State Consumer Disputes Redressal Commission
Smt. Bani Dutta vs Sriraju Singh on 2 November, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1223/2016 ( Date of Filing : 16 Dec 2016 ) (Arisen out of Order Dated 03/10/2016 in Case No. Complaint Case No. CC/67/2016 of District Kolkata-III(South)) 1. Smt. Bani Dutta W/o Sri Asim Dutta, 2/30, Sanghati Colony, P.O. Netaji nagar, P.S. Jadavpur, Kolkata-700 092. ...........Appellant(s) Versus 1. SriRaju Singh Director, Mallington Project Pvt. Ltd., 2B, Dinesh Das Sarani, New Alipur, Kolkata -700 053. 2. Sri Indrajit Chatterjee S/o Lt. Sudhanshu Mohan Chatterjee, 8, Sodepur Road, P.O. & P.S. - Haridevpur, Kolkata- 700 082. 3. Sri Monojit Chatterjee S/o Lt. Sudhanshu Mohan Chatterjee, Writers Para, Manasa Mandir, P.O. & P.S.- Haridevpur, Kolkata- 700 082. 4. Sri Premjit Chatterjee S/o Lt. Sudhanshu Mohan Chatterjee, 186/N, Ustad Amir Khan Sarani, P.O. & P.S.- Haridevpur, Kolkata- 700 082. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Ms. Deepsikha Tapadar, Advocate For the Respondent: Mr. Sovanlal Bera, Advocate Mr. Rabindranath Pal, Advocate Mr. Rabindranath Pal, Advocate Mr. Rabindranath Pal, Advocate Dated : 02 Nov 2018 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT This is an appeal under section 15 of the Consumer Protection Act filed against the judgment and order dated 03-10-2016 passed by Ld. DCDRF, Kolkata Unit-III in CC/67/2016 where Ld. DCDRF concerned while disposing of the said complaint case allowed the same against the OP no. 1 in terms of the petition of complaint and dismissed the same against the other OPs.
Being aggrieved by such judgment and finding of Ld. Trial Forum, the present appeal has been preferred by the complainant.
The case of the complainant/appellant (hereinafter referred to as the complainant) was that she entered into an agreement with the OP no. 1/promoter and other OPs no. 2 to 4/land owners to purchase a flat measuring 750 sq. ft. super built up area at the 3rd floor, south eastern side of the building consisting of two bed rooms, one drawing cum dining place, one kitchen, two toilets and one varanda together with proportionate share in the land being properly described in the schedule of the petition of complaint for a consideration of Rs. 15,00,000/- (Rupees fifteen lakh) and already paid a sum of Rs. 13,00,000/- (Rupees thirteen lakh) as per agreement dated 02-09-2011 but the OPs did not hand over the said flat to the complainant nor they executed any sale deed in favour of the complainant, did not complete the work of construction as per agreement and intentionally violated the terms and conditions of such agreement. The complainant requested the OPs on several occasions to complete the construction and to hand over the flat but the request of the complainant was not properly attended by the OPs and under the compelling circumstances, the complainant sent a letter to the OPs through her authorized Advocate to comply the terms of agreement but no result yielded. The OPs neither executed the deed of conveyance in favour of the complainant nor they completed of construction of the building nor possession of the case was handed over in her favour and that being the 'deficiency in service' as well as 'unfair trade practice' compelled the complainant to take recourse of the DCDRF concerned claiming reliefs including completion of construction and to execute and register the deed of conveyance in favour of the complainant, to pay compensation, litigation cost and for other consequential reliefs.
The OP no. 1 filed a written version to contest the complaint case and denied the cause of action against him. Denying all the material allegations as averred in the body of the petition of complaint, the OP no. 1 stated that the complainant herself did not fulfill of her obligations of the Agreement for Sale and cancelled the agreement, asked for refund of earnest money and accordingly the OP no. 1 sold out the flat to one Bhola Singh on 26-08-2013, as the complainant insisted for refund of money. In the said written version the OP no. 1 admitted that the complainant paid a sum of Rs. 13,00,000/- (Rupees thirteen lakh) but not in accordance with the terms of agreement and further reason it was not possible for him to complete the construction and hand over possession of the flat as per agreement. The OP no. 1 further stated that as the complainant was eager to get the earnest money refunded the OP no. 1 asked her to pay the same after selling the flat and ultimately he prayed for dismissal of the complaint case.
The other OPs did not file written version to contest the complaint case.
Here the factual aspects in the matter including the Agreement for Sale in between the complainant and the OP no. 1 in respect of the flat referred to in the schedule of the petition of complaint measuring about 750 sq. ft. super built up area, payment of earnest money of Rs. 13,00,000/- (Rupees thirteen lakh) out of Rs. 15,00,000/- (Rupees fifteen lakh), the terms of agreement with regard to construction of the flat and to hand over possession within the stipulated time etc. are not at all disputed. It is brought to our notice that the complaint case being CC/67/2017 was disposed of against the OP no. 1 on compromise where it was settled between the parties that the OP No. 1 agreed to complete the building in question and to provide all services as per agreement including setting up of lift after disposal of litigations pending between the OPs no. 1 and OPs no. 2 to 4 to which the complainant agreed to forego her right to claim compensation and cost against the OP no. 1 for delay in handing over the possession of the flat as well as delay in completing the building in which the said flat situates. The terms of compromise also reveals that the OP no. 1 shall execute and register the deed of conveyance in favour of the complainant on acceptance of the balance consideration. But the fact remains the General Power of Attorney executed by the land owners i.e. the OPs no. 2 to 4 in favour of the OP no. 1 stood terminated in the mean time causing a hurdle in the matter of execution and registration of the valid deed of conveyance in favour of the complainant. It is argued before us that the decree passed on compromise cannot be appealable though it can be challenged before the court passing the decree, if fraud is practiced on either of the parties. But in the instant case the complainant who paid the major part of the consideration would be entitled to get the deed registered in her favour on payment of balance consideration and her claim cannot be denied on the ground that an interse dispute between the owners and the builder is yet to be resolved. In this context we may place reliance on a decision of the Hon'ble National Commission in Smt. V. Kamala and others Vs. K. Rajiv and others, reported in 2014 (3) CPR 91 (NC) where the Hon'ble National Commission held that "an interse dispute between the owners and the builder, if any, cannot be permitted to be utilized as a ploy to wriggle out of obligations under the agreements and leave the buyer in the lurch". Since the complainant is eager to get possession of the flat and to get the deed of conveyance executed in her favour on payment of consideration and even after relinquishing her claim of compensation and other consequential reliefs cannot be denied on the plea that the interse dispute between the Developer and the land owners are in operation and the appeal could not be maintainable against the decree on compromise. Since the Developer who admitted that he would execute and register the deed of conveyance in favour of the complainant/appellant on the strength of a compromise in CC/67/2016, the other OPs/land owners are duty bound to co-operate in the matter of such execution and registration of the deed in favour of the complainant. Accordingly we allow the appeal in part, modify the judgment and order dated 03-10-2016 passed by Ld. DCDRF concerned in CC/67/2016, direct all the OPs to execute the deed of conveyance in favour of the complainant who would bear the cost of execution and registration of the deed in her favour subject to payment of balance consideration to the tune of Rs. 2,00,000/- (Rupees two lakh) to the OP no. 1. The entire process shall be completed within a period of 60 days from the date of the order and in default of execution and registration of the said deed of conveyance, the complainant is at liberty to get the deed of conveyance executed and registered in her favour by the machinery of the DCDRF on deposit of balance consideration of Rs. 2,00,000/- (Rupees two lakh) since the complainant/appellant relinquished other benefits. Parties do bear their respective costs of Appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER