| District Consumer Disputes Redressal Commission |
| South 24 Parganas |
| Baruipur, Kolkata-700 144 |
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| BEFORE: | |
| SHRI ASHOKE KUMAR PAL PRESIDENT | |
| SHRI PARTHA KUMAR BASU MEMBER |
| PRESENT: |
| Final Order / Judgement |
Sri Partha Kumar Basu, Member The instant consumer case has been instituted by the complainant u/s 12 of the Consumer Protection Act, 1986 against the Opposite Party no 1 and 2 and also OP 3 (since amended as per petition dated 14.01.2019) praying for reliefs like physical possession and registration of a covered car parking space/covered garage/commercial unit/shop along with compensation and cost etc. The brief facts of the case as averred by the complainant in his complaint, amended complaint and evidence are that the complainant entered into an Agreement for sale dated 30.12.2011 with the OP1 developer to sell a covered car parking no 3 /covered garage/commercial unit/shop at holding no. 355, Purbapara, Laskarpur, Ward No. 29 (now 31), of Rajpur, Sonarpur Municipality under P.S-Sonarpur, Kol-700153, Dist-24Pgs (South) admeasuring about 111 Sq.ft. and the O.P.1 received a consideration money of Rs. 1,24,586/- and Rs. 1,00,000/- on different dates through several cheques. Originally a development agreement dated 11.10.2010 was executed between land owner OP2 and developer OP1 under certain terms and conditions embodied therein and a registered Power of Attorney was also executed by O.P.No.2 in favour of O.P.No.1. An agreement for sale dated on 30.12.2011 was executed between the complainant with the OP1 developer and the OP2 landowner through the OP1 as her POA holder with a promise to handover the scheduled property within 18 months of the sale agreement. As per instruction of the OP1, the Complainant purchased N.J. stamp paper of Rs. 5,000/- on 03.10.2013 for registration of the deed of conveyance. But the O.P.1 did not register the deed of conveyance within 18 months of the agreement i.e. by 30.06.2013. The complainant sent a lawyer’s notice on 02.09.2013 asking to handover the possession and registration of the covered car parking/covered garage/commercial unit/shop in favour of the complainant. Due to the act of the O.Ps , the complainant has been suffering from mental injury and filed the instant complaint case before this commission praying for direction upon the O.Ps to deliver the physical possession of the schedule car parking/covered garage/commercial unit/shop in complete habitable condition as per agreement dated 30.12.2011 for permanent injunction restraining the O.Ps from transferring / alienating the said car parking space to any third party, for execution and registration of the deed of conveyance in favour of the complainant in respect of schedule mentioned property along with compensation of Rs. 10,00,000/- and a cost of Rs. 5,00,000/- as per amended complaint. In their W/V and evidence, OPs contested on the ground that the delay in handing over possession happened due to the complainant filing another complaint before local municipal authorities against conversion of the suit property from car parking space towards commercial usage which was within full knowledge of the complainant. But the complainant never made full payment by paying the differential of Rs. 1,86,280/- (being paid actually Rs 1,24,520/- instead of Rs 1,24,586/-) in compliance of the sale agreement . Further, it was contended by OP1 that during the process of conversion of the suit property being garage space to commercial space (shop) with an increase of space from 111 Sq.ft to 160-170 Sq.ft, the complainant defaulted to pay the extra amount for such conversion in compliance of the contract. In the BNA, the OP1 also contended that being the suit property a commercial one and in absence of mention of such services obtained from the OPs by the complainant exclusively for the purpose of earning livelihood by means of self employment by the complainant, this complaint does not qualify as a consumer as per provisions of the Consumer Protection Act. The arguments as advanced by Ld. Advocates of both the sides were heard in full on 29.11.2023 , records and documents perused and considered. On perusal of the case record along with the copies of exhibited documents, it appears that as per Sale agreement dated 30.12.2011 executed between complainant and the OP1 and the OP2 through constituted attorney i.e. OP1, the complainant agreed to purchase one covered car parking space / covered garage admeasuring 88.89 Sq.Ft by paying Rs.30,000/- as initial payment against a full consideration money @ Rs. 1400/- per Sq.ft. for total 88.99 Sq.ft. totalling to Rs. 1,24,586/- (Cl 5, page 8 of sale agreement dated 30.12.2011) with a covenant that if the said scheduled property could be converted to Commercial space / Shop after due compliance of acts rules and systems of the local authorities, then the full consideration money working out to be @ Rs. 2800/- per Sq.ft. for a super built up area of 88.99 Sq. Ft (X) 25% of 88.89 Sq.ft = 111 Sq. Ft. totalling to Rs. 3,10,800/- which the purchaser has to additionally pay (Cl. 21). It was also agreed that in case of failure by either the intending purchaser cum complainant to make full payment or the OP1 developer to handover possession within 18 months from the date of agreement .i.e 30.06.2013, a penal interest @ 18% will get accrued to either side till compliance. The original complaint petition dated 19.05.2014 was amended vide amended petition dated 14.01.2019 by adding OP3 as party as per Order no.26 dated 13.07.2016 of this commission. The complainant alleged that the OPs entering into a backdated sale agreement dated as 23.11.2011 unauthorisedly for transfer of possession of the suit property, challenging which the OP3 filed another complaint case no CC/37/2016 before DCDRC – Kolkata III against the OP1 and OP2 and thereafter as per final order dated 25.02.2016 from the said district commission, the OP3 got the suit property registered on 20.06.2016 at ADSR, Garia (page 8, sl 23 of amended complaint). The Schedule ‘B’ in the registered deed dated 20.06.2016 between OP1 being POA holder of OP2 and OP1 himself and the OP3 matches exactly with the instant complaint case in hand. It is an admitted fact by the OP1 that the suit property has been transferred by OP1 to OP3 as per Order dated 25.05.2016 from DCDRF, Kolkata – III and so the OP1 developer filed MA/287/16 dated 04.11.2016 expressing willingness to refund back the money taken from complainant alongwith bank interest. Further, as per exhibited money receipts, it appears that a total amount of Rs.1,24,586/- was paid by the complainant to the OP. No cogent document about the payment of another Rs.1,00,000/- is made available by the complainant in support of his claim in complaint petition. From the exhibits it also appears that completion certificate has been issued by the competent authority on 05.05.2014. As per advocate commissioner’s report dated 12.05.2016 the total area of the commercial unit/shop/ garage was found to be 115.02 Sq.ft in presence of both sides, which may be deemed to be more or less nearer to the quantum of the scheduled property measuring 111 Sq.ft. as per agreement dated 30.12.2011. The OP1 also raised objection of maintainability stating that the complainant intended to purchase the shop which is for commercial purpose and hence the complaint does not fall within the purview of Section 12 (1) (c) of the Consumer Protection Act, 1986 and so the complaint is not maintainable and liable to be dismissed. As far as argument of the opposite party that the complainants are not consumers as they have booked the suit property for commercial purpose is concerned, Supreme Court in Kavita Ahuja vs. Shipra Estates I (2016) CPJ 31, observed that the onus of establishing that the Complainant was dealing in commercial activities in his normal course of business to earn profits, shifts to the Opposite Party, which the Opposite Party has failed to discharge by filing any evidence. As per covenants of the sale agreement dated 30.12.2011 between complainant and OPs, the agreement was meant for purchasing a garage space at it’s first place, when the booking money was advanced by complainant primarily on that basis. Hence the argument that the complaint does not fall as per definition of a consumer of the Consumer Protection Act, 1986 does not hold good at all. We have considered the arguments of counsel for both the parties. Booking of the suit property, deposit of the respective amount by the complainant is not disputed by the opposite parties. The Hon’ble Supreme Court in Fortune Infrastructure & Anr. v. Trevor D’Lima & Ors., (2018) 5 SCC 442, held that a person cannot be made to wait indefinitely for possession of the property allotted to him/her, and is entitled to seek refund of the amount paid by him, along with compensation. From the sale agreement dated 30.12.2011, it appears that the OP1 developer has entered into an agreement as developer as well as POA holder on behalf of the landlady OP2 and all the payments were taken and money receipts were issued by the OP1 developer from the complainant. So the OP1 is bound to comply with the terms and conditions of the said agreement and liable for the deficiency in services. The Consumer Protection Act is a law of torts when a tort is a civil wrong, which causes damage and results in legal liability for negligence or tortuous intent. If the claimant is able to prove that the tort occurred and that the defendant was responsible, then defendant is liable to compensate the damage. During adjudication in the case in hand, it got unfolded that the suit property has already been alienated to third party by another court order. Hence there is no other remedy available to the petitioner before this commission except to seek compensation, cost or refund. However the complainant is always at liberty to approach any alternative forum for any other civil remedy. So the complaint case succeeds in part. Hence, it is ORDERED That the instant case be and the same is hereby allowed on contest against the OP1 developer with cost of Rs. 25,000/-(Rupees twenty five thousand only). The O.P1 developer is also liable and is directed to refund Rs. 1,24,586/- (Rupees One lac Twenty Four Thousand Five Hundred and Eighty Six) only along with a simple interest @ 9% per annum with respective dates of payments till the date of final realization thereof. The OP1 developer is liable and also directed to pay the litigation cost of Rs. 25,000/-(Rupees twenty five thousand) only. The entire decreetal amount is to be paid within 60 days from the date of passing of this Order, in default a simple interest @ 12 % will accrue till realisation. Interim order, absolute or extended be any before this bench, stands vacated. The complainant is at liberty to put the order into execution after the expiry of 60 days in case the orders are not complied with by the OP1 within 60 days from the date of passing this Order. Ld. Member Smt. Shampa Ghosh joined today on 12.12.2023 and did not take part in the hearing of argument of this case and as such, she did not sign the Judgement. Let a copy of the order be sent / supplied free of cost to the parties concerned. The Final Order will be available in the following website www.confonet.nic.in. Dictated and corrected by me.
Member |
| [ SHRI ASHOKE KUMAR PAL] |
| PRESIDENT |
| [ SHRI PARTHA KUMAR BASU] |
| MEMBER |
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