J.ROY CHOWDHURY vs SAHIL CONSTRUCTION

THE instant complaint has been filed under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act'') averring therein that the complainant Shri J. Roy Chowdhury had entered into a Collaboration Agreement dated 26.2.1996 with the opposite party. In terms of the said agreement, the O.P. had to pay to the complainant a sum of Rs. 18.50 lacs. However, out of the said amount, Rs. 6 lacs still remains to be paid by the O.P. and despite repeated reminders, the O.P. has failed to do the needful. Not only that but the O.P. has also failed to provide the facilities and carry out the obligations in terms of the Collaboration Agreement dated 26.2.1996. THE O.P. was required to get the water connection sanctioned, as well as, to instal pumps to extract ground water which obligation he has failed to carry out till date. THE O.P. was also required to instal two electric meters separately for the two floors belonging to the complainant but instead of installing two separate meters, the O.P. has provided only one meter. THE O.P. has also failed to execute the sale deed in respect of the sale of the basement and the first floor and has also not got the same registered as per requirement, nor have the names of the purchasers of the basement and first floor been mutated in the name of the purchasers in the records of the L&DO. Further more, only 3 wardrobes have been provided in the premises of the complainant instead of 4 wardrobes as stipulated in the agreement nor has the O.P. completed the fittings in the second floor despite repeated requests and reminders. As such the complainant has filed the present complaint praying for directions to the O.P. to pay to the complainant, the balance amount of Rs. 6 lacs together with interest @ 24% p.a., as well as, complete the jobs still remaining undone/incomplete, as well as, comply with the other obligations on his part in terms of the collaboration agreement as enumerated in his complaint.

THE O.P. was duly served and the Counsel for the O.P., Mr. Deepak Arora appeared before this Commission on 3.10.2000. On the said date, the Counsel for the O.P. was afforded an opportunity of four weeks for filing reply/written version on behalf of the O.P. However, thereafter, despite various opportunities given, neither anyone cared to appear on behalf of O.P. nor the O.P. cared to file any reply/written version and as such he was proceeded ex parte vide order/proceedings dated 10.12.2001. In support of his case the complainant has filed his own affidavit by way of evidence along with the relevant documents.

We have carefully perused the documents/material placed on record, as well as, have heard the Counsel for the complainant only, as none was present on behalf of the O.P. even at the stage of arguments.

THE present complaint has been filed claiming reliefs against the O.P. for having failed to fulfill its obligations in terms of the Collaboration Agreement dated 26.2.1996 executed between the complainant and the O.P. However, before the controversy is decided on merits, the following questions arise for consideration in the present appeal : (i) Whether the complainant is a consumer under Section 2(1)(d)(ii) of the Act ? (ii) Whether the respondent is a provider of service as defined in Section 2(1)(o) of the Act ? (iii) If the answer to the above propositions is in the affirmative, whether the complainant is entitled to any relief ?

Question Nos. 1 and 2 Since both the above mentioned questions are inter-connected, we will be considering the same together. In order to decide the question as to whether the complainant, in the given facts, is a consumer as defined in Section 2(1)(d)(ii) of the Act, it has to be established that the complainant had hired or availed of the services of the O.P. for consideration. The Collaboration Agreement dated 26.2.1996 provides the key to the said question. According to Clauses (1) to (6) of the said agreement, read together, the complainant was to place at the disposal of the O.P. vacant possession of the plot of land with structure thereon and O.P. was to get the same converted from leasehold to freehold and thereafter demolish and reconstruct a residential building consisting of basement floor, ground floor, first floor and the second floor at its own costs, expenses and resources. Clause (8) of the agreement further determines the rights and liabilities of the parties in the new building to be so raised, as well as, the land on which it was to be built. The said clause reads as under : "OWNERS SHARE : The owner shall have, the entire ground floor, second floor as per sanctioned plans and two servant quarters with common WC/bath, roof/terrace along with rights of erection of upper floors on roof/terrace on the said property after shifting water tanks and servant quaters on roof/terrace of top floor, proportionate, undivided and indivisible rights, interests, liens and titles in the land beneath the same, rights of usage of common easements attached thereto, i.e. common passage(s) and staircase(s) for approach, use of common services, i.e. booster pump, common WC/bath on terrace etc. and a sum of Rs. 18,50,000/- (Rs. Eighteen lacs fifty thousand only) has been agreed by the builder as consideration amount for this agreement, out of which Rs. 1,00,000/- (Rs. One lac only) has been received by the first party on signing of his agreement on 28.2.1996, has been paid by the builder unto the owners under separate legal receipt prior to execution of this agreement, and the receipt where of the owner hereby confirms and acknowledges. The balance amount of Rs. 17,50,000/- (Seventeen lacs fifty thousand only) has been agreed to be paid by the builder unto owner as per mutual settlement. BUILDER''S SHARE The builder shall have the entire basement floor, entire first floor and two servant quarters with common WC/bath on roof/terrace of second floor, along with proportionate undivided and indivisible rights, interests, liens and titles in the land beneath the same, rights of usages of common easements attached thereto, i.e. common passage(s) and staircase(s) for approach, use of common services i.e. booster pump etc."

Thus, it is apparent that the nature of transaction envisaged in the agreement was not where the appellant had hired the services of the O.P. for constructing his house for consideration of amount to be realized by selling of first and second floors, but a contractual obligation, in the nature of a joint venture whereby the plot of land was to be provided by the complainant on one hand and the cost of demolishing the existing structure and raising a multi-storeyed building, was to be borne by the O.P. on the other hand, and the building so constructed was to be shared as per agreement and both the complainant and the O.P. were to have an indivisble and impartible proportionate ownership rights of land underneath the said building which (sic.) the fact that both the parties to the agreement were co-owners of (sic.) premises. Clause 18 further reinforces the said view and the use of the word ''share'' is of utmost significance : "18. That the owner has agreed to execute all documents and assurances as may be necessary and requisite in favour of the builder or its nominee in respect of the portion of the property falling to the share of the builder. The builder shall be entitled to negotiate for the sale or transfer of any part of the portion falling to his share on such terms as may be deemed fit by the builder and to receive the earnest money/allotment money or entered into any agreement to sell or other consideration to the purchaser and to give a discharge for the same. The Transfer Deed/Sale Deeds or Deeds shall, however, be executed and registered by the owner himself at the instance of the builder. As per draft already accepted by the builder and the owner (copy of Draft Sale Deed attachhed)."

Thus, we see that consideration has changed hand both ways. The complainant''s share included the ownership rights in the ground floor and second floor and two servant quarters with common WC/bath on roof/terrace along with right of erection on roof/terrace together with Rs. 18.50 lacs. Whereas the O.Ps. share included the ownership rights in the basement floor and the first floor and two servant quarters with common WC/bath on roof/terrace along with the indivisible and impartible proportionate ownership right of land underneath the building.

EVEN the very nomenclature of the Agreement as "Collaboration Agreement" is suggestive of the intent of the parties. The dictionary meaning of the word "collaborate" is to come together; to aid or to co-operate; which in itself reflects that both the parties intended to come together to co-operate in a joint venture on sharing basis. Therefore, there was no element of hiring of services simplicitor in the facts of the present case and as such neither was the appellant a ''consumer'' nor was the respondent a provider of ''service'' under the Act. The same proposition of law came up for consideration before the Hon''ble National Commission in case - entitled C. Narasimha Rao v. K.P. Neela Kandan & Anr., reported as I (1994) CPJ 160 (NC), wherein on similar facts it was held that the dispute did not fall within the ambit of the Consumer Protection Act, 1986. The said decision of the National Commission was relied upon by this Commission in case Har Sarup Gupta & Ors. v. M/s. Kailash Nath and Associates, reported as II (1995) CPJ 275. The facts of the said case were also similar to the facts of the present case, as the parties had entered into a contract for the construction of flats on the plot of land owned by the complainant, with the agreement that the built-up area would be shared by both the parties in the proportion as mentioned in the agreement entered into between the parties in that case. It was held by this Commission in the case of Har Swaroop Gupta (supra), that such an agreement does not amount to rendering of services on the part of the builder and cannot be adjudicated upon under the provisions of the Act. Therefore, in view of the above decisions we are of the opinion that the present dispute does not fall within the ambit of the Act, as the appellant is not a ''consumer'' and the respondent is not a provider of ''Services'' under the Act. Question No. 3 Since we have already, in answer to the first two questions, held that the transaction in question is an outright sale of immovable property in the nature of a joint venture and the consideration has passed both ways, it cannot be said that the complainant is a ''consumer'' availing of services hired from the O.P. and accordingly the answer to the question No. 3 would be that since the complainant is not a ''consumer'' who has availed of the services of the O.P. as such, the complainant cannot claim any relief under the Act. Accordingly, the present complaint, filed by the complainant, being not maintainable before a Redressal Agency established under the Act is liable to be dismissed and is dismissed accordingly. However, in the circumstances of the case, the parties are left to bear their own costs. However, before concluding we would like to make it clear that the dismissal of the present complaint by this Commission will not operate to the prejudice of the complainant in the matter of pursuing any other remedy that may be available to the complainant under any other law for the time being in force. The present complaint stands disposed of in above terms Complaint dismissed.