State Consumer Disputes Redressal Commission
Sri Abanindra Nath Roy vs Smt. Sandhya Pyne on 10 January, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/103/2016 1. Sri Abanindra Nath Roy S/o, Lt. Shanti Priya Singha Roy, 15/B, Raja K.L. Goswami Street, P.O - Serampore, P.S - Serampore, Dist - Hooghly, Pin - 712 201. ...........Complainant(s) Versus 1. Smt. Sandhya Pyne W/o, Lt. Jaganath Pyne, 15/B, 15/B, Raja K.L. Goswami Street, P.S - Serampore,Dist - Hooghly, Pin - 712 201. 2. M/s. Ganapati Construction, Rep. by its Partners. 215/A, G.T. Road, P.O - Serampore, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 3. Sri Amit Kumar Bhattacharjee S/o, Lt. Arun Kumar Bhattacharjee, 25A/1, B.P. Dey Street, P.O - Sherampore, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 4. Sri Alook Sarkar S/o, Lt. Adhir Chandra Sarkar, 18D, Jannagar Road, P.O - Mahesh, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 5. Sri Somenath Nandi S/o, Lt. Sachindra Nath Nandi, 6, Lalit Mohan Bhattacharya Street, P.O - Serampore, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 6. Sri Prabir Chakraborty S/o, Sri Mahendralal Chakraborty, 28, Shibtala Lane, P.o - Mahesh, P.S - Serampore, Dist - Hooghly, Pin - 712 202. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Anindya Halder, Advocate For the Opp. Party: Dated : 10 Jan 2018 Final Order / Judgement Date of Filing - 11.03.2016 Date of Final Hearing - 21.12.2017 The instant complaint under Section 17 (wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of an intending purchaser against the landowner (Opposite Party No.1) and the developer Company and its partners (Opposite Party Nos.2 to 6) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
In a capsulated form, Complainant's case is that on 31.07.2014 the Complainant entered into an Agreement for Sale with the Opposite Parties to purchase of a self-contained flat measuring about 1100 sq. ft. super built up area being Flat No.501 on the 4th floor at Holding No.15/B, Raja K.L. Goswami Street, Serampore, P.S - Serampore, Dist- Hooghly, within local limits of Serampore Municipality at a total consideration of Rs.25,30,000/-. The complainant has stated that he has paid the entire consideration amount and on payment of the same the possession of the flat was delivered to him on 05.08.2014. Time and again, the complainant requested the opposite parties to execute the Deed of Conveyance in favour of him but all his requests and persuasions including legal notice dated 24.08.2015 turned a deaf ear. Hence, the complainant has lodged the complaint with prayer for direction upon the opposite parties to execute Deed of Conveyance as per terms of the agreement, to pay compensation of Rs.10,00,000/- for harassment and mental agony etc. The Opposite Party No.1/Landowner by filing a written version has stated that the developer did not construct the building as per terms of the agreement for which she revoked the Power of Attorney on 27.08.2014. She has also stated that the Agreement in question was executed beyond her knowledge and as such the complaint should be dismissed.
The Opposite Party Nos. 2 to 6/ construction company and its partners did not contest.
The complainant has tendered evidence on affidavit. He has also given reply against the questionnaire set forth by the OP No.1. On behalf of complainant, several documents have been filed including Agreement for Sale dated 31.07.2014.
Undisputedly, OP No.1 was the owner in respect of a piece of land measuring about 3 cottahs 7 chittaks together with the building standing thereon in Holding No.15/B, Raja K.L. Goswami Road, P.O.+ P.S. - Serampore, Dist- Hooghly. The landowner/OP No.1 in order to raise a multi storied building over the said property entered into an agreement with the OP No.2 represented by OP Nos. 3 to 6 after demolishing the existing one. The OP No.1 has also executed one Power of Attorney in favour of the developer on 11.02.2011.
It is also not in dispute that by dint of Development Agreement and the Power of Attorney conferred upon them, the developer/builder had entered into an agreement with the complainant to sell a self-contained flat measuring about 1100 sq. ft. super built up area being Flat No.501 on the 4th floor at Holding No.15/B, Raja K.L. Goswami Street, Serampore, Dist- Hooghly, P.S.- Serampore, within local limits of Serampore Municipality at a total consideration of Rs.25,30,000/-. The money receipts issued by OP No.2/developer indicate that the complainant has paid the entire consideration amount. On receipt of the entire consideration amount, the developer/builder handed over the possession to the complainant on 05.08.2014 (vide Annexure-'D').
It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the Deed of Conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the OPs to get the Deed executed in favour of him but it remain unheeded.
The contention of the OP No.1 about revocation of Power of Attorney on 27.08.2014 will not alter the situation. The landowner has no locus standi to raise any objection in getting the flat in favour of the complainant from the allocation of the developer. The landowner may have genuine grievances against the developer but for which she may take action against the developer. 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, I have no hesitation to hold that complainant is entitled to an order of getting the Deed executed in his favour. Since, the landowner as well as developer did not take appropriate steps for execution of Sale Deed in favour of the complainant within a period of three months from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the complainant is in possession since 05.08.2014, considering the loss suffered by him, he is entitled to compensation of Rs.50,000/- each from OP No.1 and OP Nos. 2 to 6. Under compelling circumstances, the complainant had to approach this Commission and as such he is entitled to litigation cost which I quantify at Rs.10,000/- to be paid Rs.5,000/- each by OP No.1 and OP Nos. 2 to 6.
Consequently, complaint is allowed on contest against OP No.1 and exparte against OP Nos. 2 to 6.
The OP Nos. 1 to 6 are jointly and severally directed to execute the Deed of Conveyance in favour of the complainant within 30 days from date otherwise the complainant may get the Deed executed through the machinery of the Commission. The OP No. 1 and OP Nos. 2 to 6 are directed to make payment of Rs.55,000/- each aggregating Rs.1,10,000/- in favour of the complainant within 30 days from tThe date of communication of the order otherwise the amount shall carry interest @ 9% p.a. from date till its total realisation.
The Registrar of the Commission is directed to send a copy of this order to the Parties to the case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER