Anup K. Thakur, Member (Presiding):— 36 flat owners, in different blocks, of Soura Niloy Housing Complex at 1, Kailash Ghosh Road, Kolkata - 700008, have come together to file this joint consumer complaint dated 19.07.2008.
2. Per the complaint, small, contiguous plots, of different land owners, were developed by the OP. Or, these plots, multi storied buildings consisting of composite flats of different super built up areas, were constructed, as per plan duly approved and sanctioned by the Kolkata Municipal Authority (KMC). OPs publicised this project through brochure and advertisement (Ann. A and A(i)). The complainants purchased their respective flats, paying the full consideration as per market rate, and executing and registering the deed(s) of conveyance in their favour.
3. It is the case of the complainants that inspite of several requests and demands, OPs failed to provide the amenities and facilities assured by them. OPs also failed to provide the completion certificate (CC), a statutory requirement as per ruies of the KMC, and as such, even after purchase of their flats, the complainants’ stay at the flats was precarious. The problem started when the complainants sought from the OPs the CC and the common amenities and facilities viz. piayground, community hall cum office room, 33 feet wide concrete road, and water supply from the KMC. Complainants’ enquiries revealed that the piayground promised belonged to a local club; and the pond contiguous to the complex was described by OPs as their own and shown as ‘beautified lake’ in the brochure advertisement These were clearly unfair trade practices, per the plaint. To substantiate their complainant, they engaged the services of Mr. Monojit Dey, approved valuer of Calcutta High Court, to carry out a spot verification. His report (Ann D) detected constructional defects. Hence, this consumer complaint, seeking direction to the OPs to provide CC of the project, to set right the constructional defects and to provide (i) Community Hall, (ii) Landscape gardening, (in) Generator, (iv) Multi Gymnasium (Health Club), (v)- Water Filtration Plant, and (vi) Gas Pipeline, and pay compensation of Rs. 1,80,00,000/- (Rs. 1 crore 80 lakh only), with ‘itigation cost of Rs. 50,000/- (Rs. Fifty thousand only)
4. This complaint was contested through a written version (WV) of OP-1/ M/s RNR Enterprises (OP hereafter). At the outset, it was pointed out that the OP had challenged maintainability of this consumer complaint vide MA 288/ 2008. This MA had been disposed of by order dt. 13.02.2009 which had directed the OP to raise these objections in its WV. This had then been challenged before the Hon'ble Apex Court. Witnout prejudice to this, the OP, in the WV, has raised the following points:
(i) Present complaint was barred by the law of limitation
(ii) The complaint was not maintainable as more than one complainants have joined in this complaint, without leave of the Court
(iii) The complainants have not paid the full consideration.
(iv) The complaint is in respect of certain common facilities/amenities but these can be undertaken and provided only if all the members of the housing project (say 235 flat owners) contribute for the same
(v) The disputes raised in the complaint cannot be settled in a summary trial
(vi) Complainants have paid around Rs. 9 to Rs. 21 lakh each for their respective flats (Ann. A), making each complainant ineligible to file a suit before the National Commission, on the ground of pecuniary jurisdiction; also, the flats are located in different premise numbers (Ann. B), each of the premises have different land owners (Ann. C). so, such’ complainants cannot file a joint consumer complaint
(vii) The compensation claimed at Rs. 1.80 crore is vague as well as imaginative.
5. It was further argued in the WV that most of the complainants took possession in 2006 and had not raised any objection at the time. Now after the period of limitation of two years is over, some of these flat owners have filed this complaint, with ill motives.
6. Regarding CC from KMC, it is stated that the question did not arise as the Project (at the time the complaint was filed) was still under construction; further, as the flats already stood transferred to the complainants by way of conveyance/sale deeds, it was now for the complainants to apply for the CC.
7. The OP has further contended that KMC had already completed assessment of the impugned flats of the complaints and the original sale deeds stood in their names, and therefore it was not possible for OP to now apply and obtain OC/CCs for the flats. In support, certificates from KMC, to the effect that that no amount was outstanding against the complainant-assesses, owners of flats, for the premises on which the flats were located, were attached as Ann.— D.
8. Regarding the community hall cum office room, it was submitted that the same was almost complete but could not be handed over as the complainants had not formed any association or society and the common facility had to be handed ever only to the Association/ Society.
9. In respect of the 33 feet wide concrete road, it was submitted that the road existea and that onetime payment for it's maintenance had also been made by the OP to KMC and that it was for KMC to maintain this road. Receipts in support of this contention were attached with WV as Ann. E.
