State Consumer Disputes Redressal Commission
Bidyut Barn Pan vs Aditya Mukherjee on 5 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/284/2013 1. Bidyut Barn Pan S/o Late Sreepati Charan Pan, C/o Swetabja Roy, 39/2, Shib Narayan Das Lane, Kolkata - 700 006. 2. Smt. Aparna Pan W/o Sri Bidyut Baran Pan, C/o Swetabja Roy, 39/2, Shib Narayan Das Lane, Kolkata - 700 006. ...........Complainant(s) Versus 1. Aditya Mukherjee Director, M.Aditya & Associates Pvt. Ltd., AE-228, Salt Lake, Sector-I, Kolkata - 700 064. 2. Smt. Keya Mukherjee W/o Aditya Mukherjee & Director, M.Aditya & Associates Pvt. Ltd., AE-228, Salt Lake, Sector-I, Kolkata - 700 064. 3. Abhijit Dutta Roy S/o Late Amalesh Chandra Dutta Roy, 19, Circus Row, Kolkata - 700 017. 4. Debjani Dutta Roy D/o Late Amalesh Chandra Dutta Roy, 19, Circus Row, Kolkata - 700 017. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr. Subrata Mondal, Advocate For the Opp. Party: none appears Dated : 05 Jan 2017 Final Order / Judgement Date of filing: 27-11-2013 Date of hearing: 27-12-2016 PER HON'BLE MRIDULA ROY, MEMBER
The instant petition of complaint filed u/s 17 of the Consumer Protection Act, 1986 by Sri Bidyut Barn Pan and Smt. Aparna Pan alleging deficiency in service on the part of Sri Aditya Mukherjee and Smt. Keya Mukherjee, the Developers and Sri Avijit Dutta Roy and Smt. Debjani Dutta Roy as the Land Owners in relation to Housing Construction Service.
The case of the Complainants in brief is that the Complainant No. 1 and his wife i.e. the Complainant No. 2 being attracted to an advertisement published in the daily newspaper namely The Sunday Statesmen dated 17.05.1998 made contact to Solace Real Estate Management Pvt. Ltd, C.F - 157, Salt Lake for having a deluxe flat at a building to be constructed on a corner plot at Salt Lake Sector - I at a consideration of Rs 20,51,000/-. Visiting office of the Solace Real Estate Pvt. Ltd. the Complainant came to know that M/S M. Aditya and Associates Pvt. Ltd entered into an agreement for development on 1st August 1996 with Sri Avijit Dutta Roy, Smt. Debjani Dutta Roy and Smt. Bandana Roy, the Land Owners in respect of Development of a piece of land measuring 5.1115 Cottahs of land at Plot No. 248 Block - BF, Sector - I Bidhannagar, P.S - Salt Lake, District - 24 Parganas (North) pursuant to a registered date of lease dated 27.04.1989 executed by and between the Governor of West Bengal and the afore said parties which was registered in the office of Additional District Sub Registrar, Bidhannagar. The lessee executed a Power of Attorney in favour of the Developer to deal with the allocation of the Developer as agreed vide the terms of the agreement dated 01.08.1996. The Complainants further stated that on execution of an agreement for sale dated 24.06.1998 with the Opposite Parties they had paid a sum of Rs 03,00,000/- and 02,35,520/- by cheques dated 24.06.1998 and thereafter paid certain sum by instalments and in this way paid Rs 14,00,000/- in total. The Complainants also stated that as per terms of the agreement dated 24.06.1998 it was agreed by the O.P Nos 1 & 2 being the Directors of M/s M. Aditya and Associates Pvt. Ltd to hand over the possession of the flat in question within the period of 6 months from the date of execution of the said agreement. However, the O.P No. 2 by a letter dated 12.06.1999 intimated the Complainants that due to some unavoidable circumstances the construction work had been stopped and also intimated in the said letter that the 1st Floor being the subject matter of said agreement would be completed by September 1999. Subsequently, in April 2000 the O.P Nos 1 & 2 requested the Complainants to receive possession of the incomplete flat as they expressed their inability to complete the said flat and agreed to refund sum of Rs 02,00,000/- out of the amount of Rs 14,38,459/- paid towards consideration of the flat. The Complainants accepted the proposal and accordingly the O.P Nos 1 & 2 handed over the incomplete flat situated on the 1st Floor. The Complainants further stated that they had to spend Rs 05.30 Lacs to make the said flat habitable. The Complainants have further stated that they have been requesting the Opposite parties to execute and register the Deed of Conveyance since receiving the possession of the flat but to no effect. The Complainants further stated that the Complainants presented the cheque issued by the Opposite Party Nos 1& 2 to the Banker of the Complainants but upon presentation the cheques was returned with remark "insufficient fund" but on request of the O.P Nos 1 & 2 they did not take any legal action in respect of the dishonoured cheque. It is also stated by the Complainants that the Land Owners i.e. the Opposite Party Nos 3 & 4 started creating disturbance to the Complainants such as disconnecting the electricity and the water supply connection to the flat of the petitioner in respect of which the Complainants filed a declaratory suit before the Ld. Civil Judge Senior Division 2Nd Court at Barasat under title suit No. 76 of 2002. However,another title suit being No. 213 of 1999 was instituted by the Land Owners praying for a decree of specific performance of agreement and therefore to deliver the allocation of the land owners by Opposite Party Nos 1 & 2 being the Developers. In the said suit the Complainants had not been made party. An order was passed on 19.11.1999 directing the parties to the title suit No. 213 of 1999 to maintain status quo. It is further stated by the Complainants that the Opposite party Nos 1 & 2 preferred an appeal before the Ld. District Judge at Barasat being Misc Appeal No. 214/ 1999 for stay of the order of status quo but the prayer of the Developer had been rejected by the Ld. District Judge at Barasat. It is further stated by the Complainants that the Opposite Party Nos 1 & 2 thereafter, preferred a Revisional Application before the Hon'ble High Court at Calcutta being C.O No. 710/2000 against the rejection order and the said Revisional Application was disposed by an order dated 06.04.2000 directing the Parties not to transfer alienate or part with possession of any portion constructed out of the C Schedule Property in the agreement dated 01.08.1996. It is further stated the Opposite Party Nos 3 & 4 preferred a contempt application in connection with an order dated 06.04.2000 in C.O. No. 710/2000 alleging that the O.P Nos 1 & 2 entered into an agreement with the Complainant on 29.09.2000 and thereafter handed over possession of a flat in spite of having knowledge of the order dated 06.04.2000 in C.O. No. 710/2000. Subsequently, by an order dated 20.05.2004 passed in C.O. No. 710/2000 one Mr. Amit Kumar Pan appointed as special officer who was directed to take possession of the said flat of the Complainants and the Complainants being the Law abiding citizens handed over the possession of the said flat to the Special Officer on 04.06.2004. The Complainants having learned the existence of title suit No. 213 of 1999 the Complainants made an application under Order 1 Rule 10 of the Code of Civil procedure but the said allocation was rejected by the Ld. Judge Senior Division 2nd Court Barasat against which the Complainants preferred a Revisional Application before the Hon'ble High Court Calcutta but the same was also rejected. The Complainants thereafter preferred an application being No. 6396 of 2004 praying for to allow the Complainants to decide in the said flat and directed the Ld. Special Officer t take symbolic possession with undertaking that they shall vacate the said flat subject to the decision of the same. However, after handing over the possession of the said flat he was informed by the local people that some addition and alteration was done in the said flat and being informed such the Complainants visited the chamber of Ld. Special Officer who remain silent on the matter and finding no other alternative the Complainants filed an application being No. 8755 of 2008 praying for a direction upon the Ld. Special Officer to take possession of the said flat and fix a pad lock with the help of Officer In Charge after removing the Opposite party Nos 3 & 4 therefrom. The Complainants further stated that both the applications being Nos CAN 6396 of 2004 and CAN 8755 of 2008 were taken up for hearing and Order was passed on 15th December 2011 disposing the both applications without considering the grievance of the Complainants. Having no other alternative the Complainants have prayed for direction upon the Opposite Parties to hand over the possession of the flat in terms of agreement dated 24.06.1998, in default to refund the amount of Rs 14,38,459/- plus Rs 5.30 Lacs aggregating Rs 19,68,459/- along with interest @ 18% p.a, to pay Rs 01,00,000/- to the Complainants towards compensation for mental agony and harassment and to pay Rs 50,000/- towards cost of litigation.
In spite of service of notice upon the Opposite Parties they did not turn up and the case was fixed for ex parte hearing.
Ld. Advocate for the Complainants, in course of ex parte hearing, has submitted that the Complainants had paid a hefty amount long back towards part consideration of the flat they intended to purchase but subsequently, the said flat had not been registered in favour of them though the same ought to have been done by the Opposite Parties.
The Complainants adduced evidence on affidavit.
On perusal of the documents on record it appears that the Complainants themselves stated that the Court of Ld. Civil Judge, Senior Division at Barasat passed an Order dated 19.11.1999 in title suit No. 213 of 1999 directing the parties (Land Owners and The Developers herein) to maintain status quo regarding the property in dispute of the instant Complaint Case. The Complainants further stated that the Appeal and the Revisional Application preferred by the parties to impeach the order dated 19.11.1999 were rejected. It implies that the Order dated 19.11.1999 is still in force. It further appears from the record that the Opposite Parties entered into an agreement for sale on 24.06.1998 with the Complainants. Therefore, it is evident that the agreement for sale was executed prior to the date of the Order dated 19.11.1999. The Developers as well as the Land Owners vide Order dated 19.11.1999 were directed to maintain status quo and thereafter vide order dated 06.04.2000 were restrained from transfer, alienate or part with possession of any portion constructed out of the property described under the schedule C of the agreement dated 24.06.1998 which includes the flat in question. Therefore, non registration of Deed of Conveyance cannot be considered as the outcome of the Developers' negligence specially keeping in mind that they have delivered possession of the said flat to the Complainants in April 2000.
However, to protect the interest of the Consumers we are to consider the prayers other than registration of Deed of Conveyance since there is an order for status quo and, therefore, an order for execution and registration of Deed of Conveyance will be mere nullity. It appears from the photocopies of money receipts that the Complainants had paid Rs 14,38,459/- to the Developers. It further appears that an amount of Rs 5,30,000/- was spent by the Complainants for the flat. However, the amount of Rs 5,30,000/- has been spent voluntarily by the Complainants to make the flat habitable. The Complainants spent such hefty amount of RS 5,30,000/- with the property on which their title has not been register. The Developers who were party to the agreement for sale are liable to refund the amount which they have received from the Complainants but not the amount which the Complainants spent voluntarily for the flat in question.
In such view of the matter, the Complainants are entitled to get the deposited amount of Rs 14,38,459/- from the Developers. Since the fate of the flat in question has not been determined so far none can be held liable to refund the amount spent for the said flat by the Complainants.
The Complainants prayed for an order for payment of interest @ 18% p.a. accrued on the refundable amount by the Opposite Parties but facts remains that the refundable amount as received by the Developer has not been rolled in their business since the business of development of the property in dispute has been stalled by Order of a Competent Civil Court of Law. Therefore, no interest is allowed.
The Complainants prayed for payment of Rs 1,00,000/- by the Opposite Parties towards compensation but no intentional laches on the part of the Developer has been proved so far so that they may be held liable to compensate the loss suffered by the Complainants. The prayer for award of cost is also not allowed under the same view.
In the result, the Complaint succeeds in part. It is accordingly, Hence, Ordered that the instant Complaint being No. CC/284/2013 is allowed ex parte in part and dismissed against the O.P Nos 3 & 4 without any order as to costs.
The O.P Nos 1 & 2 are directed to refund Rs 14,38,459/- to the Complainants within 15 days from the date of communication of this order failing which the said amount will carry interest @ 9% p.a. for default period.
The Registrar of this Commission is directed to send copies of the order to the Opposite Parties at free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER