State Consumer Disputes Redressal Commission
Smt. Basana Roy Chowdhury vs Sri Sanjeet Biswas on 30 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/1012/2013 (Arisen out of Order Dated 19/07/2013 in Case No. cc/276/2012 of District North 24 Parganas) 1. Smt. Basana Roy Chowdhury W/o Late Amulya Ratan Roy Chowdhury, 543, R.A. Sarani, P.S. Airport, Dist. North 24 Pgs., Kolkata - 700 051. 2. Smt. Minu Mitra (Roy Chowdhury) D/o Late Amulya Ratan Roy Chowdhury, 543, R.A. Sarani, P.S. Airport, Dist. North 24 Pgs., Kolkata - 700 051. 3. Sri Sanjay Roy Chowdhury S/o Late Amulya Ratan Roy Chowdhury, 543, R.A. Sarani, P.S. Airport, Dist. North 24 Pgs., Kolkata - 700 051, presently at C/o Amlan Dutta, 150, M.B. Road, Kamal Park, P.O. Birati, Kolkata-700 051. ...........Appellant(s) Versus 1. Sri Sanjeet Biswas S/o Sri Samar Biswas, 171, Bisharpara, Birati, P.O. Bisharpara, P.S. Airport, Dist. North 24 Pgs., Kolkata - 51. 2. M/s. Saroj Consortium A proprietorship firm, 129, Kabi Nabin Sen Road, P.S. Dum Dum, Kolkata -700 028. 3. Amitabha Ghosh S/o Sri Swapan Ghosh, 129, Kabi Nabin Sen Road, P.S. Dum Dum, Kolkata -700 028. 4. Sri Subrata Banerjee S/o Late Ganesh Prasad Banerjee, C/o Kanailal Kundu, AA-7/2A, Deshbandhu Nagar, Baguihati, Kolkata - 700 059. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Siddhartha Sardar, Advocate For the Respondent: Mrs. Lila Bhattacharyya, Advocate Ms. Keka Chakraborty, Mr. Uttiya Saha, Advocate Dated : 30 Jan 2017 Final Order / Judgement
Date of Filing - 13.09.2013 Date of Hearing - 20.01.2017 The assail in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Judgement/Final Order dated 19.07.2013 made by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no.276/2012 whereby the consumer complaint initiated by the Respondent no.1 Sri Sanjeet Biswas under Section 12 of the Act was allowed on contest with certain directions upon the Opposite Parties to execute and register the Deed of Conveyance in favour of the Complainant, impose penalty of Rs.50,000/- against the Appellants/Landowners and also in case of Police help, the Appellants/Landowners shall have to pay further damages of Rs.40,000/-.
The Respondent no.1 herein being Complainant lodged the complaint asserting that he has entered into an agreement with the OP no.1/developer on 19.12.2008 to purchase of a self-contained flat measuring and area of 896 sq. ft. being Flat No.2/02 on the 2nd floor in the newly constructed building named as 'Shivangan' lying and situated at Holding No.5/543, R.A. Sarani, P.S.- Airport, Kolkata - 700051, Dist- North 24 Parganas at a total consideration of Rs.8,51,200/- @ Rs.950/- per sq. ft. The Complainant has stated that he has paid Rs.5,94,500/- out of total consideration amount on diverse dates. As per terms of the agreement, the OP no.1 was under obligation to hand over the possession of the flat on August, 2010. The Complainant submits that on several occasions he requested the OPs to give possession of the flat and to execute the Deed of Conveyance but the OPs in collusion and connivance with their Hench man are trying to evade their responsibility. Hence, the Respondent no.1 approached the Ld. District Forum with prayer for certain reliefs including issuance of Completion Certificate, Execution of Deed of Conveyance, compensation of Rs.1,00,000/- etc. The Respondent no.3 being OP no.1(i) has filed written version but did not contest. The Respondent no.4 i.e. OP no.1(ii) by filing written version has submitted that there was dispute in between two partners and all the decisions relating to the agreement in question was taken by OP no.1(i) unilaterally.
No other OPs appeared before the Ld. District Forum to contest.