10. In respect of water supply, it was submitted that OP had already made payments to KMC For individual water connections, the complainants had approached the KMC block wise. Copies of drafts snowing payment to KMC by OP were attached as Ann. F.
11. In respect of the playground and the club, Jagrani Sangha mentioned in the complaint, it was submitted that OP was not aware of any such club. However, it has been contended that the playground shown in the project exists and has been prepared at OP's own cost on and conveyed to Sankar Sarkar, proprietor of OP, vide deed numbers 2594 and 2595 of 2003 (Ann. G)
12. Regarding the pond, it has been stated that it was beautified by OP, as promised.
13. As for other extra facilities and amenities such as generator water filtration plant, gas pipeline, intercom line, disk antenna, cable line, health club, manual swimming pool, complainants would have to bear the extra cost as assessed by OP 1 at the time of request or initiation. This was as per Agreement for Sale, One Agreement for Sale at 19.06.2004, amongst the land owner, Smt. Shanti Mondal, OP-1 represented by Sankar Sarkar, and Sri Sudip Chakroborty, complainant no 5, has been attached with the WV, in support of this contention (Ann. H)
14. Regarding the report prepared by Mr Monojit Dey alleging that this report had deliberately incorporated certain facts which were contrary to the complaint petition itself (details however not furnished in the WV), OP sought direction for appointment of a Commissioner for inspection of the premises in presence of both the parties
15. OP also denied publishing any brochure of the project, as mentioned in the complaint petition. Citing the Agreement for Sale, it was further stated that if the complainants agreed to the development of the area along with other co-owners who are not part of the complaint, OP could develop the same upon a further payment of Rs. 1,80,000/- each It was also pointed out that another group of complainants were asking for development in the same project but on a different line and in a different way and had approached, through different consumer complaints, the State Commission and the District forum, A list of 6 such cases was provided in the WV.
16. As such, the WV submitted that these being the facts, the complaint were liable to be rejected with exemplary cost.
17. Arguments were heard on 20.08.2019 and 07.11.2019.
18. Learned Counsel for the Complainants submitted that there were 36 flat owners, now reduced to 35 as one had expired and legal heir had not approached for continuing with the complaint, and that this consumer complaint was about deficiency in service and unfair trade practice by the OP. He invited attention to para 11 of the complaint wherein the grievances and reliefs sought are listed (ref para 3 above) He then drew attention to the brochure at Ann A and an advertisement navernacular newspaper at Ann A(i), both containing a list of amenities that would come with the project. Referring to this list, he submittea that the actual state of affairs was quite different, in support, he cited the report dt. 11.07.2008 of the approved valuer of the Calcutta High Court Sri Monojit Dey, which had prepared three lists of items not provided viz as per the brochure, as per the Agreement for Sale, and as per the Conveyance Deed. Counsel submitted that the promises made by the OP in the brochure and what was provided in the deed of conveyance were quite different, and this indicated how the complainants had been misled by the OPs. The report further pointed out the defects in individual flats, such as dampness in the walls, cracks in the marbie flooring, outer paint completely faded, defective doors and lifts the report also observed that the 33 feet wide common concrete road was yet to be constructed and the condition of the approach road was not at all habitable. The learned counsel argued that this report left no doubt that there had been many lapses on the part of the OPs. He referred to another report of Shn Alok Mukhopadhyay, Advocate appointed as the local Commissioner by the State Commission vide it's order dated 11.03.2010: this report did not find any Community Hall; in respect of water tanks, it only found a small tank between two buildings, hardly what would be understood as a water tank for use by all the flat purchasers; as for playground, while not found within the premises, a Diay ground was shown outside the site; regarding internal roads, only internal kuccha pathways were found and these were also incomplete; as for water reservoir, four were found inside the complex, all made of cement, located in between various blocks. Concluding, the learned Counsel submitted that the amenities as promised were not made available the argument of the OP that development costs for these amenities had not been paid was denied. It was the case of the complainants that that full and final payment had been made, with the signing of the conveyance deed.
19. Counsel for the OP made two points at the outset viz. (i) the ‘project was small, and the impression that it was a huge project, with playgrounds, lake, children's park and the like, was not correct, and (ii) possession of fiats was taken and conveyance deeds registered long back, without completion certificate (CC) for the project from KMC. Thereafter, the complainants, after mutation and payment of taxes to the KMC, had filed this consumer complaint dt. 19.07.2008. This was beyond the period of limitation. Further, the counsel explained that each clot was around 7 kothas in area, and located in distinct premises with numbers 1U, 1T, 1L, and so on His point was that complainants, with fiats in different premises, different blocks, could not simply come together to the a joint complaint. Reference the printed brochure submitted with the complaint, the Counsel was dismissive, submitting that it was a document without any signatures. He then referred to the first agreed document(s) viz the Agreement for Sale (Ann. H), stating that both the parties were bound by this the second agreed document(s) were the conveyance deed(s) in these, no defects had been pointed out nor any mention made of any non-compliance with the promises made in the Agreement for Sale the counsel drew attention to one conveyance deed to essentially make the point that the complamant (s) was(were) well aware of the property they were purchasing, with all that came with it, described in schedule C & D of the conveyance deed. Learned counsel then compared the common facilities mentioned in schedule D with the report of the Advocate Commissioner (appointed by the State Commission) and the relevant portion of the Agreement for Sale. Schedule D of the conveyance deed inter aha mentions common facilities in playground, children park, community hall cum office room, library, 33 feet wide common concrete road, drainage, and tubewell, Transformer and Generator room, water Reservoir, motor pump and overhead tank, septic tank. He then pointed out that what was in dispute was the children park and community hall cum office room Counsel then referred to report of the Aavocate Commissioner and made the following submissions:
(i) in respect of Community Hal!, the commissioner was taken to a 70’ × 10/8” rectangular passage (without roof) by the side of M Block, however, the Advocate Commissioner failed to understand how this could be called a community hall:
(ii) regarding children park, it was found in existence between I & H blocks:
(iii) as for motor pump and overhead tank, 7 Shallow tube Wells and pumps were found, for lifting underground water to the building;
(iv) As for water reservoir, the Advocate commissioner found four such reservoirs inside the complex, all made of cement, placed between block A and K, J and F, T and R, and M and N.
22. Learned Counsel then referred to the Agreement for Sale (Annh) to argue that clause 1.11 clearly provided for enjoyment and use of common spaces and facilities available but with duties to maintain by bearing the expenses incurred proportionately; however, for other extra facilities and amenities e.g. generator, water filtration plant, gas pipeline, intercom line, dish antenna, health club, cable line, manual swimming pool etc., the complainant/purchaser would have to pay extra sum of Rs. …….. (not clear) and for car parking space, a further sum, of Rs. 1,00,000/- which shall be in addition to the total consideration money for the said flat. So, argued the counsel, it seemed that the complainants wanted to get the extra facilities without paying for them Referring to clause 1.6 of the Agreement for Sale, he pointed out that it was clearly provided therein that roof right shall always remain with the OP, including the right to raise construction.
23. Referring to the conveyance deed of Sri Debashish Sinha, complainant no. 1, he drew attention to schedule D and reiterated the submissions already made in para 19 above viz. that all common facilities listed therein such as lobbies, stairs etc. had been handed over to the complainant; as for other common facilities, the position was explained thus: (i) Play ground: OP 1 has already purchased the land: “(n) Children park: it exists as reflected in Advocate Commissioner's report (supra); (iii) community hall cum office room, it exists as acknowledged in the Advocate Commissioner's report though found to the premises as fit for habitation, and that if the complainants felt that this was a fraud, they could have taken exception to it as it had been submitted with the WV. Since they have not, it is presumed that they have accepted it as the completion certificate. In any case, they have all taken possession and executed and registered the conveyance deeds Further, the KMC has already completed the assessments of the flats and have also furnished NO OUTSTANDING DUES certificates to the complainants, upon their request, in Jan. 2009, copies of which were furnished with WV at Ann. D. Since this is so it was not proper for the complainants to talk about constructional defects of the flats at this stage he then drew attention to receipts for various development charges paid by the OP, from Kolkata Municipal Corporation, Building Department, and argued that this showed that the OP had complied with its duties and obligations as far as the municipal laws were concerned.
24. After having heard the learned counsels over two days and examined carefully the voluminous documents on record, I am of the considered view that the complainants have not been able to establish their complaint. It does seem however that the OPs may have indulged in unfair trade practice though this does not help the case of the complainants.
25. First, it has to be noted that the 36, later reduced to 35 complainants do not constitute a uniform group; rather, they own flats on different floors, in different blocks and on different premises (plots). They have chosen to come together in this consumer complaint, on some basis undoubtedly but it is not clear what that basis might have been. However, after hearing arguments on MA 463 of 2009 of the complainants, which was an application for allowing this joint complaint, the Commission, vide order dated 12.01.2010, had allowed the same, the ground was that paragraph 11 of the consumer complaint stated that the OPs should provide Community Hall, landscape gardening, generator, multi gymnasium, water filtration plant and gas pipeline which was common to ail the complainants. Thus, the issue of maintainability of the joint complaint thus stands settled.
