Before
the Hon’ble State Consumer Disputes Redressal Commission, West Bengal, at
Premises being no. 11 A, Mirza Ghalib Street, Kolkata-700087.
Consumer
Complaint no. CC/291/2019
In the matter of :
Shri Uttam Bose,
___Complainant
- Versus –
Smt. Shyamali Paul, and Others,
______Opposite
Parties
Brief
Notes of Argument
On behalf of
The Complainant
ARGUMENT ;
The
relationship of the landlord and tenant which was earlier between the parties
ceased to exist after the execution of the agreement between the complainant
and the respondents, there was a new relationship of flat purchaser and the
Builder/ Developer. When a tenant hands over the property on the basis of an
agreement relying on the promise that the builder would hand over a portion of
the property in lieu of handing over of the possession, the same would be
termed as consideration paid by the complainant to the Respondent. The handing
over of the constructed premises would be consideration and as such the
complainant would be a consumer within the meaning of Section 2(1)(d) of the
Act and failure to provide the flat by the respondents is a deficiency in
service.
(1) Jagdishbhai M. Sneth alias Soni
Versus Surbhih Realtors India Private Limited, NCDRC, New Delhi, Revision
Petition Nos. 2589-2590 of 2008, held on 24 April’ 2012;
(2) Regional Provident Fund
Commissioner Versus Shiv Kumar Joshi, III (1989) CPJ 36 (SC);
(3) Sonia Bhatia Versus State of
U.P. & Ors., 1981 (2) SCC 585;
(4) Ghansi Ram Lal Shah Versus
Supriya Suhas Sarmalkar & Ors, decided on 06.09.2011, in R.P. No. 337/11,
by the Hon’ble NCDRC, New Delhi;
LIST OF DATES;
|
Sl. No. |
Date |
Particulars’ |
|
01 |
2009 |
Agreement
between the complainant and the respondent no. 1, 2, and 3; |
|
02 |
05/10/2010 |
Agreement
between the Contractor and the Owners; |
|
03 |
17/06/2017 |
Letter
by complainant; |
|
04 |
2017 |
Letter
by complainant; |
|
05 |
22/08/2017 |
Letter
by Respondent no.1; |
|
06 |
11/09/2017 |
Reply
by Complainant; |
FACT ;
1.
That
the Respondent no.1, Smt. Shyamali Paul, the Respondent no. 2, Shri Sushil
Poddar, and the Respondent no.3, Sushma Poddar, are the Joint Owners in respect
of the piece and parcel of homestead Land admeasuring an area 3100 Sq. ft. more
or less and premises together with more than 100 years old constructed brick
built two storied building ( all tenanted ) standing thereon lying and situated
at being Premises no. 66B, Manicktolla Street, presently known as Sisir Bhaduri
Sarani, Municipal town of the Kolkata comprised in Holding no. 122, Block – 14,
Ward no. 27, Kolkata – 700 006, Police Station – Amherstreet, in the North
Division of the town of Kolkata under whom and in which premises on the ground
floor, consisting of one Flat, Shri Uttam Bose, is a monthly tenant at the said
premises being no. 66B, Manicktolla Street, presently known as Sisir Bhaduri
Sarani, Kolkata – 700 006, Police Station – Amherstreet.
2.
That
the Respondent numbers 1 to 3, jointly decided to demolish the exisisting
structure at the said Premises 66B, Manicktolla Street, presently known as
Sisir Bhaduri Sarani, Municipal town of the Kolkata comprised in Holding no.
122, Block – 14, Ward no. 27, Kolkata – 700 006, Police Station – Amherstreet,
in the North Division of the town of Kolkata, which includes of present
tenanted portion of the complainant, herein Shri Uttam Bose. The said Shri
Uttam Bose is a monthly tenant at the Ground Floor measuring about 702.67 Sq.
ft. more or less at a monthly rent of Rs. 420/- ( Rupees Four Hundred and Twenty
) only.
3.
That
the Respondents number 1 to 3, being the co-sharer and joint Land Owners of the
Schedule Property, was intend to construct a new multi storied building thereon
according to Sanctioned Building Plan of the Kolkata Municipal Corporation, and
accordingly the Respondent numbers 1 to 3, approached the Complainant, herein
with specified proposal as of the Respondent numbers 1 to 3, herein shall
construct the proposed multistoried building at their own cost and also
transfer the right, title, and interest of the property morefully detailed in
the Schedule “A” in the Agreement made in the year 2009, in favour of the
Complainant herein, without any monetary consideration i.e. at Free of Cost and
a Deed of Gift / Deed of Conveyance will be prepared and also registered in
favour of the Complainant, herein. The said Deed will be registered after
obtaining the clearance certificate (C. C.) from the Municipal Authority
concern.
4.
