State Consumer Disputes Redressal Commission
Smt. Durba Banerjee & Others vs Megacity Construction & Another on 20 July, 2012
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : CC/13/2011 DATE OF FILING : 11.03.2011 DATE OF FINAL ORDER: 20.07.2012 COMPLAINANTS 1. Smt. Durba Banerjee Wife of Sri Amit Dutta 2. Amit Dutta S/o Sri Sudhansu Ranjan Dutta 3. Smt. Nivedita Banerjee Wife of Gautam Banerjee All are presently residing at 23B, Bijoy Bose Road Kolkata-700 025. RESPONDENTS 1. MEGACITY CONSTRUCTION Represented by proprietor S.M.Faiyaz Alam Business place at 24/1C, Kustia Road Ground Floor, Room No. 18 Kolkata-700 039, P.S. Karaya Having residential address At 24/1B, Kustia Road, 3rd Floor, Flat No. TF/2 Kolkata-700 039, P.S. Karaya. 2. Pratik Chakravarty S/o Pradip Chakravarty Of 23A, Bijoy Bose Road Kolkata-700 025 Police Station-Kalighat. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MR. S.COARI MEMBER : MRS. MRIDULA ROY FOR THE PETITIONER / APPELLANT : Mr. Barun Prasad, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. Tarakeswar Pal, Ld. Advocate : O R D E R :
MR. S.COARI, LD. MEMBER The present petition of complaint has been filed by the complainants against the Ops namely OP No. 1, the Developer and the OP No. 2, the Land Owner, for a direction upon the Ops to execute and register the deed of conveyance after completion of the unfinished works and to pay a compensation to the tune of Rs. 10,00,000/- along with litigation cost to the tune of Rs. 25,000/-.
The case of the complainants, in brief, is that the Ops after entering into a Development Agreement for the purpose of developing the property in question as per the sanctioned building plan promoted the property and in the process, the OP No. 2 executed a registered power of attorney in favour of the OP No. 1 for the purpose of selling out the flats in favour of the intending purchasers from the developers allotment. The complainants entered into an agreement with the OP No. 1, the developer, for the purpose of purchasing a self-contained flat measuring about 1125 Sq. ft. for a consideration of Rs. 27,25,000/- and in the process, have already paid the bulk amount of the consideration money except Rs. 2,25,000/-, which was agreed upon between the parties to be paid at the time of registration of the flat.
According to the complainants, the Developer/OP No. 1 has failed to effect the necessary completion of works and in that unfinished condition compelled the complainants to take delivery of the possession of the flat and the complainants after repeated requests and demands to the OPs to make good the unfinished works in the flat in question and also to execute and register the deed of conveyance in favour of the complainants after accepting the balance amount, have been compelled to institute the present Consumer Complaint for proper redressal.
The OP No. 2 is contesting the case by filing a written objection thereby denying all the material averments made in the petition of complaint contending inter alia that the petition of complaint is not maintainable. The landowner (OP No. 2) is in no way responsible for the unfinished works of the flat in question and that whatever dispute that exists in respect of the flat in question is admittedly in between the complainant and the OP No. 1 and that the OP No. 2 has got no role to play in this dispute and the contesting OP No. 2 has been unnecessarily impleaded in the present Consumer Complaint, which is liable to be dismissed against the OP No. 2. It is the further case of the OP No. 2 that as the developer has violated the terms and conditions of the Development Agreement entered into between the OP No. 1 and the OP No. 2, the OP No. 2 has terminated the Development Agreement and also has cancelled the power of attorney, which the OP No. 2 granted in favour of the OP No. 1 for the purpose of development project. It is the further case of the OP No. 2 that in the meantime the OP No. 2 has appointed a new developer after observing all the legal formalities and that the complainants may take up the matter with the newly appointed developer and on appropriate payments necessary unfinished works will be made good and that the OP No. 2 is always ready and willing to execute and register the deed of conveyance in favour of the complainants if the balance amount of payment is made by the complainants. In the absence of any deficiency in service at the instance of the Op No. 2 the petition of complaint is not maintainable and liable to be dismissed.
Moreover, the OP No. 1 being aggrieved with the steps taken by the OP No. 2 so far as it relates to Development Agreement, has instituted an arbitration proceedings before an appropriate forum and as the said proceeding is still pending and an interim order having been passed the present petition of complaint is liable to be dismissed.
Upon pleadings of the parties the following issues are framed :-
1.
Are the Complainants Consumers as per provisions of the Consumer Protection Act?
2. Are the Ops guilty of deficiency in service as claimed by the complainant?
3. Are the complainants entitled to the reliefs as prayed for?
DECISION WITH REASONS All the points are taken up together for the sake of convenience.
At the time of hearing it has been submitted on behalf of the contesting OP No. 2 that though the sale transactions between the complainants and the OP No. 1 is admitted, but the transactions having been taken place in between the complainants and the OP No. 1, the OP No. 2 cannot be held responsible for any deficiency that may have cropped up at the instance of the OP No. 1. In this connection, it is submitted on behalf of OP No. 2 that in the absence of any privity of contract in between the OP No. 2 and the complainants, the complainants are not legally entitled to have any reliefs against the OP No. 2 as per prayer of the complaint petition. In this regard, it has further been submitted on behalf of the OP No. 2 that the complainant is also not a Consumer as against the OP No. 2 as per provisions of the Consumer Protection Act. While elaborating on the point of unnecessary impleadment of the OP No. 2 in the consumer complaint the Ld. Advocate for the OP No. 2 has submitted before us that when admittedly the Developer, the OP No. 1, has failed to act in terms of the agreement entered into between the parties, there was no alternative left before the OP No. 2 but to cancel the said agreement. Moreover, the OP No. 2 has already cancelled the power of attorney granted in favour of the OP No. 1 in respect of the development project. According to the Ld. Advocate, the complainants are very much aware of the situation and knowing fully well that the OP No. 2 has already appointed a new developer for the purpose of development of the project in question, without approaching the OP No. 2 and/or the newly appointed developer the complainants are sitting tight and on all false and fictitious grounds have instituted the present consumer complaint and that too without any justification. While concluding his submissions the Ld. Advocate for the OP No. 2 has submitted before us that the existence of an arbitration proceeding in between the OP No. 1 and the OP No. 2 clearly puts an embargo in the present consumer complaint and on this score alone the consumer complaint is liable to be dismissed.
