State Consumer Disputes Redressal Commission
Sur Sarita Vanijya Pvt. Ltd. vs Sumukhaa Construction on 11 May, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/122/2011 ( Date of Filing : 16 Dec 2011 ) 1. Sur Sarita Vanijya Pvt. Ltd. 23A, Netaji Subhas Road, 6th Floor, Room no.31, P.S. Hare Street, Kol-1, through its Director, Mr.Rajesh Kr. Bohra, Flat no.5A, 5th floor, 177, Sarat Bose Road, P.S.Tollygunge, Kolkata-700 026. ...........Complainant(s) Versus 1. Sumukhaa Construction 10, Canning Street, P.S. Hare Street, Kolkata - 700 001. 2. Sri Rahul Baid (Partner of Sumukhaa Construction) S/o Karan Singh Baid, 10, Canning Street, P.S. - Hare Street, Kolkata - 700 001. 3. Sri Saurabh Baid (Partner of Sumukhaa Construction) S/o Anand Singh Baid, 10, Canning Street, P.S. - Hare Street, Kolkata - 700 001. 4. Sri Shivapada Joddar (Partner of Sumukhaa Construction) Executor to Estate of Late Santosh Kumar Basu, S/o Late Subodh Kr. Basu, 177, Sarat Bose Road, P.S. Tollygunge, Kolkata - 700 026. ............Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Complainant: Ms.Sayantani Das., Advocate For the Opp. Party: Mr. Prabir Sarkar., Advocate Dated : 11 May 2018 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT The application U/s 17 of the Consumer Protection Act has been filed by SUR SARITA VANIJYA PVT.LTD. through its Director Mr. Rajesh Kumar Bohra (hereinafter referred to as the Complainant) who prayed for a direction upon the Opposite parties for execution and registration of the Deed of Conveyance in respect of the property referred to in Schedule B and B1 on receipt of the balance consideration, to complete the work of installation of Intercom system, Fire license etc., to pay compensation to the tune of Rs.1 Lakh (Rupees one Lakh) for causing mental agony, pain with interest and other consequential reliefs including execution and registration of Deed of Conveyance by the Commission in the event of failure by the Opposite Parties to execute and register the Deed of Conveyance .
The case of the Complainant in a nutshell was that the property, referred to in Paragraph 2 of the Petition of Complaint as well as in the Schedule A thereof, originally belonged to one Santosh Kumar Basu, Sudhanshu Kumar Basu and Smt. Anjana Dutta and the OP no.1 Sumukhaa Construction (i.e. the Developer) entered into a Development agreement dated 10.6.2004 with the original owners with the intention to develop and construction of a multi-storied building consisting of various flats , units, garages for disposal thereto by way of sale and transfer, obtained a sanctioned plan in the name of the original owners for construction of a G+4 storied building. The original owners also executed a General Power of Attorney in favour of one Mr. Samar Purakayestha for performing various acts and deeds on behalf of the original owners, to represent them for all practical purposes in respect of the development and construction. The Opposite party no.1 and the original owners thereafter jointly developed and constructed a G+4 storied building and in terms of the aforesaid development agreement, the Opposite party no.1 and the original owners agreed to acquire allotments at 50:50 ratio. Pursuant to the terms of the said Development Agreement, the general Power of Attorney was acted upon thoroughly by the Opposite parties (i.e. the original owners). In terms of the said agreement for assignment, the original owners and the Op No.1 assigned the agreement of sale dated 15.2.2007. The Complainant hereunder entered into an agreement with the Developer and the original owners for purchasing a flat being flat No. 5A on the 5th floor of the building measuring 1300 sq.ft. for a consideration of Rs.26,40,000/- (Rupees twenty six lakhs forty thousand) and a Car parking space comprising in the ground floor of the said premises described in Schedule B and B-1 respectively together with proportionate right and interest in the undivided land beneath the building as well as the rights over the common areas , amenities and facilities relating thereto. The total price of the said flat including Car parking space was Rs.26,40,000/- (Rupees twenty six lakhs forty thousand) out of which the purchaser agreed to pay a sum of Rs.10 lakhs (Rupees Ten lakhs) on the execution of the Agreement for sale and the balance consideration of Rs.16,40,000/- (Rupees sixteen lakhs forty thousand) shall be paid on or before the execution and registration of the Deed. The Developers/Sellers agreed to hand over vacant possession of the said property on obtaining the completion certificate from Kolkata Municipal Corporation and in a habitable condition within 12 months from the date of execution of agreement for sale. The Complainant paid a sum of Rs.22 lakhs (Rupees Twenty two lakhs) against the agreed consideration of Rs.26,40,000/- (Rupees Twenty six lakhs forty thousand) and the balance of Rs.4,40,000/- (Rupees Four lakhs forty thousand) was to be paid at the time of execution and registration of the