State Consumer Disputes Redressal Commission
Shree Kishan Lal Saraf vs Smt. Santi Devi Agarwala & Others on 31 March, 2009
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : 06/O/2001 DATE OF FILING : 12.01.2001 DATE OF FINAL ORDER: 31.03.2009 COMPLAINANTS 1. Shree Kishan Lal Saraf S/o. Late Ramjiwan Saraf 2. Smt. Nirmala Devi Saraf Wife of Shree Kishan Lal Saraf Both residing at 56, Netaji Subhas Road Kolkata-700 001. OPPOSITE PARTIES 1. Smt. Santi Devi Agarwala 2. Smt. Gita Devi Dabriwal 3. Sri Jai Prakash Dabriwal 4. Sri Dwarka Prasad Dabriwal Father & natural guardian of S.K.Dabriwal 5. Sri Sajjan Kumar Dabriwal 6. Sri Om Prakash Agarwala 7. (a) Kedar Nath Agarwal (b) Om Prakash Agarwal (c) Sanwarmal Agarwal (d) Ramesh Chandra Agarwal (e) Govind Agarwal (f) Arjan Agarwal (g) Subhash Agarwal All of 74, Battala Road, Kolkata-700 007. 8. Sri Suresh Kumar Agarwal 9. Sri Naresh Kumar Agarwal 10. Sri Pawan Kumar Agarwal All of 38, Vivekananda Road, Kolkata-700 004. BEFORE : HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT MEMBER : MR. A.K.RAY FOR THE PETITIONERS : Mr. P.K.Basu, Ld. Advocate FOR THE O.P.S.: Mr. S.Nayak, Ld. Advocate (Op Nos. 8&10) : O R D E R :
MR. A.K.RAY, HONBLE MEMBER The petitioners approached the Ops in January, 1990 for purchasing a flat. Accordingly, on 18.1.90 two agreements were executed by and between the petitioners and the Ops. Out of the same one was for absolute sale of proportionate undivided share of land in connection with absolute sale of north side first floor unit of the building at Premises No. 2A, Alipore Avenue, Kolkata/700 027 having a super built-up area of 2124 sq.ft. more or less together with car parking space and a servants quarter and the second one was for construction of the said flat. The total consideration money for the flat amounting to Rs. 5,90,000/- together with other incidental expenses like deposit of money with Calcutta Electric Supply Corporation for separate electric meter was paid to the Ops, who handed over possession of the said flat to the petitioners. But in spite of several requests they failed and neglected to execute and register the Deed of Conveyance in respect thereof. Ultimately the instant case has been initiated by the petitioners against the Ops praying for a direction upon the Ops to execute and register the Deed of Conveyance in respect of the flat together with car-parking space/garage and a servants quarter at the ground floor of the premises, etc. Compensation of Rs. 3,10,000/- has been claimed for causing harassment to the complainants by the Ops.
Admitedly, the complainant entered into two agreements with the Ops
- Smt. Santi Devi Agarwala, Smt. Gita Devi Dabriwal, Sri Jai Prakash Dabriwal, Sri Dwarka Prasad Dabriwal, Sri Sajjan Kumar Dabriwal, Smt. Laxmi Devi Agarwal, Sri Suresh Kumar Agarwal, Sri Naresh Kumar Agarwal, Sri Pawan Kumar Agarwal.
During the pendency of the case Laxmi Devi Agarwal died leaving Kedar Nath Agarwal, Om Prakash Agarwal, Sanwarlal Agarwal, Ramesh Chandra Agarwal, Govind Agarwal, Arjan Agarwal, Subhash Agarwal as her heirs. In accordance with the terms of the aforesaid agreement the entire consideration money has been paid by the complainants to the Ops who also gave possession of the flat in question to the complainants herein. Only the possession of the car-parking space/garage and servants quarter has not been provided by the Op to the complainants and the Ops till date have not executed and registered the Deed of Conveyance in respect of the flat in question including the car-parking space/garage and servants quarter in favour of the complainants.
Out of all the Ops only the OP Nos. 8 & 10 contested the case although notices were duly served upon all the Ops. In their written version the Ops challenged the maintainability of the instant case on three grounds namely
i) The complaint was barred by Law of Limitation.
ii) In the agreement there was a provision for getting the dispute between the parties resolved through arbitration process.
iii) The complaint as made is not maintainable within the scope of Consumer Protection Act.
This application was heard and dismissed by this Commission through Order dt. 11.8.08 and against the same no revision having been preferred and the evidences of both sides having been completed the case was finally heard on 19.12.2008. The aforesaid order dt. 11.8.08 passed by this Commission be made a part of this judgement.
The Ld. Advocate appearing for the contesting OP Nos. 8 & 10 averred that as the complainants have been provided with the accommodation after construction of the building, they are not entitled for registration of the flat along with the car-parking space/garage and the servants quarter.
The Ld. Advocate for the complainants mentioned a decision reported in AIR 1973 Calcutta 397 wherein it was held, A document must be read as a whole. Piecemeal reading either of recital or operative portion or covenants cannot bring about fair and proper construction. In Page-7 of the agreement in Paragraph-(c) it has been stated categorically that For the purpose of beneficial and proper enjoyment of such units/flats/apartments/constructed spaces the Developers shall transfer or cause to be transferred the impartible and undivided proportionate share in the land comprised in the said premises attributable to the said Unit/Flat for which the purchasers shall make payment of an agreed amount as and by way of consideration to the Developers ..
In Page-13 under Clause 1.17 it is stated OWNERSHIP shall mean :
(a) The unit to be so constructed or erected by the Developers in terms of this Agreement shall always belong and/or vest in the Purchaser subject however to the Purchaser making payment of all the amounts payable by the Purchaser to the Developers in terms of this Agreement and Deed of Conveyance or Transfer will be registered by the Developer in terms of this Agreement in favour of the Purchaser and each of the Purchaser being entitled to an equal share in to or upon the said Unit and the said Undivided Share.
In Clause 1.18 in the same page of the Agreement, Purchaser shall mean the said Kishan Lal Saraf and Smt. Nirmala Devi Saraf and their respective heirs, legal representatives, executors, administrators and assigns.
In Page-27 under Clause 9.12 of the said agreement it is stated, Deed of Conveyance or Transfer shall be in such form and shall contain such exceptions, conditions and restrictions as shall be drafted and prepared by Mr. R.L.Gaggar, Solicitor & Advocate and the Purchaser hereby agrees to accept the same without raising any objection thereto.
In Page-34 of the agreement in the Second Schedule the proportionate share of the purchasers have been defined.
Admittedly, the Ops are the owners and the Developers. After receiving the entire consideration money from the petitioners, they cannot avoid their responsibility towards execution and registration of the Deed of Conveyance in respect of the properties mentioned in the Second Schedule of the Agreement at Page-34. All the Ops should execute and register the Deed of Conveyance in favour of the Complainants.
The OP Nos. 8 & 10 in their written submission filed before us on 28.4.08 submitted amongst others that after taking over the possession of the unit which was constructed by the Ops with full satisfaction, the effect of the agreement for construction and/or development of the unit came to an end on 18.1.90 and in the complaint there was no allegation against construction, rather after being satisfied about the construction they took possession of the flat. So, the question of deficiency should not arise at this stage as the Ops performed the duties and discharged their obligations in terms of the agreement. The contesting Ops further stated that in the agreement in connection with sale of the proportionate share in the land at Premises No. 2A, Alipore Avenue, it is clearly mentioned about commencement of the agreement under the head ARTICLE III This Agreement shall be deemed to have commenced on and from 1st January, 1986. From this clause it is clear that the agreement was given effect from 1.1.86, i.e. prior to commencement of the Consumer Protection Act, 1986. This point has already been answered by us in the penultimate paragraph of our order dt. 11.8.08.
In the light of what has been stated above it is crystal clear that the Ops including the contesting OP nos. 8 & 10 did injustice to the complainants with regard to execution and registration of the Deed of Conveyance in their favour.
Practically, there is no point in favour of the Ops to accept their contention that after delivery of the peaceful possession of the subject flat their duties towards the complainants came to an end.
Obviously it was the failure on their part to refrain from execution and registration of the Deed of Conveyance of the subject property mentioned in the SECOND SCHEDULE of the agreement in question.
Failure to execution and registration of the Deed of Conveyance amounts to deficiency in service. Accordingly, the complaint succeeds.
Hence, it is ordered that the complaint be allowed on contest in respect of OP Nos. 8 & 10 and ex parte against the other Ops. We grant compensation amounting to Rs. 50,000/- (Rupees fifty thousand only) in favour of the complainants along with cost of Rs. 5,000/- (Rupees five thousand only) to be paid by all the Ops within 45 (forty-five) days from the date of communication of this order. The Ops are also directed to execute and register the Deed of Conveyance in respect of the subject flat in favour of the complainants together with car-parking space and servants quarter in the ground floor of the premises in terms of the agreement in question. They are also to handover the Occupancy Certificate of the said building to be granted by Kolkata Municipal Corporation within the aforesaid period, failing which the complainants will be at liberty to put this order into execution. For non-compliance of this order by the Ops, interest @ 10% (ten per cent) per annum on the aforesaid total decretal amount shall accrue for the period of default.
MEMBER PRESIDENT