State Consumer Disputes Redressal Commission
Asish Kumar Das vs Mr. Pallab Banerjee on 13 September, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/75/2016 ( Date of Filing : 22 Feb 2016 ) 1. Asish Kumar Das S/o, Lt. Ananda Mohan Das, Street No. - 63, Quarter No. - 26/1/1, B.P.O and P.S - Chittaranjan, Dist - Burdwan, Pin - 713 331. ...........Complainant(s) Versus 1. Mr. Pallab Banerjee S/o, Lt. Nonigopal Banerjee, 29A, Mullickpara Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 2. Smt. Mira Banerjee W/o, Nanigopal Bandopadhyay, 29A, Mullickpara Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 3. Pratip Banerjee, Rep. by his mother and natural guardian Smt. Rama Banerjee S/o, Lt. Prasun Banerjee, 29A, Mullickpara Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 4. Rama Banerjee W/o, Lt. Prasun Banerjee, 29A, Mullickpara Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 201. 5. M/s. Sumit Enterprise 30/66, Thakurpukur Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 220. 6. Sri Balaram Nag S/o, Lt. Sadhanjit Nag, 30/66, Thakutpukur Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 220. 7. Sm. Piyali Nag W/o, Sri Balaram Nag, 30/66, Thakurpukur Lane, P.O - Mullickpara, P.S - Serampore, Dist - Hooghly, Pin - 712 220. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Tapas Kumar Dey, Mr. Nirupam Sarkar, Advocate For the Opp. Party: Mr. Koustav Som, Advocate Dated : 13 Sep 2018 Final Order / Judgement The instant complaint u/s.17 of Consumer Protection Act,1986 (hereinafter referred to as "the Act " ) is at the instance of an intending purchaser against the landowners ( Opposite Party Nos.1 to 4 ) and the developer/builder construction firm and its partners ( Opposite Party Nos.5 to 7 ) on the allegation of deficiency in services on the part of Opposite Parties for non-execution of Deed of Conveyance in favour of the complainants in respect of a self-contained flat measuring about 870 sq.ft. super built up area being flat no. 403 on the 4th floor in a building christened 'Malancha Villa' lying and situated at premises no. 29/A, Mallick Para Lane, P. S. - Serampore, District - Hooghly within the local limits of Ward No.5 of Serampore Municipality.
In a nutshell, Complainant's case is that on 23.11.2011 in order to purchase of the above mentioned flat the complainant had entered into an agreement for sale with the Opposite Parties to purchase the subject flat at a total consideration of Rs. 10,44,000/-. The complainant had stated that he has paid a total sum of Rs. 10,16,000/- as part consideration amount out of which Rs. 10,00,000/- was paid as part consideration amount and Rs.16,000/- was paid for the purpose of utilisation of best quality wooden door. On 20.06.2012, the OP No.6,one of the partners of OP No.5 construction firm handed over the possession of the flat to the complainant and requested to make arrangement for registration. The complainant requested the OP No.5 to take initiative to execute the sale deed but OP No.5 or its representative avoided the same on one pretext to another. Ultimately, the complainant came to know that dispute and differences cropped up between the landowner and the developer. In this regard, all the requests and persuasions including the legal notice dated 15.12.2015 went in vain. Hence, the complaint with prayer for several reliefs ,viz. (a) a direction upon OPs to execute the deed of conveyance in respect of the subject flat ; (b) an order declaring Smt. Rama Banerjee(OP No.4) as representative of her son Pratip Banerjee ( OP No.3 ) to execute and registered the deed of conveyance for herself and on behalf of OP No.3.; (c) a direction upon OP No.1 to 4 to pay a sum of Rs. 15,00,000/- only as compensation ; (d) Litigation cost etc. The OP Nos. 1,2 and 4 by filing a written version have stated that they revoked the Power of Attorney executed by them in favour of OP Nos. 5 to 7 on 06.09.2012 through a registered instrument and they are unaware about the transaction in between the complainant and OP Nos. 5 to 7.
Complainant has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by OP Nos. 1, 2 and 4. The complainant has given reply against the questionnaire set forth by OP Nos. 1, 2 and 4.
However, OP Nos. 1, 2 and 4 did not tender any evidence through affidavit.
At the time of final hearing, Brief Notes of Arguments has been filed on behalf of complainant.
