties, they have completed the multistoried building upon the case property. The opposite parties have delivered possession of the respective specific allocations to the complainant nos. 2 and 3 and Anjana Khan. Possession letters have already been issued to that effect and except complainant no. 2, Subhajit Khan and Anjana Khan have accepted the same. Electric meters have already been installed in the names of Adip Khan, Avik Khan (complainant nos. 1 and 2) and said complainant nos. 1 and 2 are living and staying in another property of these answering opposite parties till today free of cost. Now at present complainant no. 3 has no complaint against these answering opposite parties and he has executed a declaration through affidavit in favour of these opposite parties. The Xerox copy of sanction plan was handed over to the complainants but they refused to accept the same. Due to the title Suit being no. 70/2018 is still pending before the ld. 1st Court of Civil Judge Jr. Dvn, Hooghly at Chandannagar and also for prolonged lockdown for pandemic situation in the state which are beyond the control of these opposite parties, the finishing work of the building was very much hampered and for that reason these opposite parties are not liable and the complainants are not entitled to get any decree as prayed for.
These answering opposite parties are not liable for deficiency of service as it has not been complied with as per the terms of the development agreement. The opposite parties never acted negligently in attending the complainants. These opposite parties acted as per terms and conditions as laid down in the development agreement and there is a specific clause in respect of defect in the title which speaks that the land owners will be responsible for remedying such defects and they indemnify and undertake to keep the developers indemnified from and against all losses and damages which the developers may suffer. There is also another clause specifically mentioned as force majure by which these developers shall not be held liable for any delay due to legal disturbances or that pandemic situation.
In the aforesaid circumstances considering the Title Suit being no. 70/2018 and for the pandemic situation the instant case is liable to be rejected at once.
The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that a development agreement along with general power of attorney was executed and registered on 16.12.2016 by the complainants and Smt. Anjana Khan and Smt. Subhasree Khan as land owners and the opposite parties as developers. On the basis of the said development agreement the answering opposite party along with other opposite parties had started to develop the case land for construction of a multistoried building upon the case property. Then on survey a land measuring more or less 5 katha 4 chhatak was physically found upon the case property which is lower that that of the representation as made by the complainants to the opposite party i.e. the agreed land of development agreement. Initially the complainants assured the opposite parties that they will clear all defects and no problem will occur in future in respect of the exact area. Believing the same the opposite parties started to develop the land and invest a large amount of his own in the case property. Not only that the opposite parties had taken a huge amount of loan from private parties for the project.
In the said development agreement the specific allocations were made for the land owners and besides space allocations specifically mentioned in the said development agreement dt. 16.12.2016 it was also settled between the parties that an amount of Rs. 45,00,000/- will be paid by these answering opposite parties as consideration money to the complainants and Anjana Khan and others, out of which Rs. 25,00,000/- will be paid to Anjana Khan and Subhasree Khan and Rs. 20,00,000/- will be paid to the complainants and to minimize the registration cost, the consideration money of Rs. 45,00,000/- was not mentioned in the said development agreement.
A sum of Rs. 22,68,000/- (Adip Khan Rs. 7,70,000/-, Avik Khan Rs. 6,78,000/-, Subhajit Khan Rs. 8,20,000/-) has already been paid to the complainants out of Rs. 20,00,000/- and Rs. 6,50,000/- has already been paid to the other land owner Anjana Khan, Subhasree Khan ( Anjana Khan Rs. 4,75,000/-, Subhasree Khan Rs. 1,75,000/-) out of Rs. 25,00,000/-. Thereafter as and when these answering opposite parties started to proceed further toward the construction work upon the case property after getting sanctioned building plan from the authority concerned which was duly signed by the complainants/ land owners and for that purpose opposite parties had taken advance from the intending purchasers, Anjana Khan and Subhasree Khan had filed a Civil Suit for declaration and permanent injunction with so many prayers being Title suit no. 70/2018 before the ld. 1st Court of Civil Judge Jr. Dvn. Hooghly at Chandannagar against the complainants and these answering opposite parties and the said suit is still pending and thereafter the said Anjana Khan and Subhasree Khan have rushed before the High Court at Calcutta being C.O. no. 3516 of 2018 and said Anjana Khan and Subhasree Khan prayed for injunction before the Court in respect of construction work not only that these answering opposite parties always were under threat and were strictly prevented by some local hooligans so that they could not proceed anymore and stop construction.