26. Second, it has been pointed out, by the counsel for OPs, during the course of oral arguments, that this was not a huge project as such and thus talk of common areas and facilities on a grand sca’e was quite misplaced. Indeed so: it is noted that in para 3 of the consumer complaint, it has been admitted by the complainants themselves that small plots of different owners contiguous to each other have been developed by OP 1 on which multi storied buildings consisting of composite flats of different super built up areas have been constructed. It is thus an admitted fact that this was not a huge project where the developer, in addition to residential units, promises to also deliver substantial common areas and common facilities. In this case, this was clearly not the case and as much has been admitted in the complaint itself. Even so, the complaint is, majorly, about common areas and facilities and it is this aspect that is examined next.
27. Third, the conveyance deeds reveal that each complainant has been conveyed the fiat (described fully in schedule C of the deed) with the undivided proportionate impartible share of land together with the right of common areas and common facilities which is more fully described in Schedule D of the deed Schedule D describes this as comprising all that part of lobbies, stairs, passages..including common facilities in playground, children park, community hall cum office room, library, 33’ ft wide concrete road, drainage, and tube well, transformer and generator room, water reservoir, motor pump and overhead tank, septic tank. Further, it is clearly mentioned in the conveyance deed that it was pursuant to an Agreement for Sale. And this Agreement of Sale, clause 1.11 therein, very clearly, provides for sale of the flat, with proportionate share of land, and also for enjoyment and use of common spaces and facilities available with duties to maintain by bearing the expenses incurred proportionately in maintaining and repairing of the common spaces and facilities and for other facilities and amenities e.g. Generator, Water Filtration Plant, Gas Pipeline,…, Health club. . etc., the Purchaser/Third Part have to pay extra sum of Rs. one lac only… Now, if the two documents are read together, it is fairly established that there was a clear mention of extra payment for extra facilities the complainant's case is that with the payment of the full consideration for the flat, all common facilities were also automatically paid for the OP's case is the contrary some common facilities such as stairs etc are indeed included in the consideration but other than these, extra facilities had to be paid for Further, during the course of arguments, counsel for OPs has argued that the Advocate Commissioner's report, at the behest of the State Commission had shown that some extra common facilities had already been provided, may be not to satisfaction but provided nonetheless, and that more facilities could be providea if the complainants were willing to pay for the same This seems a reasonable stance on the part of the OP.
28. Fourth, at this stage, it is necessary to also consider the two documents furnished with the complamt viz the brochure and the newspaper advertisement. The brochure is denied by the OP as being of no relevance and has also argued that there were other more reliable documents such as the Agreement(s) for Sale and the conveyance deed(s) This argument however is not understood the brochure has been filed with the complaint along with an advertisement in a vernacular paper Both carry roughly the same information though there are differences such as: (i) on the brochure is stamped “Total 453 flats in 23 Blocks” whereas newspaper advertisement mentions “Total 353 flats in 23 Blocks”, (ii) the brochure claimed the complex is “Just 1 kilometre from Tollygunge Metro”, the advertisement claimed “Just 2 KM. from Tollygunge Metro Station”, (in) brochure indicated that 90% of the project was complete and offered possession within 2 months, whereas the advertisement claimed that 95% of the project was complete and offered possession in 2 months.; (iv) amenities offered in brochure and the advertisement differ in that the brochure offered ‘Multi Gymnasium’ and ‘24 hours water supply’ which was not mentioned at all in the advertisement. Several questions arise Why would the complainants file the two documents if these did not exist. It is unlikely that the complainants would have manufactured these documents. OPs too nave not alleged this or suggested anything like this; rather” Counsel for OP has argued that these documents were not relevant and that he would be relying upon the two agreed documents viz. the conveyance deed and the Agreement for Sale. The question however is not about the documents the OP chooses to rely upon; rather it is a more basic question viz whether these documents exist(ed) It appears to me, beyond reasonable doubt, that they did, for reasons discussed above Since they did, it is easy to see that these documents decidedly promised much, by way of amenities, undoubtedly to attract customers While doing so, the fact that some of the amenities being promised were not a part of the deal was not disclosed. This was misleading and therefore an unfair trade practice. Further, the very fact that the brochure and the advertisement differed in respect of the amenities offered, and the further fact that descriptions of these amenities and facilities in the Agreement for Sale and the Conveyance Deed also differed, does give the unmistakable impression that the OPs were far too casual in this matter. This aspect of OP's casual approach has been very clearly documented in the report dt. 11.07.2008 of Sri Monojit Dey, approved valuer of the Calcutta High Court who was engaged by the complainants. Thus, the Report clearly shows that the list of items not provided by the OPs was playground, community hall, beautified lake, landscape gardening, generator back up, multi gymnasium mentioned as per the items promised in the brochure; this list became generator water filtration plant, gas pipeline, intercom line, health club, manual swimming pool in the Agreement for Sale, and then, substation, pump room playground, community hall cum office room, library. 33 ft wide concrete road and generator room in the conveyance deed What therefore comes through clearly is that the conduct of the OPs was far too casual and, on the face of it, OPs are guilty of unfair trade practice, within the meaning of sec 2(i)(r) of the Consumer Protection Act 1986. That said, this does little to rescue the complaint since they, of their own admission, state in the plaint in para 4 that they agreed to purchase their respective flats on payment of consideration as per market rate and duly purchased their respective flats on due execution and registration of the deed of convey in their favour upon full payment of consideration money The simple question that then arises is that they ougnt to have known what they were purchasing, a point made during the oral arguments by the counsel for the OP.
29. Fourth, coming to the complaint at hand, it has to be up for consideration as to why 36/35 complainants, of different blocks, on Different floors, located on different premises (plots) have come together in a joint consumer complaint, demanding (a) completion certificate of the project and setting right the constructional defects, and (b) provision o’ (i) community hall, (n) landscape gardening, (in) generator, (iv) multi gymnasium, (v) water filtration plant, and (vi) gas pipeline, along with (c) a compensation of Rs. 1,80,00,000/- and cost of Rs. 50,000/- One, no averment has been made in the complaint petition or during the course o’ arguments as to the basis on which a compensation of Rs. 180 crore has been sought. It is specially net understood as to how this compensation has been sought in addition to the prayer to provide the common amenities and facilities listed in the complaint. Finally, it is not clear as to why the complainants are seeking the completion certificate of the Project, after having taken possession of their respective flats and navmg also obtained their conveyance deeds This does give rise to a suspicion that the purpose may be only to pressurize the OPs into paying some compensation and/or not insisting upon extra payments for the extra facilities and amenities. During arguments. Counsel for OP has been able to successfully argue that it was not the OP's fault that there was no completion certificate of the project. Indeed, a reading of section 403 of KMC Act 1980 makes it clear that it was incumbent on both the OP as well as the complainant to not occupy the premises in the absence of a completion certificate. In this view, both the complainant and the OP are in violation of the law. As such, no deficiency in service can be attributed to the OP on this account.
30. Fifth, admittedly, however, this consumer complaint is about non-Drovisionmg of the common facilities spelt out in para 11 of the complaint viz. community hall, landscape gardening, generator, multi gymnasium, water filtration plant and gas pipeline. The Agreement for Sale furnished by the OP at Ann. H with WV, in para 1.11 thereof, in respect of common facilities mentioned in the consumer complaint, cleanly provides that these are “extra facilities and amenities” and the compiamant/purchaser has to pay an extra sum of Rs. (amount unspecified). On query, counsel for OP submitted that the original agreement document was with the comp’ainant(s) It is noteworthy that this agreement for saie has neither been mentioned nor provided with the complaint Nor however has this agreement been denied by the complainants, in their rejoinder to the WV or during the arguments Also, this Agreement for Sale does find mention in the report of Sri Monojit Dey the valuer appointed by the complainants. So it would appear that such an Agreement for Sale existed This means the complainants were, or should have been aware of the factum of extra payment for extra facilities. Curiously however, para 4 of the complaint simply mentions that the complainants, allured by the amenities and the facilities on offer, on payment of consideration as per market rate, purchased their flats on due execution and registration of the deed of conveyance in their favour. If this was indeed sole, if the complainants, m response to the brochure, saw the fiat, checked the price (market rate, not the rate as per Agreement of Sale), and bought the flat, then it would appear to be an outright sale of flat(s). if so, there would be no question of deficiency in service or unfair trade practice as it would be simply a case of a buyer purchasing a flat, on ‘as is’ basis If not, then, the complainants ought to have known what they were purchasing. So, it appears to me that whichever way this complaint is looked at, viz. from the aspect of the Agreement of Sale or one occasioned by an inspection and purchase of the flat(s), It is clear that the complainant has failed to establish it's case for claiming any compensation on account of non-provision of common amenities and facilities.
31. In view of the discussion above, this consumer complaint is dismissed, in the facts of the case, there shall be no order as to costs.
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