National Consumer Disputes Redressal Commission (NCDRC): Anup K. Thakur (Presiding Member) addressed a consumer complaint alleging unfair trade practice and deficiency of service.
As per the complaint, small contagious plots of different landowners were developed by the OP. On the said plots, multi-storied buildings consisting of composite flats were constructed as per duly approved and sanctioned by the Kolkata Municipal Authority.
Complainants purchased their respective flats paying full consideration as per the market rate and executing and registering the conveyance deed.
After several complaints, the OPs failed to provide the amenities and facilities assured by them. OPs also failed to provide a Completion Certificate which a statutory requirement as per the KMC rules.
Unfair Trade Practices
Complainants sought from the OPs common amenities and facilities. Later the complainants discovered that the playground promised belonged to a local club and the pond contiguous to the complex was described by OPs as their own and shown as a beautified lake in the brochure advertisement.
Analysis & Decision
On perusal of the facts and contentions, the bench stated that the complainants have not been able to establish their complaint. Though the OPs may have indulged in unfair trade practice yet this does not help the complainant’s case.
Maintainability of the complaint
- The complainants do not constitute a uniform group rather they own flats on different floors in different blocks and premises.
Complainants chose to come together in the present consumer complaint on some basis undoubtedly but it is not clear what the basis might have been.
In an earlier order, the Commission stated that the consumer complaint listed certain facilities that were to be provided as a common one, hence the issue of maintainability of joint complaint stood settled.
- Complainant’s stated that with the payment of the full consideration for the flat all common facilities were also automatically paid for.
Whereas OPs stated that some common facilities such as stairs, etc. indeed included in the consideration but other than these extra facilities had to be paid for.
Even the AdvocateCommisisoner’s report on the behest of the State Commission stated that some extra common facilities had already been provided and more facilities could be provided if the complainants were willing to pay for the same.
Brochure and Newspaper Advertisement
- Bench observed that a lot was promised to the complainants by way of amenities, undoubtedly to attract customers. The fact that some of the amenities promised were not part of the deal was not disclosed by the OP.
Further, the said act was misleading and therefore an unfair trade practice.
The fact that the brochure and the advertisement differed with respect to the amenities offered and further the descriptions of the said amenities and facilities in the Agreement for Sale and the Conveyance Deed also differed does give the impression that OPs were far too casual in the present matter.
In view of the above, OPs are guilty of unfair trade practice within the meaning of Section 2(1)(r) of the Consumer Protection Act, 1986.
But the bench on noting that the complainants themselves agreed to purchase their respective flats on payment of consideration and on due execution and registration of the conveyance deed, stated that the complainants ought to have known what they were purchasing.
Why is their a joint complaint?
Commission finds suspicion with regard to filing a joint complaint and states that this may be only to pressurize the OPs into paying some compensation and/or not insisting upon extra payments for the extra facilities and amenities.
No deficiency of service can be attributed to the OP
A reading of Section 403 of the 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 view of the said, complainant and the OP are in violation of the law.
Commission dismissed the consumer complaint as the complainants failed to establish their case as the Agreement of Sale as provided by the OP also clearly stated that common facilities mentioned were under the scope of “extra facilities and amenities” and the complainant/purchaser had to pay and extra sum for that.
Hence, the complainants should have been aware of the factum of extra payment for extra facilities.
Complainants in response to the brochure saw the flat, checked the price and bought the flat which appears to be an outright sale of flats.
In view of the above, no question of deficiency of service or unfair trade practice as it would be simply a case of buyer purchasing a falt on ‘as is’ basis, if not then the complainants ought to have known what they were purchasing
Therefore, the consumer complaint was dismissed. [Debashis Sinha v. R.N.R Enterprise, 2020 SCC OnLine NCDRC 429, decided on 21-08-2020]
Counsel for the complainants: Varun Dev Mishra, Advocate with Mrinmoi Chatterjee Advocate
Counsel for the OPs: Shiva Shankar Banerjee, Advocate with Madhurima Ghosh, Advocate with Sankar Sarkar, in person