State Consumer Disputes Redressal Commission
Smt. Bina Devi Kejriwal, Salkia, Howrah vs Smt. Chabi Devi Gupta, Salkia, Howrah on 25 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.FA/72/2011 (Arising out of order dated 31/08/10 in Complaint Case No.HDF 6 of 2010 of District Consumer Disputes Redressal Forum, Howrah) DATE OF FILING:14/02/11 DATE OF FINAL ORDER:25/07/12 APPELLANT : Smt. Bina Devi Kejriwal W/o-Sri Kishan Kumar Kejriwal 11/1, Koldanga Lane (Surendranath Chatterjee Lane), Salkia Bandhaghat, P.S. Malipanchghora District-Howrah RESPONDENT : Smt. Chabi Devi Gupta W/o-Sri Jhulan Prosad Gupta 9, Arabinda Road (3rd floor) Salkia, P.S. Malipanchghora District-Howrah BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. D.D. Sharma Ld. Advocate FOR THE RESPONDENT : Mr. Aloke Mukhopadhyay Ld. Advocate S.C. CASE NO.FA/567/2010 (Arising out of order dated 31/08/10 in Complaint Case No.HDF 6 of 2010 of District Consumer Disputes Redressal Forum, Howrah) DATE OF FILING:27/09/10 DATE OF FINAL ORDER:25/07/12 APPELLANT : Smt. Chabi Devi Gupta W/o-Sri Jhulan Prosad Gupta 9, Arabinda Road (3rd floor) Salkia, P.S. Malipanchghora District-Howrah RESPONDENT : Smt. Bina Devi Kejriwal W/o-Sri Kishan Kumar Kejriwal 11/1, Koldanga Lane (Surendranath Chatterjee Lane), Salkia Bandhaghat, P.S. Malipanchghora District-Howrah BEFORE : HONBLE JUSTICE : Sri Kalidas Mukherjee President HONBLE MEMBER : Sri S. Coari HONBLE MEMBER : Smt. M. Roy FOR THE APPELLANT : Mr. Aloke Mukhopadhyay Ld. Advocate FOR THE RESPONDENT : Mr. D. D. Sharma Ld. Advocate : O R D E R :
HONBLE JUSTICE SRI KALIDAS MUKHERJEE, PRESIDENT These are the two appeals bearing no.FA 72/2011 and FA 567/2010 arising out of the same judgment passed by the Learned District Forum, Howrah in case no.6 of 2010. The Learned District Forum allowed the complaint directing the OP to execute and register the deed of conveyance in respect of the flat no.3 in the 2nd floor of the building constructed at premises no.11/1, Koldanga Lane (Surendranath Chatterjee Lane), Salkia, Bandhaghat, P.S. Malipanchghora, Howrah after payment of the amount of Rs.45,000/- by the complainant to the OP for the excess of area of 98 sq. ft. agreed between the parties. There was further direction upon the OP to pay the sum of Rs.5,000/- as compensation for unnecessary harassment, agony and pain to the complainant. There was further direction upon the OP to repair the damage caused due to water tank situated on the roof of the flat in question by the OP, failing which the OP will pay the repairing cost of Rs.25,000/- to the complainant within one month from the date of order. FA 567/2010 has been filed by the vendor and the purchaser has filed the FA 72/2011 being aggrieved by the impugned judgment and order.
The case of the complainant, in short, is that by an agreement dated 21/01/98 entered into by and between the complainant and the OP, the OP agreed to sell and the complainant being a purchaser agreed to purchase the eastern side of flat no.3 in the second floor measuring about 589 sq. ft. including super built-up area of the building to be constructed at premises no.11/1, Koldanga Lane, owned by the OP/vendor at a total consideration of Rs.2,33,750/- only free from all encumbrances whatsoever.
After the flat was constructed the OP claimed that the said flat was measuring about 648 sq. ft. of super built-up area and upon such representation made by the OP it was agreed that the complainant will pay total consideration of the flat amounting to Rs.2,75,000/-.
