In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.
Case No. CC/124/2017.
Date of filing: 17/05/2017. Date of Final Order: 19/12/2024.
Smt. Shyamali Kundu,
w/o Sri Manas Kanti Kundu,
r/o 221, Pearabagan Road,
PO & Dist. Hooghly, PS. Chinsurah, PIN. 712103. ……..complainant
vs -
- The proprietor of,
Sadhana Construction,
Represented by its proprietor
Sri Khokan Das,
s/o Late Krishna Kumar Das,
Gargari Para Road, PO Buroshibtala,
PS. Chinsurah, Dist. Hooghly, PIN. 712105.
- i) Sri Sonjay Mukherjee
ii) Sri Swarup Mukherjee
iii) Sri Sanchit Mukherjee
all are son of Sri Sunil Mukherjee
represented by their constituted attorney
Sri Khokan Das,
s/o Late Krishna Kumar Das,
Gargari Para Road, PO Buroshibtala,
PS. Chinsurah, Dist. Hooghly, PIN. 712105.……opposite parties
Before: President, Shri Debasish Bandyopadhyay.
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 complainant stating that The OP-2(i), 2(ii) and 2(iii) desired to construct a multi-storied building on the said land and accordingly they appointed OP-1 as developer, to agree to construct multistoried building providing residential flats, car parking spaces / garage and commercial spaces with the intention to sell out the same to the intending purchaser against consideration vide registered Development agreement was executed on 25.2.2016 and registered on 2.3.2016 in the office of District Sub Registrar Chinsurah, Hooghly in Book no.1, C.D volume no.603 pages from 23905 to 23924 being no.1332 for the year 2016 with the terms and conditions as specified therein. The OP-2 executed a general power of Attorney in favour of Sri Khokan Das son of Late Krishna Kumar Das as well as the proprietor of Sadhana Construction or OP-1 for the purpose of construction of Multi-storied building flats, car parking and commercial spaces etc and also to execute and register of sale agreement and sale deed etc. in favour of intending purchaser and to receive the earnest money and total sale consideration money from them. The said power of Attorney was registered in the office of Additional District Sub Registrar Chinsurah, Hooghly in Book no. I C,.D. volume no.603 pages from 24340 to 24356 being no.1341 for the year 2016. The plan was sanctioned for the such projects from the Hooghly Chinsurah Municipality and on the strength of the approved plan the OP-1 started the proposed construction and partly completed five storied (G+4) building under the name and style of “GOURIKUNJ APARTMENT”.
The complainant alongwith her son booked one flat being no. C/3 on the second floor having super built up area of 725 per sq. ft. at a total consideration of Rs.13,05,000/- as they have not any flat for their own and been residing with other family members on rent @ Rs.2500/- per month. The complainant alongwith her son applied and thereafter disbursed a home loan being loan a/c no.211900001430 from LIC Housing Finance Ltd. Chinsurah branch amounting to Rs.11,00000/- for purchase of the above said flat and handed over all the disbursed loan amount to the OP-1 as per agreement. The complainant has paid Rs.13,31,000/- to the OP-1 which includes actual cost of transformer but as not yet been installed by the OPs till to date. At the time of making payment of booking money and other amounts the complainant entered into an agreement to sale with the developer was registered in the office of the Additional District Sub Registrar Chinsurah, Hooghly in Book no.1 Volume no.0603-2016 pages from 36238 to 36272 being deed no.060302007 for the year 2016.
The complainant after making payment of the major portion i.e. an amount of Rs.13,31,000/- requested the developer to execute the deed of conveyance on receiving the balance consideration money if any remaining according to law before expiry of 09 months as mentioned in page no-5 in the above said agreement to sale but there was no response from the OPs. The complainant for not getting any response from the Ops sent her written Appeal dated 9.1.2017 to the OP-1 with a request to complete final sale deed registration by furnishing completion certificate as well as providing possession of the flat and copy of the said letter dated 9.1.2017 also forwarded to the OP-2 and home loan provider LIC Housing Finance Ltd. Chinsurah Branch for information and necessary action.
In response the OP-1 sent his written reply dated 8.3.2017 through his ld. advocate and advised to pay the excess amount in respect of excess area subject to cross check by the surveyor as well as also requested to pay Service Tax to him. In response to the above said advocates letter of reply the complainant again sent her letter of request dated 18.3.2017 to the OP-1 and copy of the same are forwarded to the Op-2 and LIC Housing Finance Ltd. Chinsurah branch for information and necessary action and humbly prayed before the OP-1 for the completion certificate of the flat from the Architect as mentioned in clause 3.0 in ARTICLE-III of the agreement to sale being no.060302007 for the year 2016 registered in the office of ADSR, Chinsurah, Hooghly. The complainant is also ready to pay service tax amount if any payable by her according to law and requested the OP-1 by the letter of request dated 18.3.2017 for pro-forma invoices charging service tax amount separately or specifically and also requested to furnish her the break ups of the service tax calculated in her case but no reply yet has been received by the complainant till to date.
Complainant filed the complaint petition praying direction upon the opposite parties to produce and furnish actual cost of transformer, service tax amount with valid in-force service tax registration no. and to execute and register the deed of conveyance jointly and severally mentioned in the 3td schedule of property i.e. The Unit to be Transferred after furnishing completion certificate of the flat by the approved architect as mentioned in the clause 3.0 in Article-III in the agreement to sale being no.060302007 for the year 2016 registered in the office of ADSR, Chinsurah, Hooghly and to pay a sum of Rs. 250000/- for physical strain and mental agony and to pay a sum of Rs.25000/- for legal and other expenses.
Defense Case:- The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the pro opposite party nos. 2(i), 2(ii) and 2(iii) as being owner of the schedule mentioned property have decided to develop the schedule mentioned property and for that reason a development agreement was executed on 25.2.2016 and registered on 2.3.2016 at D.S.R. offices Hooghly with the proprietor of Sadhana Construction vide no. 1332 for the year 2016 and also executed and registered a general power of attorney in favour of op no. 1 vide being no. 1341/2016. The op no. 1 thereafter obtained a sanctioned building plan from H.C.M. and constructed Gurukunj Apartment. Being the intending purchaser of the flat the complainants have undergone a registered agreement of sale with the ops vide no. 2007/16 registered before A.D.S.R. Hooghly and till date the complainants have paid to the op no. 1 Rs. 12,76,000/- out of the agreed consideration amount of Rs. 13,05,000/- for C/2 flat at Gourikunj Apartment. Apart from the aforesaid payment the complainants have also paid Rs. 55,000/- on 16.9.2016 for installation of transformer and for making collapsible gate at flat no. C/3.
At the time of final measurement it was found that the covered area of C/3 flat became excess by 27 sq.ft. than that of 725 sq.ft. as per registered agreement dt. 31.3.2016 vide being no. 2007/16. Therefore as per article III point 3 of the registered agreement vide no. 2003/16 the op no. 1 is entitled to get the price of the excess area of 27 sq.ft. @ Rs. 1800/- amounting Rs. 48,600/- and as per Article V point 5.4 the op no. 1 is also entitled to get the service tax and all other taxes, levies and charges to the vendors/ developers according to Central Govt./ State Govt./ Statutory body Rules and Regulations and the op no. 1 received a letter dt. 9.1.17 from the complainant in which she categorically requested the op no. 1 to arrange to hand over the flat in question by furnishing completion certificate and also to hand over possession of the said flat and to acknowledge her regarding the tentative date of registration and in reply of letter dt. 9.1.17 the op no. 1 through his ld. Advocate sent a reply of the same by demanding services tax and money for the excess/ extra area which has been allotted in C/3 flat of Gourikunj Apartment and in the said reply letter ld. Advocate on behalf of op no. 1 further gave liberty to the complainant to bring her own surveyor to measure the C/3 flat for ascertaining its area. Again the complainant gave another letter on 18.3.2017 to the op no. 1 demanding a detail or break up of the service tax calculation and also demanded a certificate from architect regarding area of her flat and in reply of letter dt. 18.3.17 the op no. 1 through his ld. Advocate sent the reply on 20.5.17/ 12.7.17 which the complainant has duly received on 13.7.2017. The op no. 1 has already applied for completion certificate before the authority of Hooghly Chinsurah Municipality but yet to receive the same.
As stated in the earlier that op no. 1 has already deposited Rs. 8,23,302/- before the Pipulpati Customer Care Centre of WBSEDCL for installation of transformer on 4.4.17 as per quotation memo no. 5001549537 but the transformer is yet to be installed by the WBSEDCL due to non availability of the same. In this context the op no. 1 has already submitted a representation before the station manager, WBSEDCL, Pipulpati CCC seeking permission of him to install the same from purchase of an outsider subject to adjustment of balance amount if any and the same was submitted on 31.8.2017 and the op no. 1 is always ready and willing to perform his part of agreement (to execute the sale deed in favour of the complainant subject to payment of Rs. 1,38,512/-. So it is needless to mention that there is no deficiency of service on the part of the op no. 1. So, the instant case should be rejected with cost.
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 party 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 party 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 party 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 Chinsurah, Hooghly which is lying within the territorial jurisdiction of this District Commission. The OP No-1 is carrying on business at Chinsurah, Hooghly. Moreover, this complaint case has been filed with a claim of below 50 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, 1986 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, 1986. 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 complainant agreed to purchase flat at the Gurukunj Apartment and in this regard the complainant has paid major amount of consideration money in favour of the OP-1 but the OPs have not executed and registered any deed of conveyance in favour of the complainant after taking balance consideration amount on the pretext that the cost of additional work and GST charges / service tax have not been paid by the complainant to the OP-1. On close examination of the evidence on record it is revealed that the complainant is interested to purchase the flat at the above noted apartment and OP-1 is also willing to sell the said flat to the complainant. On this background this District Commission finds that the execution and registration of the sale deed have not yet been done on the reason that the complainant has not paid the cost of additional work and GST/ service charges in respect of the registration work. When both parties are ready for execution and registration of the deed of conveyance and to abide by the terms and conditions of the agreement for sale, this District Commission finds no bar in the matter of execution and registration of the sale deed in respect of the flat mentioned in the schedule of the complaint petition.
A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration but in part.
In the result it is accordingly
ordered
that the complaint case being no. 124 of 2017 be and the same is allowed on contest but in part.
OPs are directed to execute and register the sale deed in respect of the flat mentioned in the schedule of the complaint petition after receiving the cost of additional work, GST/ service charges from the complainant within two months from the date of this delivery of judgment. Complainant is also directed to pay the cost of additional work, GST charges/service charges in respect of the registration to the OP-1 within 60 days from the date of this judgment positively. Failing which both parties 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.
