Date of Filing : 10/07/2019
Date of Judgement : 09/06/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed u/s 12 of the Consumer Protection Act 1986 by Sudip Bhadra against OPs (referred as OPs hereinafter) namely i) Subrata Haldar ii) Chaya Dutta iii) Maya Ghosh and iv) Bijaya Das alleging deficiency in service on the part of OPs.
Case of the complainant in short is that, he was a tenant in respect of a shop room at a monthly rent of Rs.200/- under one Ila Dutta, the land lady who was the mother of OP 2, 3 & 4. On her death, OP 2, 3 & 4 became co-owners of the premises No. 32, Vivekananda Sarani under P.S. Garfa, where the shop room in question was situated. Thus the complainant became tenant under OP 2, 3 & 4. Thereafter, OP 2, 3 & 4 being owners, executed a development agreement-cum-power of attorney dt. 6.2.2015 empowering the OP 1 to demolish the existing structure and raise G+3 storied building. It was agreed that the OPs shall demolish the existing shop room of the complainant and construct a new shop room measuring more or less 68 sq.ft. at the ground floor of the newly constructed multistoried building and the consideration price was settled at Rs.68,000/-. An agreement for sale was also entered into between the parties which was also registered on 28/2/2018. As per the agreement, complainant paid sum of Rs.5000/- to the OPs 2, 3 & 4 and rest of the amount of consideration i.e. Rs.63000/- was agreed to be paid by the complainant to OPs 2,3 & 4 at the time of registration of the deed of conveyance. It was also agreed that OP 1, the developer shall complete the construction work of the shop room within 6 months from the date of agreement for sale. The stipulated period to deliver the possession and to execute the deed expired in August 2018, but OP failed and neglected to complete the construction work of the shop room. As per agreement, OP 1, the developer was to pay Rs.8000/- per month in favour of the complainant towards alternative accommodation if he had failed to complete the construction of the shop room, but neither the constructional work of the schedule shop room has been completed nor any charges towards alternative accommodation has been paid. However, on 31/12/2018 OP 1 made a declaration acknowledging his inability to complete the said work and also undertook to pay the amount of alternative accommodation to the complainant. But neither such amount has been paid, nor the possession of the shop room has been delivered to the OP. So the present complaint has been filed by the complainant praying for directing the OPs to execute the deed of conveyance in respect of the schedule shop room, upon receiving the balance consideration of Rs.63000/- from the complainant, to complete the construction of the schedule shop room as per agreement for sale, to handover the possession of the shop room and to issue the possession letter and completion certificate, to direct OP 1 to pay sum of Rs.8000/- per month as shifting charges w.e.f. September 2018 and to pay litigation cost of Rs.10000/-.
On perusal of the record, it appears OP 1 has contested the case by filing the written version denying and disputing the allegations contending specifically that as per the development agreement dt. 28/2/2018, it has been clearly mentioned that the possession to the owner shall be delivered within 24 months from the date of the sanction plan or from the date of delivering the vacant khas possession of the premises whichever is later. It is further contended that OP 1, on completion of the construction work, shall hand over the owners’ allocation to the owners who then shall hand over the possession of the alleged shop room to the complainant. But even though OP 1 has completed the demolition work within the stipulated time, but could not demolish one unauthorized shop room existing in the scheduled property and being occupied by one Rajiv Paul. For the said reason, the KMC has not sanctioned the proposed building plan. No declaration as claimed by the complainant dt. 31/12/2018 was executed by the OP 1 and the same is a forged document. It is also contended that the complainant is not a purchaser and thus not entitled to any benefits under the provision of Consumer Protection Act. So, OP 1 has prayed for dismissal of the complain case.
OP 2 to 4 have also contested the case by filing written version contending specifically that after completion of all the formalities, OP1 the developer has submitted the proposed building plan before the KMC on their behalf but the same could not be sanctioned as the KMC is asking to remove the unauthorized temporary structure existing in the said property which is in occupation of one Rajiv Paul. OP 2 to 4 have also contended that complainant is not a purchaser and so not entitled to any benefit under the Consumer Protection Act. It is further case of the OP 2 to 4 that the complainant is only entitled to get a room measuring more or less 68 sq.ft. from the OPs against payment of only construction cost. So they would deliver the possession of the said room to the complainant on receiving the balance construction cost after completion of the building by the developer, OP 1. So OP 2 to 4 have also prayed for dismissal of the complaint with cost.
During the course of evidence, both parties have filed their respective evidences followed by filing of questionnaire and reply thereto. Ultimately argument has been advanced. They have also filed the BNA.
So the following points require determination :-
- Whether the complainant is a consumer under the provision of the Consumer Protection Act.
- Whether there has been any deficiency in rendering of service on the part of the OPs.
- Whether the complainant is entitled to the relief as prayed for.