After evaluation of the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the OPs, as indicated above, which prompted the OP nos.2 to 4/Landowners to prefer this appeal.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record, it would reveal that the Appellants herein are the owners in respect of a piece of a land measuring about 2 cottahs and 8 chhitaks in Plot no.09 and 2 cottahs, 8 chhitaks and 32 sq. ft. in Plot no.6 totalling 5 cottahs 32 sq. ft. and after amalgamation, it has been numbered as Holding No.5/543, R.A. Sarani, P.S.- Airport, Kolkata - 700051, Dist- North 24 Parganas. Admittedly, on 06.05.2006 the Appellants/Landowners had entered into an agreement with Respondent no.2/developer for raising a multi-storied building over the said property. In the process, the landowners have also executed a Registered Power of Attorney authorising the developer to obtain building sanction plan from the Municipality and floated offers inviting purchasers to purchase the self-contained flat. The developer had obtained the building plan sanctioned from the North Dumdum Municipality on 15.11.2006.
It is also not in dispute that on 19.12.2008, the Respondent no.1 has entered into an agreement with the Respondent no.2 to purchase of a self-contained flat measuring an area of 896 sq. ft. being Flat No.2/02 on the 2nd floor in the newly constructed building named as 'Shivangan' lying and situated at Holding No.5/543, R.A. Sarani, P.S.- Airport, Kolkata - 700051, Dist- North 24 Parganas at a total consideration of Rs.8,51,200/- @ Rs.950/- per sq. ft. In accordance with the terms of the agreement, the Respondent no.1 has paid Rs.5,94,500/- out of the full consideration amount on different dates. The Respondent no.1 is ready and willing to perform his part of obligations but the landowners are practically stand in the way to translate the Agreement for Sale into execution of Sale Deed.
Ld. Advocate appearing for the Appellants has submitted that they had no knowledge about the complaint case and on receiving the notice of execution case, they came to know about the same. Ld. Advocate for the Appellants has also submitted that the landowners had been deprived of getting their allocations as per terms and conditions of the Development Agreement and the developer also did not pay the amount which was required to be paid in accordance with the terms of the Development Agreement.
Ld. Advocate for the Respondent no.1 has contended that the dispute between the landowners-developer cannot be a ground to deprive them from getting the flat registered in the name of the Complainant.
Mr. Prabir Basu, Ld. Counsel for the Respondent no.2/developer has submitted that the developer is ready and willing to execute the Sale Deed and the landowners at their own sweet will put the lock of the flat in question under key.
I have considered the rival contention of the parties. The Respondent no.1 had entered into an agreement with Respondent no.2 to purchase the subject flat on a valuable consideration. The Appellants/landowners authorised the Respondent no.2 to raise such construction. Now, the dispute between the landowner and the developer cannot defeat the object of the Agreement for Sale. In Paragraph-23 of a decision of Hon'ble Supreme Court reported in (2008) 10 SCC 345 (Faqir Chand Gulati - vs. - Uppal Agencies Pvt. Ltd. & Anr.) it has been observed that where the building/developer commits breach of his obligation, the owner has two options. He has the right to enforce a specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under the C.P. Act for relief as consumer against the builder as a service provider.
Therefore, the Ld. District Forum did not commit any wrong by directing the OPs to execute the Sale Deed of the subject flat on receipt of balance consideration amount.
However, the Ld. District Forum had no occasion to impose punitive damages of Rs.50,000/- upon the landowners. In the petition of complaint, Complainant did not aver about the suffering of punitive damages by the other consumers nor was the Appellants were aware that any such claim is to be met by it. Normally, punitive damages are awarded against a conscious wrong doing unrelated to the actual loss suffered and such a claim has to be specifically pleaded. In a landmark decision reported in (2015) 1 SCC 429 (General Motors (India) Pvt. Ltd. -vs. - Ashok Ramnik Lal Tolat & Anr.) the Hon'ble Supreme Court proceeded to observe - "The Court is conscious that having regard to the laudable object of the social legislation to protect the interest of the consumers, liberal and purposive interpretation has to be placed on the scheme of the C.P. Act avoiding hyper technical approach. At the same time, fair procedure is the hallmark of every legal proceeding and an affected party is entitled to be put to notice of the claim which such affected party has to meet".
Considering the proposition of law, I have no hesitation to hold that the Ld. District Forum has misdirected itself in passing an award of punitive damages and as such the said part of the order is liable to be set aside.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, I am of the view that the order regarding execution of Sale Deed after receipt of balance consideration of Rs.2,56,700/- and delivery of possession should be upheld but the order with regard to imposition of punitive damages of Rs.50,000/- should be set aside.
With the above observations, I modify the impugned judgement to the extent that the Appellants/OP nos. 2 to 4 shall be exempted from payment of Rs.50,000/- on account of unfair trade practice.
Accordingly, the instant appeal is allowed on contest in part but without any order as to costs.
The impugned Judgement/Final Order is modified to the extent as indicated above.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER