State Consumer Disputes Redressal Commission
Sri Prosenjit Ghosh vs Sri Mrinmoy Roy Chowdhury (Developer) on 11 April, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/91/2016 ( Date of Filing : 03 Mar 2016 ) 1. Sri Prosenjit Ghosh S/o, Lt. Biswajit Ghosh, Samarpan Apartment, Flat No.- SE - 2, Ist Floor, J/F - 10/RGM - 5, Aswininagar, P.O - Aswininagar, P.S - Baguiati, Kol - 700 059, Dist - North 24 Pgs, W.B. 2. Smt. Rumki Ghosh W/o, Prosenjit Ghosh, Samarpan Apartment, Flat No.- SE - 2, Ist Floor, J/F - 10/RGM - 5, Aswininagar, P.O - Aswininagar, P.S - Baguiati, Kol - 700 059, Dist - North 24 Pgs, W.B. ...........Complainant(s) Versus 1. Sri Mrinmoy Roy Chowdhury (Developer) S/o, Lt. Bhabani Roy Chowdhury, F - 3/5, Labani Estate, P.S - Bidhannagar North, Kol - 700 064, Dist - North 24 Pgs, W.B. 2. Sri Tarak Nath Roy (Land Owners) S/o, Lt. Paresh Chandra Roy, J/F - 10/RGM - 5, Aswininagar, P.O - Aswininagar, P.S - Baguiati, Kol - 700 059, Dist - North 24 Pgs, W.B. 3. Sri Tapas Kumar Roy S/o, Lt. Paresh Chandra Roy, J/F - 10/RGM - 5, Aswininagar, P.O - Aswininagar, P.S - Baguiati, Kol - 700 059, Dist - North 24 Pgs, W.B. 4. Smt. Anita Roy W/o Sri Krishna Dhan Roy, D/o Lt. Paresh Chandra Roy, J/F-10/RGM-5, Aswininagar, P.O. Aswininagar, P.S. Baguiati, Kolkata-700 059, Dist. North 24 Pgs., W.B. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Rajesh Biswas, Mr. sibaji Sankar dhar, Advocate For the Opp. Party: Ms. Binota Roy, Advocate Mr. Partha Sarathi Ghosh, Advocate Dated : 11 Apr 2019 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 (inadvertently mentioned under Section 12) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of a couple/intending purchasers against the developer/builder (Opposite Party No.1) and the landowners (Opposite Party Nos.2 to 4) on the allegation of deficiency in services on the part of them for non- execution of Deed of Conveyance in respect of a residential flat measuring about 900 sq. ft. super built up area on the 1st floor in a multi-storied building christened 'Samarpan Apartment' lying and situated at Holding No.151/R.G.M.-156/10, P.S.-Baguiati, Kolkata - 700059, Dist- North 24 Parganas within the local limits of erstwhile Rajarhat-Gopalpur Municipality (now Bidhannagar Municipal Corporation).
Succinctly put, Complainants' case is that on 31.03.2015 they had entered into an Agreement for Sale with the opposite parties to purchase the above mentioned flat at a total consideration of Rs.24,00,000/-. The complainants have already paid Rs.6,00,000/- to the developer on diverse dates out of the said total consideration amount. In order to pay the balance consideration amount, the complainants applied for housing loan at Bank of Baroda, College St. Branch but after perusal of all the papers, the bank by a letter dated 03.08.2015 informed that as the registered Power of Attorney dated 27.06.2014 has been revoked on 24.06.2015 they are unable to disburse the said loan. However, after completion of construction works as per sanctioned plan, on 16.12.2015 the OP No.1/developer has handed over the peaceful possession of the said flat in favour of the complainants and also handed over a copy of Completion Certificate to the complainants. The complainants have stated that time and again they requested the OPs to execute the Deed of Conveyance after accepting the balance consideration amount but all their requests and persuasions went in vain. Hence, the complainants have lodged the complaint with prayer for several reliefs, viz. - (a) an order directing the OPs to execute and register the Deed of Conveyance in respect of the flat after receiving the balance consideration money; (b) to pay compensation of Rs.3,00,000/- for harassment and mental agony; (c) cost of the proceedings etc. The Opposite Party No.1/Developer by filing a written version has stated that the OP Nos.2 to 4 being landowners suddenly revoked the Power of Attorney. As a result, thereof, despite handing over physical possession of the flat to the complainants on 16.12.2015, he is unable to execute and register the Deed of Conveyance with respect to the flat in question.
The Opposite Party No.2(one of the landowners) by filing a separate written version has stated that before the revocation of Power of Attorney, the developer has entered into an Agreement for Sale with the complainants on 31.03.2015 keeping completely in dark to them so they could not sign the Agreement for Sale.
The parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their advisories. Besides the same, the parties have also relied upon some documents including the Agreement for Sale dated 31.03.2015. At the time of final hearing, brief notes of arguments have been filed on behalf of OP No.1 and OP Nos. 2 & 3.
On perusal of pleadings, the evidence led by the parties and on having a look to the brief notes of argument filed by the developer and the landowners, it emerges that OP Nos. 2 to 4 are the owners of a piece and parcel of a land measuring about 2 cottahs 9 chittaks together with building standing thereon lying and situated at Holding No.151/R.G.M.-156/10, P.S.-Baguiati, Kolkata - 700059, Dist- North 24 Parganas within the local limits of Ward No.28 of erstwhile Rajarhat-Gopalpur Municipality (now Bidhannagar Municipal Corporation). On 04.11.2010 the landowners had entered into a Development Agreement with the OP No.1 for raising construction of a multi-storied building over the said property. With that aim in view, the landowners had executed one registered Power of Attorney in favour of OP No.1 on 27.06.2014.
It also remains undisputed that on 31.03.2015 the complainants had entered into an agreement with OP No.1 to purchase of a self-contained flat measuring about 900 sq. ft. super built up area on the 1st floor in the said multi-storied building christened 'Samarpan Apartment' at a total consideration of Rs.24,00,000/-. It is also not in dispute that the complainants have already paid Rs.6,00,000/- as part consideration amount to the developer towards the said total consideration amount. It has also not been disputed that the OP No.1 has already constructed the building and obtained Completion Certificate from Rajarhat-Gopalpur Municipality and handed over the possession of the flat in question to the complainants on 16.12.2015.
In the meanwhile, in order to pay the balance consideration amount, the complainants had applied for house building loan with Bank of Baroda, College Street Branch and submitted all the papers. However, by a letter dated 03.08.2015 the Bank has informed the complainants that the registered Power of Attorney executed by the landowners dated 27.06.2014 was revoked on 24.06.2015 for which the bank are unable to disburse the loan.
The factual matrix of the case simply indicates that it is a dispute between the landowners and the developer for which the complainants have become victimised in obtaining the loan from the bank in order to fulfil their cherish ideal to have a roof over their head which in turn preventing them from getting the Deed registered in favour of them.
The OP No.1/developer after completion of construction delivered the possession of the subject flat from developer's allocation. At the time of execution of Agreement for Sale, the Power of Attorney was in vogue. Subsequent to the Agreement for Sale dated 31.03.2015, the Power of Attorney was revoked on 24.06.2015. The fact remains that the landowner has no locus standi to raise any objection in getting the flat in favour of the complainants from the allocation of the developer. The landowners may have genuine grievances against the developer but for which they may take action against the developer by way of an independent proceeding. In a decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati - Vs. - Uppal Agencies Pvt. Ltd. & Anr.] the Hon'ble Supreme Court in Paragrah-23 has observed thus -
"......where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider".
In a decision reported in 2014 (3) CPR 91 [Smt. V. Kamala & Ors. - Vs. - K. Rajiv] the Hon'ble National Commission has observed that an inter-se dispute between owner and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreement and leave the buyer in lurch.
Whatever dispute be there between the landowner and the developer, the same can be settled in an independent proceeding. As per agreement, the landowner has given consent to the developer to transfer the property falling to its share. Therefore, the rights of a bonafide purchaser cannot be defeated only on the ground that the landowner was not a party to the Agreement for Sale executed between the developer and the buyer.
Therefore, relying upon the materials on record, we have no hesitation to hold that complainants are entitled to an order of getting the execution of Sale Deed in their favour subject of payment of balance consideration amount to OP No.1/developer. The landowners without lodging any complaint either before a Forum constituted under the Act or before a competent Civil Court are sitting over tight to execute the Sale Deed from the allocation of developer and thereby they are being deficient in rendering services must pay compensation to the complainants and considering the fact that the complainants are already in possession of the flat, we think a compensation of Rs.30,000/- in the facts and circumstances will meet the ends of justice. Under compelling circumstances, the complainants had to lodge the complaint and as such they are also entitled to litigation cost which we quantify at Rs.15,000/- to be paid by OP Nos. 2 to 4 jointly.
In view of the discussion above, the complaint is allowed on contest with the following directions:-
The Opposite Parties are jointly and severally directed to execute the Sale Deed in favour of the complainants on payment of stamp duty and registration charges and also the balance consideration amount of Rs.18,00,000/- to be paid by the complainants in favour of Opposite Party No.1 within 90 days from date;
The Opposite Party Nos. 2 to 4 are directed to pay compensation of Rs.30,000/- in favour of the complainants within 60 days from date;
The Opposite Party Nos. 2 to 4 are directed to pay Rs.15,000/- to the complainants as costs of litigation;
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER