Date of filing : 15.07.2011

Date of hearing: 22.06.2016

Date of judgement : 01.07.2016

PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

JUDGEMENT

        The instant complainant under section 17 of the Consumer Protection Act,1986 ( hereinafter referred to as ‘the Act ) is at the behest of intending purchasers against the Developer with the allegation of  deficiency in services on the part of them in respect of  two  Row Houses measuring about 1840.64 sq. feet each together with cluster plan lying and situated at  at Kolkata West International City ( KWIC ), Howrah – Amta Road, and  Bombay Road Crossing ( NH – 6 ), Bankra, Howrah – 711403.

        In a nutshell, Complainants case is that Complainant No. 1 being son and father  had applied for a Row House on 28.02.2006 with a payment of Rs.3,15,000/-. On  20.04.2016 Kolkata West International City ( KWIC) had issued a provisional allotment letter in respect of a Row House being No. B/03/07. The Complainant No. 2 being son and father jointly applied for a Row House on 28.02.2006 with a payment of Rs.3,15,000/- and on  18.04.2006 KWIC had issued a provisional allotment letter in respect of Row House being No. B/03/09. On  02.07.2007 the OP No. 3 ( KWIC) had entered into an agreement with the Complainants named as “Standard Terms and Conditions cum Allotment Agreement”. Both the Complainants have already paid Rs.28,76,600/- each as part consideration amount out of total consideration amount of Rs.30,74,000/- each. The Complainants allege that as per provisional allotment letters, the completion date of the project was 31.12.2007 with  a grace period for six months till 30.06.2008 but the project has not completed till date. The Complainants have also alleges that there are so many deficiencies on the part of KWIC in respect of facilities promised by them in the brochure till date. The Complainants submit that they are practicing Chartered Accountants and on several occasions they have requested KWIC to handover the possession in terms of the agreement but it remain unattended. Hence, the complaint with prayer for certain reliefs, viz. (a) to direct the OP No.3  (KWIC) to register and execute Deed of Conveyance ; (b) to direct the OP No.3 KWIC to provide completion certificate ; (c) to provide all other facilities and amenities as per the  brochure and agreement ; (d) to pay compensation of 18% for the delayed possession and ; (e) litigation cost of Rs. 75,000/- etc.

        The Opposite Party  No. 3 i.e. Kolkata West International City Pvt. Ltd.  by filing Written Version disputed and denied the material allegations levelled by the Complainants contending inter alia that   the units booked by the Complainants were complete in all respect  in March, 2010 and completion certificate in respect of the Units of the                  Complainants were received on 18.06.2010. The OP No. 3 has stated that on completion of all construction works of the respect units, final measurement were done by the Architect of the project and the actual area of the units stood as  1931 sq.feet and 1977 sq. feet in respect of unit Nos. B/03/07 and B/03/09 respectively. On 21.10.2010 they requested the Complainants to pay the balance amount due and to take possession but the Complainants failed and neglected to  do the same and as such on  09.05.2015 a sum of Rs.9,80,024/- and Rs.11,24,867/- became due and payable by the Complainant Nos. 1 and 2 respectively. The OP No. 3 has also submitted the delay in completion of the project was due to delay in obtaining  necessary approvals from Statutory Authority and there is no latches or negligence on the part of them.

        On the basis of the contentions of the parties, the following points are framed for adjudication:-

        1) Is the complaint maintainable?

        2) Is there any deficiency in services on the part of the Opposite Party No. 3 to fulfil the terms and conditions of the agreement ?

        3) Are the Complainants entitled to get the reliefs, as prayed for ?

        In order to substantiate their case, Complainants have tendered evidence on affidavit by Shri Sachin Kumar Bhalotia, one of the Complainants  to which questionnaire has been filed on behalf of Opposite Party against which reply has been filed on behalf of  the Complainants.

        On the other hand, one Shri Anirban Chatterjee, being authorised signatory of KWIC has filed evidence on affidavit against which questionnaire was set forth by the Complainants to which reply was given by the Opposite Party No.3.

        Besides oral statements, parties have relied upon some documentary evidence.

        On the basis of the materials indicated above, we shall proceed to discuss how far the Complainants have been able to substantiate their case.

DECISION

Point Nos. 1:

        The maintainability of the case has been challenged by the Opposite Party. In course of final hearing of the case Mr. Abhik Kumar Das with Mr. P. R. Bakshi, Ld. Advocates appearing for the Opposite Party No.3 has drawn our attention to  Clause B and C of the Buyer’s Agreement dated 02.07.2007 executed by and between the parties and  submitted that the Kolkata Metropolitan Development Authority ( KMDA ) has executed a lease of  82.147 acres of land for a period of 999 years in favour of the Opposite Party No.3  by a Lease Deed dated 21.12.2014 and the Opposite Party No.3 is entitled to grant sub-lease of any portion of the said land and Units to be constructed thereon for the unexpired period of 999 years. Therefore, since the dispute pertains to lease between the parties the Complainant does not fall within the category of ‘consumer’ as defined in Section 2 (1)(d) of the Act.

        At the outset, it would be pertinent to mention that the Complainants  have made  applications to the Opposite Party No. 3 for allotment of Unit/Row Houses at KWIC, Howrah. On the basis of such application by provisional allotment letters, the Opposite Party No3 provisionally allotted the Row Houses being Plot No. B/03/07 and B/03/09  respectively measuring about 1840.64 sq. feet each at a consideration of Rs. 30,74,000/-each. In the said agreement, nowhere it has been mentioned that the property was acquired by the Opposite Party by way of lease. Subsequently, a buyer’s agreement was executed by and between the parties on 02.07.2007 and it transpires that the letters of provisional allotment dated 18.04.2006 and 20.04.2006 are  part and parcel of buyer’s agreement dated 02.07.2007.

        The plea of ‘lease’ has not been taken by the Opposite Party in their written version. The provisional allotment letters or the Buyer’s Agreement dated 02.07.2007 do not show that any amount of payment has been assessed for such alleged sub-lease.  It is not in dispute that Complainants have already paid Rs. 28,76,600/- each in favour of the Opposite Party No.3 prior to Buyer’s Agreement.s After collecting almost the entire consideration amount, at a belated stage, the plea of lease was  taken. In all fairness, the Opposite Party No.3 should have mentioned in the provisional allotment letters that it was a leasehold property. In this regard, it would pertinent to record that the KMDA is a  part and parcel of Government of West Bengal and when the lease was granted by the KMDA in favour of KWIC for 999 years and further when the provisional allotment letters do not show any stipulation that it is a leasehold property and further when the said allotment letters do not show any amount to be paid by the sub-lessee as consideration and when about 90% of the total consideration amount  has already been received by the Opposite Party prior to execution of Buyer’s Agreement, the complaint cannot be thrown out on the ground that a Consumer Fora has no jurisdiction to entertain the same.

        Mr.  Bakshi, Ld. Advocate for the Opposite Party No. 3 /Developer has placed before us an order dated 04.03.2016 passed By First Bench of this Commission in CC 35/2011 ( Dhiraj Kakati & Ors. –vs. – KWIC Pvt. Ltd. ). In the said order was passed  relying upon the decisions reported in  (1) I (2011) CPJ 318 (NC)  (Yogesh Yadav vs. – Ansal Housing & Construction Ltd. & Anr. ) ; (2) 2012 CPJ 491 ( NC) ( Sunil J Verma – vs. – City & Industrial Development Corporation Ltd. & (3) 2011 CPJ 492 (SC) ( Bhubaneswar Development Authority – vs. – Susanta Kumar Mishra ). We have gone through the referred decisions. In the case of Yogesh Yadav ( Supra ) the Complainant had entered into a lease agreement with the Opposite Party for commercial purpose and also Complainant initiated a Civil Suit and also a Police complaint of threat. In Sunil J Verma’s case ( Supra ) it was held that the entire complaint was based on matters arising from agreement of lease and the Complaint was not a consumer. In Bhubaneswar Development Authority’s case (Supra) it has been held that in case of lease cum sale agreement there was no deficiency in services.

           In the referred case, the lease was taken for commercial purpose. But in our case the Complainants have applied for a Row Houses to cater their personal need. Moreover, in the provisional allotment letter it has not been mentioned that it is a leasehold property and after collecting the entire consideration amount the Opposite Party has disclosed the factum of lease and that too has not been averred in their written version. Therefore, the referred decisions are distinguishable with the peculiar facts and circumstances of the present case.  We must not be obsessed with the objective behind the enactment of the Act which is to render justice of the consumers, who are aggrieved on account of deficiency in service, hired availed by them. The avowed object behind the enactment of the Act is to protect a consumer from the oppression of the developer.

        Ld. Advocate for the contesting Opposite Party has also submitted that in accordance with the provisions of Sections 2(b) (iv), 12(c) and 13(6) of the Act before filing the complaint, Complainants should have obtained permission of the Court.  The submission does not appear to us  relevant for the purpose of this case. In fact, two sons and their father have filed this complaint in respect of same cause of action and as such those provisions do not create any bar in filing a complaint by one or more consumers jointly.

        Ld. Advocate for the Opposite Party No. 3 also did not spare to submit that the two Row Houses intended to purchase by the Complainants for investments and as such it would be excluded from the purview of the Act. In their written version  the OP No.3 did not contradict the statement of the Complainants in this regard and as such the submission on this count does not appear to have any substance.

        From another angle the matter should be looked into. If a developer is allowed to keep a lease deed on his cap and suppressing the same promised a person to allot a particular property and subsequently after receiving the bulk consideration amount disclosed that the property is a leasehold one, certainly taking advantages of the same there will be developer’s paradise and the object and purpose behind the enactment of the Act would totally be frustrated. In times without number the Hon’ble Supreme Court of India has reiterated that the Act has been enacted for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary Court system and the Act being a beneficial legislation should receive a liberal construction.

        Considering all aspects, this point is decided in the affirmative and in favour of the Complainants.

Point No.2

        From the evidence of the parties it is gathered that there was a stipulation in the provisional letters of allotment dated 18.04.2006 and 20.04.2006 respectively  that the total cost mentioned is firm and non-escalable and includes cost of land, development, infrastructure, construction of unit, common portion and installation. However, Ld. Advocate for the Opposite Party No.3 referring to some  relevant documents has submitted that the units booked by the Complainants were complete in all respect and they have got completion certificate on  18.06.2010. On 21.06.2010 they wrote a letter to the Complainants to take possession of their respective Row Houses. However,  the Complainants did not take possession. Ld. Advocate for the OP No.3 has also submitted that by letter dated 21.10.2010 the Complainants were  requested to pay their dues within  60 days from the issuance of   such letter but the Complainants did not pay heed to the same. Thereafter, Opposite Party No. 3 issued another letter on 12.04.2011 requesting the Complainants to make payments and despite receipt of that letter the Complainants  refused to the outstanding amount or any portion thereof.

        In this regard, it would be worthwhile to record that the Opposite Party No. 3 was under obligation to handover the Row Houses positively by  30.12.2007 and after extension of grace period of six months those Row Houses should have been handed over to the Complainants by 30.06.2008. Admittedly, Opposite Party  No. 3 could not complete the construction within  the time frame. The Opposite Party No. 3 has also failed to produce the relevant documents relating to the facilities to be provided   to the allottees by them  as per terms of the agreement or the brochure issued by them. Certainly, as per terms of the buyer’s agreement the Complainants are liable to pay in respect of additionals spaces which has been increased subsequently by the Architect.

        Needless to say, the parties are bound by the terms of the agreement. Both the parties have signed the agreements with open eyes evaluating its pros and corns and therefore nothing can be added or detracted from the terms and conditions of the agreements.  Therefore, when the Opposite Party No.3 being developer has failed to explain the reasonable explanation for such a long delay for about 3 years on their part to handover possession to the Complainants, we have no hesitation to hold that the Opposite Party No. 3 being service provider was deficient in rendering services to the Complainants as per terms of the agreement.

        Accordingly, this point is also disposed of in favour of the Complainants.

Point No. 3

        On evaluation of materials on record and in view of our foregoing discussion we have no hesitation to hold that the Complainant is entitled to relief of execution and registration of the Deed, completion certificate and compensation for the mental agony and harassment suffered by them for long 10 years and also litigation costs as the Opposite Party No.3 was in deficient in providing services in accordance with provisional allotment letters issued by them. In our view, a compensation of Rs. 20,00,000/- and a litigation cost of Rs. 20,000/- would meet the ends of justice but at the same time the Complainants must pay the balance consideration amount and the amount as mentioned by the Opposite Party No.3 amounting to Rs.9,80,024/- and Rs. 11,24,867/- in their letter dated  09.05.2015 in terms of Buyer’s Agreement dated 02.07.2007. The Opposite  Party No.3 has committed an unfair trade practice by not informing the Complainants about  the Lease Deed at the time of issuance of provisional letter of allotment or at the time of receipts of part consideration amount. As there is no claim on the ground of unfair trade practice, we restrain ourselves from awarding any amount on that count.

        Accordingly, the point no. 3 is, thus, disposed of.

        In the result, case succeeds in part. It is, therefore,

ORDERED

        that the case is allowed on contest with costs of Rs.20,000/- to be paid by the Opposite Party in favour of the Complainants.

        The Opposite Party No.3 is directed to execute and register  sub- lease Deeds in respect of the  Row Houses in question in favour of the Complainants within 30 days after receipt of balance consideration amount and  Rs.9,80,024/- and Rs. 11,24,867/- as per  letter dated  09.05.2015 in terms of Buyer’s Agreement dated 02.07.2007.

        The Opposite Party No.3 is directed to make payment of compensation of Rs. 10,00,000/- each to the Complainants and also to make payment of Rs.10,000/- each as litigation cost to the Complainants within  30 days from date otherwise the Complainants shall have liberty to get the Award executed through this Commission.