State Consumer Disputes Redressal Commission
Smt. Mithu Basu vs Smt. Pramila Pandey on 23 September, 2019
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1048/2016 ( Date of Filing : 27 Oct 2016 ) (Arisen out of Order Dated 24/08/2016 in Case No. Complaint Case No. CC/47/2015 of District Howrah) 1. Smt. Mithu Basu W/o Sri Bijan Basu, 30, Kashi Mondal Lane, P.O.- Belurmath, P.S.- Belur, Dist. Howrah, Pin-711 106. 2. Smt. Kaberi Ghosh W/o Sri Bhaskar Ghosh, 30, Kashi Mondal Lane, P.O.- Belurmath, P.S.- Belur, Dist. Howrah, Pin-711 106. ...........Appellant(s) Versus 1. Smt. Pramila Pandey W/o Arun Prakash Pandey, 24/1, Bijay Kumar Mukherjee Road, P.O. Salkia, P.S. Golabari, Dist. Howrah, Pin-711 106. 2. M/s. Treekal Construction Co. Rep. by its prop. Sri Netai Tarafdar, 27/40, B.K. Pal Temple Road, P.O. Belurmath, P.S. Belur, Dist. Howrah - 711 202. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mrs. Mousumi Chakraborty, Advocate For the Respondent: Mr. Goutam Debnath, Advocate Mr. Amit Pachal, Advocate Dated : 23 Sep 2019 Final Order / Judgement
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Final Order dated 24.08.2016 passed by the District Consumer Disputes Redressal Forum, Howrah (in short, Ld. District Forum) in Consumer Complaint No. 47/2015. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent No.1 Smt. Pramila Pandey under Section 12 of the Act with the following directions -
"The OPs are directed to execute and register the 'B' Schedule flat in favour of the complainant within 30 days after receipt of balance consideration amount of Rs.50,000/-. The complainant do bear the cost of registration.
The OP No.1 is also pay a sum of Rs.50,000/- out of which petitioner is entitled to Rs.20,000/- as compensation for mental pain and prolonged harassment and rest of Rs.30,000/- to be deposited in the Consumer Welfare Fund and Rs.10,000/- as litigation cost to be paid to the petitioner by OP No.1 .... ".
The Respondent No.1 herein being complainant lodged the complaint before the Ld. District Forum stating that on 09.08.2011 she entered into an agreement with the opposite parties to purchase one self-contained flat measuring about 1000 sq. ft. including 20% super built up area on 4th floor in a building lying and situated at Holding No.30, Kashi Mondal Lane, P.S.- Belur, Dist-Howrah at a total consideration of Rs.10,50,000/-. The complainant has stated that she has paid Rs.10,00,000/- as part consideration amount towards the said total consideration amount through her husband. As per terms and conditions, the OPs were under obligation to complete the said flat and to handover the same within a period of 18 months. The complainant has alleged that on 30.01.2013 she was surprised on receiving a letter from OP No.1/developer stating that due to dispute between him and the landowners/OP Nos. 2 & 3, the construction work has been stopped and requested the complainant to wait till disposal of the case or to take back the earnest money. Hence, the respondent no.1 approached the Ld. District Forum with prayer for flowing reliefs, viz. - (a) to direct the OPs to execute and register the Sale Deed of the flat as described in Schedule 'B' to the petition of complaint in favour of the complainant as per Agreement for Sale dated 09.08.2011; (b) a direction to award compensation of Rs.2,00,000/- as compensation for harassment and mental agony; (c) an order to direct the OPs to pay Rs.20,000/- as litigation cost etc. The Respondent No.2/OP No.1 (developer) by filing written version has stated that over the self-same property, several suits are pending in different Civil Courts at Howrah. It has further been stated that the landowners (OP Nos. 2 & 3) forcibly and illegally taken possession of the flat in question.
The Appellants/OP Nos. 2 & 3 (landowners) by filing a separate written version have stated that there are several suits being T.S. No.120/2012, T.S. No.67/2013, T.S. No.200/2013 and T.S. No.16780/2014 pending before the Ld. Civil Judge (Junior Division) 1st Court at Howrah and one suit being T.S. No.39/2013 pending before the Ld. Civil Judge (Junior Division) 2nd Court at Howrah and another suit being T.s. No.225/2013 pending before the Ld. Civil Judge (Junior Division) 3rd Court at Howrah between OP No.1 and them. It has also been stated that there is an order of injunction in connection with T.S. No.200/2013 in respect of the property in question and as such the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the appellants and respondent no.2 i.e. the OPs, as indicated above. To assail the said order, the OP Nos. 2 & 3 (landowners) have come up in this Commission with the instant appeal.
Mr. Gouranga Gupta Roy, Ld. Advocate for the appellants/landowners has submitted that from the Development Agreement dated 15.04.2017, Supplementary Agreement dated 07.07.2014 and the Deed of Possession dated 07.07.2014, it is clear that out of six flats on the 4th floor of the subject premises, five flats are the owners' allocation and as such the claim of respondent no.1 is baseless and without merit. He has further submitted that the respondent no.1 (developer) has no right over the owners' allocation and authority to offer any flat to any third party beyond the developer's allocation on the 4th floor.
Mr. Amit Pachal, Ld. Advocate for Respondent No.2/developer has submitted that the developer could not execute the Deed of Conveyance as the Power of Attorney executed by the landowners was revoked on 16.10.2012. However, respondent no.2 is ready to execute and register the Deed of Conveyance on receipt of balance consideration of Rs.3,50,000/-.
Ld. Advocate for the Respondent No.1/complainant has submitted that an inter-se dispute between the landowners and the developer cannot be permitted to be used as a ploy to wriggle out of obligations under the Agreement and to leave the buyer in peril.
We have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates for the appellants, respondent no.1 and respondent no. 2 respectively.
Undisputedly, Appellants being owners of 7 cottahs 2 chittaks 05 sq. ft. of land lying and situated at Holding No.30, Kashi Mondal Lane, P.S.- Belur, Dist-Howrah entered into an agreement with respondent no.2 for raising a multi-storied building over the said property in the year 2007 duly notarized on 03.05.2009. For the purpose of raising construction and to enable the respondent no.2 to enter into Agreement for Sale with the intending buyers from the developer's allocation, the appellants had executed one registered General Power of Attorney in favour of respondent no.1 on 24.07.2007.
By dint of the power conferred upon him, the Respondent No.1 M/s. Treekal Construction Company, a Proprietorship concerned represented by sole proprietor Sri Netai Tarafdar had entered into an Agreement for Sale with the respondent no.1 on 09.08.2011 to sell out one self-contained flat measuring about 1000 sq. ft. including 20% super built up area on the 4th floor of the newly constructed building at a total consideration of Rs.10,50,000/- @ Rs. 1050/- per sq. ft. The evidence on record speaks that the complainant/respondent no.1 has paid Rs. 10,00,000/- on diverse dates as part consideration amount towards the said total consideration amount leaving a balance of Rs.50,000/-. It is not in dispute that as per Clause 15 of the Agreement for Sale, the developer was under obligation to handover the subject flat within 18 months from the date of Agreement for Sale. Since the agreement for Sale was executed on 09.08.2011 the OPs were under obligation to execute the Sale Deed in favour of the respondent no.1/complainant within 09.02.2013. However, the dream and aspirations of the respondent no.1 has been shuttered after receipt of letter from the respondent no.2/developer expressing his inability to execute the Sale Deed on account of revocation of registered Power of Attorney on 16.10.2012 and pendency of several civil litigations in the Court of Howrah.
The fact remains that the Respondent No.1 being a 'consumer' within the meaning of Section 2(1)(d) of the Act hired the services on consideration and despite payment of almost entire consideration amount, the appellants and respondent no.2 on account of their inter-se dispute are not executing the Sale Deed in favour of the respondent no.1. Therefore, the appellants and the respondent no.2 are negligent and deficient in rendering services to the respondent no.1/complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.