The complainant has already paid total sum of Rs.2,85,200/-, more than the total agreed consideration amount.
The said flat was not complete in all respects, but as the complainant was facing serious inconveniences the OP very reluctantly delivered possession of the flat to the complainant on 07/10/2000 in incomplete condition. The OP has not yet executed and registered the deed of conveyance in respect of the said flat. In spite of repeated requests the OP has not taken any steps to shift the water tank at the appropriate place after removing the same from the roof just above the flat of the complainant which is causing damp in the walls and leakage. Moreover, the OP caused damages to the roof attempting to install tower on the roof for which the complainant along with other flat holders were compelled to initiate legal proceeding against the OP. Several letters were written to the OP, but to no effect. For the said reasons, the complaint was filed before the Learned District Forum.
The Learned Counsel for the vendor/appellant has submitted that a part of the building was agreed to be sold to the respondent and it was merely a sale simpliciter and the relationship between them is vendor and purchaser. It is contended that there is nothing to show the hiring of service. It is submitted that the vendor in order to raise construction was in need of fund and for that purpose wanted to sell a portion of the house which the respondent agreed to purchase. It is submitted that the vendor cannot be said to be a promoter/builder.
It is submitted that there is no report as to the alleged damage at the roof of the flat for installation of reservoir.
It is submitted that the Learned District Forum has directed this appellant to cause repair in default to pay Rs.25,000/- to the complainant. It is submitted that there is no basis as to how the amount of Rs.25,000/- was calculated.
The Learned Counsel has further submitted with reference to Section 6 of The West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 that the Consumer Forum has no jurisdiction to entertain any dispute as to the construction and development of a building and such dispute can be decided by the officer appointed by the State Government in this respect. It is contended that the agreement was executed on a stamp paper of Rs.10/- which was insufficient and the Learned District Forum did not impound the said document. It is contended that such agreement is not enforceable under the law. The Learned Counsel for the appellant/vendor in FA No.567/2010 has referred to the decisions reported in (2012) WBLR (Cal) 261 [Smt. Rita Das Vs. Mrs. Jayashri Ghosh & Ors.]; 2006 (1) CHN 401 [Narayan Chandra Ghosh & Anr. Vs. Biswajit Lahiri]. The Learned Counsel for the vendor has referred to the provision contained in section 2(g) of The West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 and submitted that the vendor herein is not a promoter/builder.
The Learned Counsel for the respondent in FA No.567 of 2010 and the appellant in FA No.72 of 2011 has submitted that it was a composite agreement for sale for construction of a flat and to convey title to the purchaser. It is contended that the contention of the vendor that construction was raised in a portion of the building for her personal use and in order to raise fund she agreed to sell the flat in question to the purchaser, does not hold good. It is submitted that the agreement does not show that it was a sale simpliciter in respect of a portion of a house property.
It is contended that the vendor neither resides in the said building nor it was for her own occupation as it would transpire from the cause title of the Memo of Appeal that the vendor resides elsewhere. The Learned Counsel has referred to the provision contained in section 2(o) and section 3 of the C. P. Act. The Learned Counsel has referred to the decisions reported in (2002) 3 WBLR (CPSC) 174 [Smt. Rita Das Vs. Mrs. Lucy Dutta and Ors.]; AIR 2005 CALCUTTA 108 [Mandira Mookerjee Vs. District Consumer Disputes Redressal Forum and Ors.]; 2004 (1) CHN 363 [Mendarian Enterprises Pvt. Ltd. and Ors. Vs. Inspector General of Registration, Range-I and Ors.].
So far as the question of execution of the agreement on a stamp paper of Rs.10/- is concerned, it appears from the decision in the case of Smt. Rita Das Vs. Lucy Dutta and Ors. (supra) that the question of insufficiency of stamp paper has already been decided by this Commission in favour of the consumer. Insufficiency of stamp paper and non-registration of the agreement was also considered and decided in favour of the consumer in the case of Mandira Mookerjee Vs. District Consumer Disputes Redressal Forum and Ors. (supra). It was also held therein that the agreement was a composite agreement which included house construction and various services including registration of deed of conveyance. It further appears that both parties are relying on the same agreement and under such circumstances the question of insufficiency of the stamp paper and non-registration of the agreement cannot be raised in a proceeding under the summary procedure and, especially, when at different stages of the proceeding the definite time limit has been fixed from the institution of the complaint till the delivery of judgment under the C.P. Act, otherwise the very purpose and object of the Act will be frustrated.
The contention of the Learned Counsel for the vendor is that the appellant being a vendor cannot be said to be a promoter/builder in view of the provision contained in section 2(g) of The West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. The provision contained in section 2(g) runs thus.
promoter means a person who constructs or causes to be constructed a building on a plot of land for the purpose of transfer of such building by sale, gift or otherwise to any other person or to a company, co-operative society or association of persons, and includes-
(i) his assignee, if any,
(ii) the person who constructs, and the person who transfers by sale, gift or otherwise, the building, if the two are different persons, 2[(iii) ***] 3[(iv) ***]
(v) any board, company, corporation, firm, or other association of persons, established by or under any law for the time being in force;
Provided that notwithstanding anything contained elsewhere in this Act or in any other law for the time being in force, a person shall be deemed to be a promoter if he constructs or causes to be constructed, a building with height of 9.5 metres or more and on a plot of land measuring three hundred square metres or above or if he constructs or causes to be constructed a building consisting of flats in excess of the requirements of the members of his family;
It appears from the agreement dated 21/01/98 that Chabi Devi Gupta is the vendor and Smt. Bina Devi Kejriwal is the purchaser.
There is no other party in the said agreement. Now the question is whether or not the vendor can be said to be a promoter/builder.
The contention of the Learned Counsel for the vendor is that the vendor due to her financial stringency could not raise construction and, as such, wanted to sell a portion of the building in order to raise fund. In page 3 of the agreement there is an averment that due to financial constraint the vendor approached the purchaser to sell the flat no.3 in the second floor measuring about 550 sq. ft. at 11/1, Koldanga Lane ( Surendranath Chatterjee Lane), Salkia. According to section 2(g) a person who constructs and causes to be constructed a building can be said to be a promoter. Under section 2(j) the expression to construct a building means (i) to construct a new building or
(ii) to reconstruct a building or (iii) to convert a building, or any part of a building, not being a flat or block, into a flat or block. So even if the vendor wants to raise construction in a portion of the building, she can be described as a promoter within the meaning of 2(g) and 2(j) of The West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. As to the height of the building and the area of the plot of land, the proviso to section 2(g) also does not come in the way of the vendor being called a promoter.
The Learned Counsel for the vendor has referred to the decision reported in the case of Smt. Rita Das Vs. Mrs. Jayashri Ghosh & Ors. (supra) and submitted that under section 6 of The West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 any dispute regarding the purchase of any flat is to be decided by such officer as may be prescribed by the State Government and the Consumer Forum has no jurisdiction to entertain such dispute. On this point the Learned Counsel for the purchaser has referred to the decision in the case of Mandira Mookerjee Vs. District Consumer Disputes Redressal Forum and Ors. (supra) wherein it has been held that the Consumer Forum is competent and has jurisdiction to grant the relief of execution and registration of the conveyance as per the terms of contract involved. The Learned Counsel for the purchaser has also referred to the observation of the Honble High Court as made in paragraph 22 in the case of Smt. Rita Das Vs. Jayashree Ghosh and Ors. (supra) wherein it has been held as follows:
By respecting the judicial discipline as well as Article 141 of the Constitution of India, I am bound by the law declared by the Apex Court as well as the Division Bench and thus hold that the Consumer Forum is competent to pass an order for execution and registration of the title deed.
The Learned Counsel for the vendor in this respect has referred to the observation of the Honble High Court as made in paragraph 25 in the case of Smt. Rita Das (supra) which runs as follows:
Thus even if the remedies under the Consumer Protection Act is in addition to and not in derogation with any other law but while granting such remedy, the forum cannot bypass the relevant provisions of the special statute and usurp unlimited jurisdiction. Upon being excluded expressly if the civil Court does not have jurisdiction, the consumer forum cannot exercise jurisdiction under Section 3 of the said Act.
In the decision reported in 1999 (3) CPR 67 (SC) [Mr. France B. Martins and Anr. Vs. Mrs. Mafalda Maria Teresa Rodrigues] it has been held by the Honble Apex Court that where builder though delivered flat as per agreement but failed to execute sale deed, Consumer Commission was justified in giving direction to builder for specific performance of agreement.
In another decision reported in 2011 (3) CPR 504 (NC) [M/s R.N.A. Builders (NG) and Anr. Vs. Shri Sujit Kumar Mishra and Anr.] it has been held by the Honble National Commission that the builder cannot deny possession of flat after accepting full consideration amount. In another decision reported in 2011 (4) CPR 235 (NC) [Mr. Ghansi Ram Lal Shah Vs. Smt. Supriya Suhas Sarmalkar & Ors.] it has been held by the Honble National Commission that the developer cannot resile from the agreement.
Here in the instant case there is stipulation in the agreement for execution and registration of the deed of conveyance and, as such, the owner/developer cannot refrain from executing and registering the deed of conveyance in favour of the purchaser.
In another decision reported in 2011 (4) CPR 162 (NC) [K. Radha Krishnan, I.P.S. (Retd.) Vs. Karnataka Consumers Forum (Regd.) and Ors.] it has been held that Consumer Protection Act provides an additional remedy which is not in derogation to any other remedy.
In the decision reported in 2008 CTJ 954 (CP) (NCDRC) [NCDRC Bar Association (Regd.) Vs. Davinder Malhotra and Ors.] it has been held by the Honble National Commission as follows:
Hence, unless there is a contrary judgment by the Apex Court, the State Commission is bound to follow the decision rendered by the National Commission. Further, if there are conflicting decisions rendered by the National Commission, the State Commission may decide the matter appropriately accepting one or the other judgment.
From the above decisions of the Honble Apex Court and the Honble National Commission it has become the well settled position of law that the Consumer Forum has the jurisdiction to entertain disputes arising out of the construction and development agreement.
As to the merit of the matter it is the contention of the complainant as averred in the complaint that the flat was not completed on all respects and the OP has not taken any steps to shift the water tank at the appropriate place after removing the same from the roof of the flat of the complainant and it has caused damage of valuable goods and articles.
It has also been averred that the OP has not executed and registered the deed of conveyance and the complainant wrote several letters to the OP, but to no effect. The Learned District Forum has considered the evidence and discussed all the points involved. The Learned District Forum towards the end of the judgment observed that in course of argument the Learned Counsel for the complainant agreed to pay Rs.45,000/- for the extra measurement of the flat and for that reason the Learned District Forum has directed the complainant to pay Rs.45,000/- to the OP for the excess area of the flat as agreed between the parties. It is well settled that submission of a Learned Counsel in course of the argument can be treated as admission of the party. Not only that a joint petition was also filed before the Learned District Forum on 15/07/10 stating that the dispute was amicably settled by the parties and it was agreed that the OP shall execute the deed of sale without any terms extraneous to the agreement for sale in favour of the complainant upon payment of a sum of Rs.45,000/- only by the complainant and a draft deed of sale shall be delivered to the Learned Advocate of the OP by the complainant. The draft deed of sale is also lying with the record. Under such circumstances, we are of the considered view that the Learned District Forum was justified in passing the impugned judgment and there is no reason to interfere with the same in these appeals.
In the result, both the appeals fail and stand dismissed. The impugned judgment is hereby affirmed. We make no order as to costs. This judgment will govern both the Appeal bearing nos. FA 72/2011 and FA 567/2010.
MEMBER(SC) MEMBER(L) PRESIDENT