Decision with reason
Point No. 1 :
In support of his claim that an agreement for sale was entered into between the parties, complainant has filed the said agreement for sale dt. 28/2/2018 wherefrom it appears that there is a specific recital that after construction, parties shall transfer, sale, conveyed, hand over the physical possession of more or less 68 sq.ft. covered area in favour of the purchaser morefully described in the schedule B in the said agreement. Said specific recital in the agreement is very clear that the OPs 2 to 4 being the owners had agreed to transfer the said 68 sq.ft. shop room in the newly constructed building in favour of the complainant on consideration price of Rs.68000/- of which they had also acknowledged that they have already received a sum of Rs.5000/- from the complainant on the date of execution and registration of the said agreement for sale. It is also evident from the said agreement for sale that the complainant was occupying the shop room in the said existing premises as a tenant. OP 1, the developer is a confirming party in the said agreement for sale. So there cannot be any dispute and denial that the complainant who was a tenant in the premises agreed to acquire the shop room on ownership basis in the proposed newly constructed building by way of purchase on payment of consideration price and thus he hired the services of OPs of housing construction. In such a situation, complainant is a consumer and thus the contention of the OPs that the complainant is not a purchaser and was to deliver the possession of a shop room on payment of the construction cost, is devoid of any merits and thus not accepted.
This Point is accordingly answered.
Point No. 2 & 3 :
Both the points are taken up together for discussion in order to avoid repetition. As already highlighted above, that the agreement for sale dt. 28/2/2018 has been filed by the complainant. Complainant has also filed the copy of the development agreement along with development power of attorney executed and registered on 6/2/2015 entered into between the OP 2, 3 & 4 being the owners and OP 1, the developer whereby they had agreed to raise G+3 storied building which was to be constructed and delivered possession to the land owners within 24 months from the date of sanction of the building plan or from obtaining the khas vacant possession whichever was later. On a careful scrutiny of the written version filed by the OPs, it appears that execution of agreement for sale in favour of the complainant has not been disputed and denied. Similarly payment of Rs.5000/- by the complainant at the time of execution and registration of the agreement for sale, has also not been denied. It is an admitted fact that the rest of the amount towards consideration price was to be paid at the time of registration of the deed in favour of the complainant. It is further evident from the written version filed by OP 1 the developer and the OP 2 to 4, the owners that the entire building has been demolished barring a shop room, which appears to be in occupation of one Rajiv Paul. It is very specific case of OPs that for the said reason, the plan has not been sanctioned by the KMC. The said specific statements in the written version filed by the OPs is indication of the fact that the shop room of the complainant has also been demolished. But till date possession of the shop room as per agreement for sale has not been handed over to the complainant.
It is true, as agitated by the OP 1, that there was no such terms in the agreement for sale that he shall complete the construction work of the alleged shop room No. 3 within 6 months from the date of the said agreement, but it may be mentioned here that a declaration has been filed which according to the complainant has been executed by the OP 1. On a careful scrutiny of the said declaration dt. 28/2/2018 it appears there is a specific clause that after the execution of the agreement for sale, the demolition work can continue and to be finished within 6 months which is the essence of the agreement. In the said declaration, it is also categorically mentioned that the complainant has handed over the possession of the shop room. It further appears from the said declaration that OP 1 agreed to finish his work and hand over the possession of the shop room within 6 months. So the declaration is very specific regarding the time in which the possession was to be delivered. Even though OP 1 has denied and disputed the execution of the said declaration dt. 28/2/2018 contending specifically that the same is a forged document, but has not taken any step during the course of evidence to refer the matter to a handwriting expert for his opinion. There cannot be any dispute that the handwriting expert is the best person to give his opinion whether the signature is of OP 1. So in the absence of any such opinion of an handwriting expert, the claim of the complainant that the said declaration was executed by OP 1 cannot be discarded. So the said declaration appears to have been executed to complete and hand over the possession within a specific time limit. But according to the complainant, he has neither been given charges towards alternative accommodation nor the possession of the shop room.
Para 6 of the agreement for sale is very specific that in the event of failure to hand over the shop room No. 3 as per the time limit the developer confirming party shall pay Rs.8000/- only per month as shifting charge or loss of business money, in favour of the purchaser to run his business in an alternative accommodation till handing over of the physical possession of the shop room in the new building. It is nowhere stated by the OP 1 that he has made any such payment at any time. So, complainant is not only entitled to the shop room, but also entitled to charges of alternative accommodation as per agreement. Since admittedly plan has not been sanctioned and no construction has been carried out in respect of the proposed G+3 building, any direction to hand over the possession of the shop room and its registration by a deed of conveyance, will be vague and ineffective at this stage. However, complainant’s right of possession and ownership in respect of the shop room as described in the agreement for sale dt. 28/2/2018 will always remain and when the building is constructed, complainant will be entitled to the said shop room, failure to deliver the shop room even after the construction of the building will entitle the complainant to take the legal recourse. But till the possession is delivered and deed of conveyance is executed, OP 1 is liable to pay Rs.8000/- per month towards charges of alternative accommodation from the month of September, 2018 till the date of delivery of possession.
Before parting, it may also be mentioned that it is strange that the building plan was not sanctioned by the appropriate authority but the OPs have demolished the existing building depriving the complainant from his shop room. So, OP 1 is liable to pay the charge towards alternative accommodation but OP 2 to 4 are also liable to pay the compensation to the complainant. An amount of Rs.70,000/- will be justified as compensation.
Hence
ORDERED
CC/336/2019 is allowed on contest against the OPs. OP 1 is directed to pay Rs.8000/- per month to the complainant from the month of September 2018 to till this date, within two months from the date of this order and further shall go on paying the same till the possession of the shop room is delivered. OP No. 2 to 4 are directed to pay Rs.70,000/- as compensation to the complainant within the aforesaid period of two months. OPs are further directed to pay Rs.10,000/- as litigation cost within the aforesaid period of two months.