Inspite of several threats upon the opposite parties, they have completed the multistoried building upon the case property. The opposite parties have delivered possession of the respective specific allocations to the complainant nos. 2 and 3 and Anjana Khan. Possession letters have already been issued to that effect and except complainant no. 2, Subhajit Khan and Anjana Khan have accepted the same. Electric meters have already been installed in the names of Adip Khan, Avik Khan (complainant nos. 1 and 2) and said complainant nos. 1 and 2 are living and staying in another property of these answering opposite parties till today free of cost. Now at present complainant no. 3 has no complaint against these answering opposite parties and he has executed a declaration through affidavit in favour of these opposite parties. The Xerox copy of sanction plan was handed over to the complainants but they refused to accept the same. Due to the title Suit being no. 70/2018 is still pending before the ld. 1st Court of Civil Judge Jr. Dvn, Hooghly at Chandannagar and also for prolonged lockdown for pandemic situation in the state which are beyond the control of these opposite parties, the finishing work of the building was very much hampered and for that reason these opposite parties are not liable and the complainants are not entitled to get any decree as prayed for.
These answering opposite parties are not liable for deficiency of service as it has not been complied with as per the terms of the development agreement. The opposite parties never acted negligently in attending the complainants. These opposite parties acted as per terms and conditions as laid down in the development agreement and there is a specific clause in respect of defect in the title which speaks that the land owners will be responsible for remedying such defects and they indemnify and undertake to keep the developers indemnified from and against all losses and damages which the developers may suffer. There is also another clause specifically mentioned as force majure by which these developers shall not be held liable for any delay due to legal disturbances or that pandemic situation or that of AMPHAN.
In the aforesaid circumstances considering the Title Suit being no. 70/2018 and for the pandemic situation the instant case is liable to reject at once.
Issues/points for consideration
On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
- Is there any cause of action for filing this case by the complainant?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?
Evidence on record
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.
Argument highlighted by the ld. Lawyers of the parties
Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.
DECISIONS WITH REASONS
The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are clubbed together and taken up for discussion jointly at first.
Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Bhadreswar, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1)(d) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law. All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.
The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.
For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.
On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that the complainants are the land owners in respect of the suit property and the OPs have paid to the complainants sum of amount of Rs.45,00,000/- to some of the complainants as compensation for acquiring the land of the complainants where the multistoried building has been constructed. But fact remains that the OPs have not allotted the flat to complainant no.1&3 inspite of there is an agreement in between complainants and OPs. In this regard the OPs have adopted the plea that one schedule case being no. Title Suit no.70 of 2018 is pending before the Ld. Civil Judge Junior Division First Court Hooghly at Chandannagar against the complainants and one C.O. No.3516 of 2018 is also filed before the Hon’ble High Court and for that reason the OPs have failed to allotted any flat to complainant no.1 & 3. In this regard it is very important to know that the OPs allotted the flat in favour of Complainant no.2 but the flats of complainant No.1&3 have been allotted by the OPs due to the reason best known to them. When the OPs have allotted the flat to complainant no-2, this District Commission finds no bar for allotting the flats to complainant no.1&3 and there is also no bar for handing over possession of the said flats to complainant no.1&3 and similarly there is no obstacles in the matter of execution and registration of the sale deeds in favour of complainant no.1&3 by the OPs. In view of such finds the above noted defence alibi taken by the OPs relating to the pendency of cases, being no legs to stand upon and so such plea of the OPs cannot be accepted. The evidence on record is clearly depicting that the OP no.1&3 are entitled to get their flats in respect of the suit property and for that reason the points of consideration no.4&5 are decided in favour of the complainants.
In the result it is accordingly,
ordered
that this C.C. no. 106 of 2019 be and the same is allowed on contest but in part. It is held that the complainants entitled to get compensation of Rs.700000/- and litigation cost of Rs.20,000/- from the OPs. The Opposite Parties are directed to pay the said amount of Rs.7,20,000/- alongwith interest @ Rs. 9 % per annum from the date of filing of this case to the complainants within two months from the date of this judgment. Otherwise the complainants are given liberty to execute this award as per law.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