It is well settled that after accepting the consideration amount, it is bounden duty on the part of developer to fulfil three basic obligations, viz. - (a) to deliver possession, (b) to execute Sale Deed and (c) to obtain Completion Certificate from the competent authority and until and unless these conditions are fulfilled, the developer/respondent no.2 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 respondent no.1/complainant from the allocation of the developer. The landowner may have genuine grievances against the developer but for which they may take action against the developer in 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 -
" 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 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 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 only on the ground that the landowners were not a party to the Agreement for Sale executed between the developer and the buyer and further they have revoked the Power of Attorney on 16.10.2012. In other words, at the time of entering into Agreement for Sale by respondent no.2 with respondent no.1, the respondent no.2 had the authority to enter into Agreement for Sale and that authority was given by the appellants themselves.
The question as to whether the pendency of a civil suit comes in the way of filing or continuance of a complaint before a Consumer Forum came for consideration of a Division Bench of Delhi High Court in Hindusthan Motors Ltd. - Vs. - Amardeep Singh Wirk & Ors. reported in III (2009) CPJ 417. In the aforesaid case, Respondent no.1 purchased a vehicle manufactured by the Appellant Hindusthan Motors Ltd. The said vehicle met with an accident in which the brother of Respondent no.1, who was driving the vehicle, died. Alleging manufacturing defects in the vehicle, Respondent no.1 claimed compensation from the Appellant. The wife of the deceased filed a civil suit for damages, alleging negligence on the part of the Appellant. It was contended by the Appellant that since the issues involved were common in the civil suit as well as in the complaint, continuation of both the proceedings would have deleterious effect and could result in conflicting orders. The Hon'ble Single Judge took the view that the right created under the Act could not be curtailed on the ground of pendency of other proceedings and existence of parallel or other adjudicatory Forums could take away or exclude the jurisdiction created under the Consumer Protection Act. Being aggrieved from the order passed by the Hon'ble Single Judge, the Appellant company filed an appeal before the Division Bench of the High Court. Referring to the decision of the Hon'ble Supreme Court in Satpal Mohindra - Vs. - Surindera Timber Stores reported in (1999) 5 SCC 696, the Division Bench dismissed the appeal, holding inter alia as under:
"16. In the light of the judgements discussed hereinabove, there is no room for any doubt that proceedings under the Consumer Protection Act and a Civil Court can simultaneously go on, even if the issues involved in the two proceedings are substantially similar. The remedies are independent of each other. The existence of parallel or other adjudicatory Forums cannot take away or exclude the jurisdiction created under the Consumer Protection Act".
In another case, relying upon the decision of the Hon'ble Apex Court in Guru Granth Saheb Meerghat, Vanaras - Vs. - Ved Prakash & Ors. reported in (2013) 7 SCC 622, the National Consumer Commission by order dated 07.11.2014 in CC/383/2013 and other connected complaints has laid down as follows :
"We are, therefore, of the view that the trial in criminal cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intend of the Act, summary trial of Consumer Complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails".
We must not be obsessed with the object behind the legislation of the Act. The Act being a social beneficial legislation should receive a liberal construction. In Lucknow Development Authority - Vs. - M.K. Gupta, (1994) 1 SCC 243, it has been observed as under:-
"To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, to provide for the protection of interests of consumers. Use of the word 'protection' furnishes key to the minds of makers of the Act". It means and indicates that the legislature in its wisdom left the matter for consideration to a consumer to choose the Forum for his convenience and in any case, the proceeding before a Consumer Forum cannot be stayed simply on the reason is that one civil suit is pending. The trend of the decision of the Hon'ble Supreme Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court or any other Forum as established under some enactment. The Hon'ble Apex Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated".
Therefore, after giving due consideration to the submission advanced by the Ld. Advocates appearing for the respective parties and on going through materials on record, I do not find any reason to interfere with the order impugned. In other words, the impugned order does not suffer from any infirmity and as such it should not be interfered with.
Consequently, the appeal is dismissed on contest. The appeal being harassing one, the appellants must pay costs of Rs.10,000/- to the respondent no.1/complainant of the case.
The impugned final order is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Howrah for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER