AI Structured Summary
Not yet generated for this judgment
Judgment
Subhash Chandra, Presiding Member
This joint complaint has been filed by the co-owners of premises no.630, Block O, New Alipore, PS, New Alipore, Kolkata 700 053, West Bengal, who had on 22.0.2010 entered into a development agreement/ JV agreement with the opposite party to demolish the existing building and construct apartments of which certain portion would be allocated to the complainants as per the said agreement. The complainants have approached this Commission alleging delay in execution of the project and handing over of the apartments along with various other construction deficiencies which they rectified at their own costs as well as in not providing necessary security to the premises as agreed. The complainants are before this Commission with the following prayers:
a. Admit the complaint filed by the complainants;
b. Grant the reliefs and claims as prayed for in the paragraphs 54 to 58 under the schedule of claim as aforesaid;
c. Award interest @ 18% per annum on the aforesaid claims made in paragraph 54 to 58 under the schedule of claim from the date of handing over of the possession of the owner’s share as described in the agreement;
d. Direct the opposite party to pay compensation @ Rs.5,00,000/- to each of the complainants towards damages for mental tension and agony and harassment suffered by the complainants;
e. Direct the opposite parties to pay to the complainants a sum of Rs.3,00,000/- towards cost for filing this complaint;
f. Direct the opposite parties to pay the interest pendent – lite and future interest @ 18% per annum on the total awarded amount; and
g. May pass any other or further order, as this Hon’ble Commission may deem fit and proper in the interest of justice.
The case of the complainant is that as per the development agreement/ JV agreement, the opposite party was to construct the building and hand over the flats to the complainant as per the owners allocation within 24 months with grace period of six months from the date of agreement. As per clause 4.1 and 4.2 the responsibility of the construction as per the approved sanctioned plan and specification along with facilities was that of the opposite party developer who was to pay Rs.30 lakhs to the complainant in two equal instalments of Rs.15 lakh on signing of the agreement and taking vacant possession of the premises after obtaining the approved sanctioned plan from the Kolkata Municipal Corporation (KMC) (clause 1.20 of the construction time). The penalty for the delayed construction was Rs.10,000/- per day as per the agreement. The opposite party obtained the sanctioned building to the plan on 17.08.2010 and was required to complete the construction by 01.03.2013. The complainant states that the project was completed on 28.06.2013 when the completion certificate from KMC was obtained and possession of the flats was handed over on 01.02.2014 (as per clause 27 of the security agreement). According to the complainants there was a delay of 337 days and, therefore, the opposite party was liable to pay Rs.33,70,000/- for the delay as compensation. In addition, it is stated that the security on the premises was discontinued by the opposite party with effect from 01.11.2014 till 31.01.2015 which, as per clause 27, was to be paid for by the opposite party. A sum of Rs.55,800/- @ Rs.18,600/- per month has been claimed by the complainants.
The complainant also submits that the opposite party has failed to provide various facilities/ amenities, as per clause 24 of the agreement in certain flats for which a sum of Rs.2,65,000/- has been claimed for various items in different flats.
The complaint was resisted by way of reply by the opposite party. The allegations were denied and it was contended that since the owners have been permitted to undertake commercial developments, the complaint was not maintainable under the Act. It was also contended that in view of the clause of arbitration in the agreement, this Commissions lacked jurisdiction to entertain it. It was, therefore, prayed that the complaint be dismissed.
Both sides filed their evidence and short synopsis of arguments.I have heard the learned counsel for the complainants. However, the opposite party was proceeded ex parte vide order dated 04.05.2023 as they continued to remain unrepresented despite being served.
Complainants argued that as per the pecuniary jurisdiction of this Commission, the complainant was admissible in terms of this Commission’s judgment in Ambrish Kumar Shukla vs Ferrous Infrastructure Pvt. Ltd., 2016 SCC Online NCDRC 1117. It was also argued that as held by the Hon’ble Supreme Court in Faqir Chand Gulati vs Uppa Agencies Pvt. Ltd, and Anr. (2008) 10 SCC 345, the complainants were ‘consumers’ under the Consumer Protection Act, 1986 as well as the judgment in Bunga Daniel Babu vs M/s Sri Vasudeva Constructions and Ors., Civil Appeal no.944 of 2016 decided on 22.07.2016.
The opposite party continued to remain absent despite a final opportunity granted to argue the matter. However, we have considered his evidence as his final arguments. The opposite party in their evidence relied upon clause 6.1/7.1 of the agreement dated 22.02.2010 which clearly states that the owners shall permit or allow the developer the exclusive right to commercially exploit the said premises by causing residential building to be constructed at its own cost on the said premises. The opposite party further states that petitioners vide their letters dated 23.10.2013 and 30.10.2013 mentioned various discrepancies with respect to the premises, but the complainants never brought up the issue of delay done in handing over the possession of the premises. The opposite party further submits that in the complaint that delay in possession it was raised for the first time by the complainants before this Commission. It was further stated that as per clause 3.1 of the agreement dated 22.02.2010 opposite party had been granted exclusive right for construction of the building within a period of 24 months with a grace period of 6 months, i.e., 30 months from the date of sanctioned plan or the date of delivering possession of the land. The vacant possession was delivered on 01.10.2010. It was further stated that the construction of the building was completed within the stipulated period of 24 months, i.e., by 01.09.2012 and, thereafter, the opposite party applied for the completion certificate from the Kolkata Municipal Corporation (KMC). Completion certificate was received on 28.06.2013. Further, the opposite party offered possession of the premises to the complainant on 28.06.2013. However, the complainant refused to take over the possession and asked to rectify some of the discrepancies before handing over of possession. Hence, the opposite party was not liable to pay any damages, for losses incurred by the complainant.
In the light of the law laid down by the Hon’ble Supreme Court in the case of Bunga Daniel Babu (supra), the land owner entered into a joint venture with the developer/ builder as a consumer since he has not participated in the execution of the project but had availed his services of the said builder and therefore, the contention of the opposite party that the complainants are not consumer cannot be accepted. As regards the issue of arbitration and jurisdiction of this Commission, in view of the law laid down by the Hon’ble Supreme Court in the case of M/s Imperia Structures Ltd., vs Anil Patni and Another (2020) 10 SCC 783, wherein it held that:
‘remedies under the Consumer Protection Act were in addition to the remedies available under special statutes”, hence, this Commission is also competent authority, also, as per section 3 of the act, ‘the provisions of this Act shall be in addition to and not in derogration of any other law for the time being in force’.
On the merits of the case, the opposite party has not argued or brought any evidence on record to prove that delay in the construction or deficiencies in the provisions of amenities has claimed by the complainants was not in order. The charges for security services as per 27 of the agreement have not been disputed. In the absence of any documentary evidence or arguments by the opposite party on counter claims of the complainant, it can be construed that the opposite party admits the same. Accordingly, the complaint is liable to succeed. The complaint is disposed of with the following directions:
a. Opposite party shall pay compensation of Rs. 33,70,000/- to the complainant for the delay of 347 days;
b. Opposite party shall also pay a sum of Rs.2,65,000/- to the complainant for failing to provide amenities as per the agreement in the flats and Rs.55,800/- towards security;
c. This order shall be complied with within eight weeks failing which the opposite party shall be liable to pay interest @ 9% per annum till realisation; and
d. Litigation cost of Rs.50,000/- to be paid within eight weeks failing which interest @ 6% per annum till realisation.