On perusal of pleadings and the evidence on record, it transpires that OP Nos. 1 to 4 were the landowner in respect of piece of land measuring about 5 cottahs 12 chittaks lying and situated at premises no. 29/A, Mallick Para Lane, P. S. - Serampore, District - Hooghly within the local limits of Ward No.5 of Serampore Municipality. On 01.02.2009, the OP Nos. 1 to 4 ( Landowners) had entered into a development agreement with OP Nos. 5 to 7 ( developer ) for raising construction of a multi-storied building over the said property and to that effect the landowners have also executed a Power of Attorney authorising the developer to enter into agreement with the third parties in respect of developer's allocation.
Pursuant to the authority conferred upon them on 23.11.2011 the developer ( OP No.5) being represented by OP Nos. 6 & 7 had entered into an agreement for sale with the complainant on behalf of themselves and also on behalf of landowners ( OP Nos. 1 to 4 ) to sell a self-contained flat measuring about 870 sq.ft. super built up area being flat No. 403 on the 4th floor in a building christened 'Malancha Villa' lying and situated at premises no. 29/A, Mallick Para Lane, P. S. - Serampore, District - Hooghly within the local limits of Ward No.5 of Serampore Municipality at a total consideration of Rs. 10,44,000/-. The fact remains that the complainant has already paid Rs. 10,00,000/- as part consideration amount towards the said consideration amount. On payment of the same, the developer handover the subject flat to the complainant on 20.06.2012 and requested the complainant to make arrangement of getting the deed of conveyance registered in favour of him. However, the complainant could not get the deed registered through the developer as the Power of Attorney executed by the landowners was revoked on 06.09.2012 through a registered instrument and notice in this regard was published in the Newspaper.
It is well settled that after accepting the part consideration amount it is bounden duty on the part of developer - (a) to deliver possession, (b) to execute Sale Deed and (c) to obtain Completion Certificate from the local authority and until and unless it is done, the developer/OP cannot shirk off his responsibility. In this regard, the landowners have no locus standi to raise any objection in getting the flat in favour of the complainant from the allocation of 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 -
" We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, 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 another 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 landowners and the developer, the same can be settled in an independent proceeding. As per agreement, the landowners had given consent to the developer to transfer the property falling to its share. Therefore, the rights of a bonafide purchaser cannot be defeated on account of inter-se dispute between the landowners and the developer.
The agreement for sale between the parties was executed on 23.11.2011 and the developer revoked the Power of Attorney on 06.09.2011. It implies that at the time of entering into agreement for sale, the OP Nos. 5 to 7 had authority to enter into agreement for sale with the complainant. Therefore, mere revocation of Power of Attorney by landowner in favour of developer on 06.09.2012 will not alter the situation.
On evaluation of materials on record, it is quite apparent that the complainant being a 'consumer' as defined in Section 2(1)(d) of the Act hired the services of OPs on consideration and despite receipt of almost entire consideration amount and going delivery of possession, the OPs have failed to fulfil their part of obligations in executing the deed of conveyance in favour of the complainant and thereby found deficient in rendering services in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In my view, an order directing the OPs jointly and severally to execute the sale deed or to get the deed executed through the machinery of the Commission will meet the ends of justice subject to payment of balance consideration of Rs. 44,000/- by the complainant in favour of OP Nos. 5 to 7. Since I do not find any shortcoming or loophole on the part of developer, I do not consider it a fit case to impose compensation. However as the landowner ( OP Nos. 1, 2 and 4 ) unnecessarily stood in the way in getting the deed executed in favour of the complainant resulting to bear litigation costs by the complainant for which the OP Nos.1,2 and 4 must be saddled with costs which I quantify at Rs. 10,000/-.
In view of the discussion above, the complaint is disposed of with the following directions:-
The Opposite Parties are jointly and severally directed to execute the deed of conveyance in respect of Schedule 'B ' property of agreement for sale dated 23.11.2011 ( Notarised on 24.11.2011 ) in favour of the complainant within 60 days from date subject to payment of balance consideration of Rs. 44,000/- to be paid by the complainant in favour of Opposite Party Nos. 5 to 7 alternatively, the complainant may get the deed registered through the machinery of the Commission by depositing Rs. 44,000/-;
The Opposite Party Nos. 1, 2 and 4 shall pay a sum of Rs.10,000/- as cost of litigation in favour of the complainant within 60 days from date;
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER