The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of intending purchasers against the developer (Opposite Party No.1) and it’s partners (OP nos. 1A & 1B) and landowners (OP nos. 2 to 7) with the allegation of deficiency in services on the part of them in respect of a flat in a consumer dispute of housing construction.

Succinctly put, Complainants’ case is that in order to buy a self-contained flat, Complainants entered into an Agreement for Sale with the OPs on 03.01.2014 to purchase of a flat measuring about 1200 sq. ft. more or less including 20% super built up area being Flat No.201 on the 2ndfloor of the building namely ‘Nidhi Apartment’ lying and situated at Holding No.23, Surendranath Banerjee Lane, P.S.- Mali Panch Ghora, Howrah – 711106 within the Howrah Municipal Corporation at a total consideration of Rs.31,00,000/-. The Complainants have stated that they have already paid 90% of the consideration amount i.e. Rs.27,90,000/- and they are liable to pay the remaining 10% of the consideration amount at the time of Execution of Deed of Conveyance. The Complainants also stated that OP no.1A has illegally and fraudulently taken additional money amounting to Rs.1,26,315/- only in cash from them for alleged extra works. By a letter dated 15.06.2014, the developer has intimated the Complainants about completion of flat and demanded Rs.3,10,000/-. The Complainants, who have obtained loan from the Canara Bank sent two persons for measurement of flat in presence of Complainant no.1 and OP no.1 and after measurement it has been reported by the Canara Bank that only 68.15 sq. meters i.e. 734 sq. ft. has been sanctioned by the Howrah Municipal Corporation. By a letter dated 29.12.2014, the Executive Engineer, Building Department of Howrah Municipal Corporation has directed to the OP no.1 to deposit retention fees of Rs.3,89,518/- for deviated construction in respect of the said flat. The Complainants alleged that OP no.1 did not disclose the fact of sanctioned plan of only 68.15 sq. meters in respect of the subject flat at the time of booking. The Complainants submit that they are ready and willing to get the Deed executed in favour of them but the same cannot be done unless the construction of the said flat is sanctioned the Howrah Municipal Corporation. Hence, the Complainants approach this Commission with prayer for certain reliefs, viz – (a) an order directing the OPs to execute the Deed of Conveyance in respect of the flat in question or alternatively to refund the advance amount of Rs.27,90,000/- with interest @ 18% p.a.; (b) compensation of Rs.5,00,000/- for unfair trade practice and causing harassment and mental agony; (c) to return the amount of Rs.1,26,315/- which was taken on account of alleged extra works; (d) costs of the proceeding etc.

The OP nos. 2 to 7 (Landowners) did not contest. The OP no.1, 1A & 1B (Developer and its partners) by filing a written version has admitted the existence of the agreement and further stated that there were some deviation in respect of the newly constructed building for which the Howrah Municipal Corporation asked them to deposit of Rs.3,89,518/- to regularise the same. The contesting OPs have also stated that they requested the Complainants to get the Deed registered after payment of balance consideration amount of Rs.3,10,000/- but the Complainants did not adhere to the proposal. Therefore, the complaint should be dismissed with costs.On the basis of contention of the parties, the following points are framed for adjudication;-

1. Is the complaint maintainable?2. Are the Complainants ‘consumer’ as defined in Section 2(1)(d) of the Act?

3. Is there any deficiency in services on the part of the OPs?

4. Are the Complainants entitled to get the relief/reliefs, as prayed for?

In order to prove the case, Shri Monoj Kumar Pandey, Complainant no.1 himself has tendered evidence on affidavit on behalf of him and also on behalf of his wife i.e. Complainant no.2, against which questionnaire has been filed to which reply was given by the Complainants.

On behalf of the contesting OPs, Shri Gopal Bhattacharjee, OP no.1A has tendered evidence on affidavit, against which questionnaire has been filed by the Complainants to which reply was given by the contesting OPs.

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

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

DECISION

Point nos.1 to 3

All the above three points are taken up together for the sake of convenience and to skip reiteration.

The overwhelming evidence on record makes it abundantly clear that the Complainants being spouses of each other were in search of a suitable residential accommodation and approached the OP no.1/developer and ultimately on 16.12.2003, the Complainants have paid Rs.1,00,000/- as an advance money by way of cheque. On 03.01.2014, the Complainants have entered into a formal agreement with the OP no.1 to purchase of a self-contained flat measuring about 1200 sq. ft. more or less including 20% super built up area being Flat No.201 on the 2ndfloor of the building namely ‘Nidhi Apartment’ lying and situated at Holding No.23, Surendranath Banerjee Lane, P.S.- Mali Panch Ghora, Howrah – 711106 within the Howrah Municipal Corporation at a total consideration of Rs.31,00,000/-. On the date of Agreement for Sale, the Complainants have paid further part consideration amount of Rs.5,20,000/-. It remains undisputed that out of total consideration amount of Rs.31,00,000/-, Complainants have paid 90% of the total consideration amount i.e. Rs.27,90,000/-. It also remains undisputed that by a letter dated 15.06.2014, the OP no.1 asked the Complainants to make payment of Rs.3,10,000/- i.e. the balance 10% of the consideration amount. The Complainants in order to purchase the flat, obtained loan from the Canara Bank relying upon the Development Agreement executed by and between the Developer and the Landowners and also the General Power of Attorneys executed by the landowners in favour of the developer. The fact remains that the developer did not hand over the building sanctioned plan to the Complainants prior to execution of Agreement for Sale. It would be pertinent to record that the Howrah Municipal Corporation sanctioned the building plan on 25.12.2012 and as such at the time of execution of agreement, the said sanctioned plan was very much available with the developer but the developer withheld it.Ultimately, truth has come out from the contents of written version of the OP no.1 itself. In fact, the OP no.1 has made deviation in respect of the subject flat for which by a letter dated 29.12.2014, the Executive Engineer of Building Department of Howrah Municipal Corporation has directed the OP no.1 to deposit fine (retention fees) of Rs.3,89,518/- for deviated construction in respect of the flat in question. The OP no.1/developer did not take any step to overcome the situation for which the Complainants had to run from pillar to post because they have already paid 90% of their hard earned money to cherish the ideal of having a roof over their head. On the contrary, the OP no.1 has made a demand of Rs.3,10,000/- for execution and registration of the flat. The statement of letter dated 15.06.2014, whereby the OP no.1 asked the Complainants to make payment of Rs.3,10,000/- as balance amount is really shocking because unless the flat is handed over to the Complainants without any proper sanction, certainly, it would not be possible on the part of purchaser to get completion certificate and in turn the Complainants would not be able to mutate their names in the Assessment Register of the Corporation.Mr. Amar Nath Sanyal, Ld. Advocate for the Complainants has categorically submitted that in the building plan, sanction area of the flat has been mentioned as 68.15 sq. meter i.e. 734 sq. ft. and the developer has deviated 266 sq. ft. and as such the construction of the said flat is illegal and unless and until the flat has been sanctioned, the Complainants cannot take possession of the flat. Ld. Advocate for the Complainants has also submitted that under compelling circumstances, the Complainants had to make a prayer for amendment of petition of complaint in order to insert the prayer of refund of part consideration amount with interest thereon.

Mr. Tarun Kumar Guha, Ld. Advocate assisted by Mr. Ajay Kumar Shaw, Ld. Advocate has submitted that in reality the dispute between the parties does not come within the purview of Consumer Forum in view of the bar as contained in the provisions of Section 12A of West Bengal (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 (in short, Promoters Act) and in support of his contention, he has placed reliance to two decisions of Calcutta High Court reported in – (1) 2015 (1) ICC 539 (Khurshid Ahmed Ansari – vs. – Md. Afzal) and (2) (2015) 1 WBLR (Cal) 943 (Krishna Abason Pvt. Ltd. – vs. – Krishna Sarkar & Anr.). I have gone through the decisions referred above and considered the submission advanced by the Ld. Advocates for the parties in this regard.

The decisions referred by the Ld. Advocate for the OP no.1/developer shall have no application in this case because in a of late decision dated 28.04.2016 in C.O. 1480 of 2014 (Md. Akbar Kamal – vs. – Tabraiz Alam Siddique & Ors.), the Hon’ble High Court referring those decisions has observed that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provisions prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment. Therefore, the submission of Ld. Advocate for the OP/developer in this regard has no leg to stand upon.

The facts and circumstances of the case clearly indicates that the Complainants being ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act approached the OP no.1/developer to purchase of a flat at a consideration of Rs.31,00,000/- and paid part consideration amount of Rs.27,90,000/- and a balance amount of Rs.3,10,000/- is due and payable at the time of taking possession of the flat but the OP no.1/developer has deviated the sanctioned plan in respect of the said flat and suppressed the same at the time of entering into the agreement with the Complainants. The Op no.1 has adopted unfair means by not handing over copy of sanctioned building plan together with copies of Development Agreement and Power of Attorney. Therefore, the OP no.1/developer was deficient in rendering the service to the Complainants in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.

Accordingly, all the above three points are decided and disposed of in favour of the Complainants.

Point No.4:

On evaluation of materials on record and in view of forgoing discussion in Point Nos. 1 to 3, the Complainants are entitled to refund of amount of Rs.27,90,000/- already paid by them together with an interest thereon. Considering the recent trend of the decisions of Hon’ble Supreme Court and the Hon’ble National Consumer Commission, I think an interest @ 12% p.a. from the date of payment till its full realisation will meet the ends of justice in the facts and circumstances of the case. The OP no.1 has adopted unfair means and thereby caused harassm

ent and mental agony to the Complainants to a great extent which they are facing for last three years and as such a compensation of Rs.3,00,000/- in the facts and circumstances would subserve the object of justice. Under compelling circumstances, the Complainants had to file this complaint and as such the OP no.1/developer must borne the costs of the proceedings which I quantify at Rs.10,000/-. Accordingly, this point is also disposed of. In the result, complaint succeeds in part. It is, accordingly ORDERED that the complaint is allowed on contest against OP nos.1, 1A and 1B with costs of Rs.10,000/- and dismissed against the rest without any order as to costs. The OP nos.1, 1A & 1B are jointly and severally directed to refund Rs.27,90,000/- along with an interest thereon @ 12% p.a. in favour of the Complainants from the date of payment till its full realisation. The OP nos. 1, 1A and 1B are also directed to make payment of compensation of Rs.3,00,000/- in favour of the Complainants. The amount of compensation of Rs.3,00,000/- and litigation cost of Rs.10,000/- aggregating of Rs.3,10,000/- must be paid within one month from date, otherwise the said amount shall carry an interest @ 9% p.a. till its full realisation.