We have duly considered the submissions so put forward on behalf of the OP No. 2 and have also gone through the materials on record including the pleadings of the parties and the evidence on record and find that in this case the complainants have come forward with a case to the effect that after entering into an agreement for purchase of a flat from the OP No. 1, the construction company, who was admittedly entrusted by the OP No. 2 by means of a development agreement to promote and construct a residential building in the scheduled property and that for the purpose of selling the flats to the intending purchasers, the complainants entered into an agreement with the OP No. 1 for the purpose of purchasing a flat for valuable consideration to the tune of Rs. 27,25,000/- and that the complainants have paid almost the entire amount of consideration money except Rs. 2,25,000/-, which is to be paid at the time of registration of the flat in question.
According to the complainants, the complainants were compelled to take delivery of possession of the flat in question in an unfinished condition and in spite of repeated requests and demands the OP No. 1 has not completed the unfinished works and that the Ops are also reluctant in executing and registering the deed of conveyance in favour of the complainants in respect of the flat in question and hence, the petition of complaint for proper redressal. The OP No. 2 has contested the case by putting up a case to the effect that whatever transactions took place in between the complainant and the OP No. 1 the OP No. 2 is not responsible for any deficiency in service at the instance of the OP No. 1 and the OP No. 2 having already cancelled the deed of agreement of development and also the power of attorney granted in favour of the OP No. 1, question of impleading the OP No. 2 in the present consumer complaint does not arise at all and as an arbitration proceeding is pending in between the OP No. 1 and the OP No. 2 the consumer complaint is liable to be dismissed.
On perusal of the materials on record we find that in this case the complainants are the bonafide purchasers and that they have already expended/parted with the bulk amount of the consideration money except Rs. 2,25,000/-, which is to be paid at the time of execution and registration of the deed in question in respect of the flat so purchased and that from the evidence that has come before this Commission the case of the complainants have been more or less established. Much has been agitated before us on behalf of the OP No. 2 as regards cancellation of the development agreement and also the power of attorney granted by the OP No. 2 in favour of the OP No. 1, the construction company. But as such action was taken on behalf of the OP No. 1 after commencement of the agreement entered into between the complainants and the OP No. 1 and that too during the subsistence of the agreement for development and power of attorney so granted by the OP No. 2 in favour of the OP No. 1, question of bypassing the legal procedures in the matter of selling of flats to the intending purchasers for valuable consideration cannot be avoided by the landowner like that of the OP No.
2. Much has been agitated before us on behalf of the OP No. 2 that whatever mischief has been done, the same has been done keeping in dark the OP No. 2 in this regard. But considering the definition of Development as provided in West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993, we find that the landowners are also within the ambit of the definition Promoters as per provisions of the aforesaid Act. Having considered the present complaint case in the light of above discussion we are of the considered opinion that the complainants have been able to substantiate their case so far as it relates to purchasing the flat in question for valuable consideration from the Ops, of which the OP No. 1 is the developer and the OP No.2 is the landowner, and we are also of the considered opinion that the complainants are entitled to have the reliefs so far as it relates to direction upon the Ops to execute and register the deed of conveyance is concerned and are also entitled to get compensation from the Ops to the tune of Rs. 2,00,000/- and litigation cost to the tune of Rs. 5,000/- and that the Ops are jointly and severally liable to make the aforesaid payments and execute and register the deed of conveyance in respect of the flat in question after accepting the balance amount of Rs. 2,25,000/- from the complainants within 30 days from the date of the said payment by the complainants, failing which the complainants will be at liberty to have the deed of conveyance executed and registered with the help of this Commission and realize the money through execution proceeding. All the issues are accordingly disposed of in favour of the complainants. In the result, the petition of complaint succeeds in part.
Hence, it is ORDERED that the petition of complaint stands allowed in part on contest against the OP No. 2 and ex parte against the OP No.
1. The Op Nos. 1 & 2 are directed to execute and register the deed of conveyance in respect of the flat in question in favour of the complainants after accepting the balance amount of Rs. 2,25,000/- from the complainants within 30 (thirty) days from the date of such payment by the complainants, failing which the complainants will be at liberty to have the deed of conveyance executed and registered through the machinery of this Commission. The OP Nos. 1 & 2 are further directed to pay compensation to the tune of Rs. 2,00,000/- (Rupees two lakhs only) for harassment, mental agony, etc. suffered by the complainants and litigation cost of Rs. 5,000/- (Rupees five thousand only) to the complainants within 45 (forty five) days hereof, failing which the said amount of Rs. 2,05,000/- shall carry interest @ 9% (nine per cent) per annum till realization in full. The OP Nos. 1 & 2 are jointly and severally liable to execute the said deed of conveyance and to pay the aforesaid amount towards compensation and litigation cost.
MEMBER MEMBER PRESIDENT