That
it is pertinent to states that the Respondent numbers 1 to 3, herein and the
Complainant agreed in terms of the said Agreement made in the year 2009, that
at the time of handover of the possession of the schedule “A” property therein,
the complainant shall surrender his tenancy right, in favour of the respondent
number 1 to 3, herein, and on the other hand against such surrender the
respondent number 1 to 3, must transfer the right, title, and interest of the
property in terms of the schedule “A” morefully describe in terms of the
agreement made in the year 2009, In favour of the complainant, herein, through
proper registered Deed of Gift / Deed of Conveyance, whichever is necessary.
5.
That
the said Agreement made in the year 2009, contain the following necessary terms
between the Respondent number 1 to 3, herein and the Complainant, which are as
follows :
a) At Page number 4, Paragraph
number 4 – That the newly constructed room to be handed over to the tenant by
the landowners as “A” schedule of the property i.e. Tenanted portion shall be
fitted with doors, windows and electric lines and fittings, floorings and
ceiling and plastered and whitewashed parish finished walls with safety and securely
gates together with all facilities enjoyed in respect of the said tenancy.
b) At Page number 5, paragraph
number 5 – During the time of construction of the proposed Multistoried
building at premises being No. 66B, Manicktolla Street, presently known as
Sisir Bhaduri Sarani, Kolkata – 700 006, the Landlord shall at his own cost /
expenses, make separate and also suitable accommodation for the said tenant /
proposed purchaser herein, till the handover of the possession of the property as
described morefully in the “A” Schedule, to the said tenant / proposed
purchaser.
c) At page number 5, paragraph
number 6 – the tenant shall be entitled top sue the landlord or to have
suitable compensation from the landlord or to take necessary legal steps
against the landlord, if there will be any in fault in the activity / statement
of the landlord or there will any obstruction in having possession of the
property as morefully described in the schedule “A”, by tenant or there will be
any delay in returning back the tenant, his tenancy right / proposed ownership
right by the landlord in time.
d) At page number 5, “A” Schedule
of the Property – ALL THAT the one residential Flat including 2 Bed rooms, one
drawing room one kitchen and toilet and bath room on the 2nd floor
measuring an area of 702.67 sq. ft. more or less carpet area over the piece and
parcel of land hereunto belonging whereof the same is erected and built
containing by estimation and area of 4 Cottahas, 8 Chhittacks, 7 sq, ft. ( 3100
Sq. ft. ) more or less together with all present rights common facilities and amenities
attached thereto situate and lying at Premises being No. 66B, Manicktala Street
present known as Sisir Bhaduri Sarani, Kolkata – 700 006, Police Station
Amherstreet, Ward no. 27, within the local limits of the Kolkata Municipal
Corporation.
6.
That
the Respondent no.4, Smt. Chandana Bose, Daughter of Late Santi Ranjan Das,
residing at premises no. 66B, Manicktolla Street ( presently known as Sisir
Bhaduri Sarani ), Police Station Amherstreet, Kolkata 700 006, is a Contractor,
with whom the Respondent no. 1 to 3, entered into an Agreement for construction
of 4 ( four ) storied building at the premises no. 66B, Manicktolla Street (
presently known as Sisir Bhaduri Sarani ), in the municipal town of Kolkata,
comprised in Holding no. 122, Block 14, Ward no. 27, Kolkata – 700 006, Police
Station Amherstreet, consisting of several flats, extra space, etc. according
to the sanctioned plan obtained from the Kolkata Municipal Corporation
authority bearing Sanction plan no. Permit no. 18, dated 08.07.2010. The
Respondent no. 1 to 3, entered into such agreement with the Respondent no.4, as
on 5th day of October’ 2010.
7.
That
the Agreement dated 5th day of October’ 2010, contained the
following terms between the Respondent nos. 1 to 3, and the Respondent no. 4,
therein :
a) At Page no. 4 – paragraph
number 5 – the said Contractor shall build and completely finish and make the
said construction of 4 storied building as mentioned herein on or before the 4th
day of March’ 2012 ( 18 months ) unless prevented by any Labour, strike, fire,
accident, mob violence, earth quake, attack from the air or any other major
disturbance which shall beyond the control of the contractor.
b) At Page no. 4 – paragraph
number 6 – the owner shall build the said construction, under his direct
personal supervision and in the best worksman like manner and shall be
empowered to employ a sub-contractor for completing any portion thereof.
c) At Page no. 4 – paragraph
number 8 – within 18 months of the completion of the said construction, the
owner shall pay to the contractor, such balance amount as he may then be
entitled to according to the terms of this contract upon scrutiny of all his
bills.
d) At page no. 4, paragraph number
9 – In case the owner shall desire for, any additional work or works to be done
or executed, in the said construction, the contractor shall duly execute such
additional work in a proper substantial and workman like manner, in all respects
according to such altered plans, if any and within the time prescribed or any extension thereof
as may be mutually agreed and to the satisfaction of the owner. The additional
costs of such additions, if any shall be estimated and paid by the owner to the
contractor accordingly.
e) At Page no. 5, paragraph
number 10 – The owner shall be entitled
to determine this agreement, if the contractor neglects to complete the work or
suspend the same or delay the progress thereof without any reasonable causes or
refuses or persistently neglects to make good the defective work, if any. On
the other hand in cases of termination / determination of this agreement, the
contractor shall be entitled to the moneys, unpaid on settlement of the account
between the both parties and scrutiny of all bills.
f) At Page no. 5, paragraph number
11 – In case any dispute or difference shall arise between these parties,
during the progress of or after construction or abandonment of the work as to
the measuring of construction of this contract or to any matter arising
directly or indirectly under this contract then the same shall be referred to a
common arbitrator, selected by both parties and the final decision of the
arbitrator shall be binding on both the parties.
g) At page no. 5, paragraph number
12 – Although, in case if the said dispute or difference will not solved, even
by the interference of an arbitrator, then it will be decided, according to the
provisions of the Indian Contract Act’ 1872.
8.
That
the Complainant vacated his tenanted portion premises, in terms of the said
Agreement made in the year 2009, and whereas the Respondent no. 1 to 3,
obtained Sanctioned Building Plan being Plan permit number 18, dated
08.07.2010, from the Kolkata Municipal Corporation, and entered into an
agreement with the Respondent no.4, for Construction, and whereas 18 ( Eighteen
) months has already been expire even if the date of agreement with the
contractor being the respondent no. 4, herein, though the respondents did not
hand over the physical possession, and did not arrange for the execution and
registration of the Deed of Conveyance in favour of the Complainant, herein.
9.
That
on inspection, the Complainant found that the proposed building premises
completed in such manner though the flat as subjected for the Complainant has
not been completed yet, and therefore the Complainant time and again, very
often visited to the Respondents, and requested for completion at the earliest
and whereas the respondents all along assured but did not adhere to the same
and therefore they did not complete such subjected flat for the Complainant and
thus the said subjected Flat still lying incomplete in the said proposed
building premises.
10.
That
the Respondents did not arrange any accommodation and did not pay any rent for
accommodation to the Complainant, since the day of vacating the tenanted
portion premises in terms of the Agreement made in the year 2009, and therefore
the Complainant suffering with payment of rent per month as he assailed
alternate rented accommodation in terms of the said agreement with the
respondents, herein. The Complainant incurred rent as of Rs. 6,00,000/- (
Rupees Six Lakhs ) only, till the day of placing this application.
11.
That
the Respondent no. 1, herein Smt. Shyamali Paul, having her address as of
premises being no. 13U, Ariff Road, Kolkata – 700 067, replied the letter of
the complainant dated 22-07-2017, through her letter dated 22nd day
of August’ 2017, which contend inter alia as “ I have earlier time and again
informed you to take possession of the flat without making any delay” and
further as “ I request you not to become more and more anxious rather to take
care to receive possession of the said flat after satisfying your other
statutory liabilities and formalities”. Whereas the said residential flat has
never been completed at the said premises and at the second square the market
value in such long tenure has been increased by the Directorate of Registration
and Stamps Revenue and therefore Consequentially the Stamp Duty and
Registration charges has been enhanced, in terms of the facts and circumstances
as lying with the Directorate of Registration and Stamps Revenue, West Bengal.
12.
That
the Complainant solely seeks to get his Residential Flat which have market
valuation as ascertained by the Directorate of Registration and Stamp Revenue as
of Rs. 76,48,861/- ( Rupees Seventy Six Lakhs Forty Eight Thousand and Eight
Hundred Sixty One ) only, from the Respondent numbers 1 to 3, herein.
DOCUMENTS;
That the Complainant relying on
the following documents :
a) Agreement with the Respondent
number 1 to 3, made in the year 2009;
b) Agreement dated 5th
day of October’ 2010;
c) Letter of Complainant to the
Respondents;
d) Letter of Respondents to the
Complainant;
e) Market Valuation report of the
Directorate of Registration and Stamp Revenue;
DURING
PROCEEDING;
(i)
The
Respondent no.1, Shyamali Paul, appeared submitted her Written Version, and put
forward her questionnaire to the Complainant; But failed to place her Evidence
on Affidavit, even after availing sufficient Opportunity;
(ii)
The
Other Respondents did not appear in the Consumer Proceeding;
CONCLUSION;
The
Complainant is entitled to get relief in terms of his prayer, made in the
petition of Consumer Complaint before the Hon’ble Commission;
=========================XXX============================
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