Deed of Conveyance. Pursuant to the aforesaid Agreement for sale the Complainant was allotted and handed over physical possession of the property and one open garage as described Schedule B and B1 thereof coupled with a relevant possession letter dated 1.11.2007. Subsequent to the possession of the flat and garage, the Complainant found that the said premises and the property was incomplete in all respects like intercom facilities, fire license with water connection to fire storage reservoir , electrical connections to fire pumps, drainage connection of the building etc. and it was assured by the Developer that the same would be completed prior to secure Completion certificate from the Kolkata Municipal Corporation . The Complainant claimed that the Opposite parties/Developers and Land owners were duty bound to construct the building as per the Sanctioned plan in all respects including fire protection , proper and clear main entrance for egress and ingress to and from the premises, drainage water supply, sewerage and other amenities and facilities. The Complainant further claimed that the Developers/owners were neglecting to complete the incomplete works as well as to execute the Deed of conveyance and in February 2011 the Developers informed that on the death of one original owners Santosh Kumar Basu a Probate proceeding was pending and the Probate proceeding was disposed of in favour of the Executor of the will the Deed could not be executed in favour of the Complainant. Subsequently, it was informed to the Complainant that the Probate case was granted on 14.12.2009 and since then the Complainant was taking steps by issuing letters to the Developers asking them to complete the works and to execute the Deed of Conveyance in his favour. On 26.9.2011 the Complainant sent a letter through his authorized Advocate calling upon the Opposite parties to execute the Deed of Conveyance and the Opposite parties by their reply dated 12.10.2011 agreed to execute and register such Deed in favour of the complainant .
Subsequently, the Complainant by a letter dated 31.10.2011 requested the Ops to provide the copies of relevant documents so that the draft Deed of Conveyance could not be prepared for execution and registration but the said letter was not received by the Ops/Developer and the same was returned with postal remark 'refused'. The Ops remained silent and did not take any positive step in any manner for execution and registration of the deed and inaction on the part of the Developer led the Complainant to take recourse of this Commission for filing the Petition of Complaint claiming reliefs as referred to earlier, under the Provisions of the Consumer Protection Act 1986.
The Ops no.5 and 7 filed a joint Written version to contest the Complaint Case but substantially admitted the allegations as averred in the Petition of Complaint though they denied that they were negligent in executing the Deed of conveyance in favour of the Complainant. These contesting Ops admitted that as per agreement for Development dated 10.6.2004, the Op no.1 was entrusted to construct a multi storied building containing several flats or apartments after demolishing of the existing structure at his own expense and the land owners were entitled to the property under the head 'Owners' Allocation' including four covered Car parking space coupled with 80 Sq.ft. covered area on the ground floor in favour of the op no.5 which was not specifically allotted to him. In the said Written version the contesting Ops claimed that they were not bound to perform their part as contractual obligation but the Op no.1 was liable to do so though ultimately these contesting Ops prayed for dismissal of the Complaint case against them.
The Op no.1/ Developer who appeared to contest the Complaint case filed a Written version on its behalf and contended that the Petition of Complaint was not maintainable in law. Denying the cause of action as averred in the body of the application, he contended that the Complainant filed the instant Petition of complaint suppressing all material facts but admitting the title of the other Ops in respect of the property in dispute as referred to in paragraph 10A of its written version the Op no.1 contended that the building was constructed at his instance and the Complainant entered into the agreement for sale on 15.2.2007 with the Developer and Land owners for purchasing the flat no.5A on the 5th floor of the building measuring super built up area of 1300 sq.ft. for a consideration of Rs.26,40,000/- (Rupees Twenty six lakhs forty thousand) and the Complainant paid Rs. 22 lakhs (Rupees twenty two lakhs) and Rs.4,40,000/- (Rupees four lakhs forty thousand) was due. The Op no.1 virtually admitted the case of the Complainant but denied the deficiency of service as alleged in the Petition of Complaint and ultimately prayed for rejection of the Petition of complaint.
Ld. Counsel appearing for the Complainant as well as the Op no.5 at the time of argument submitted that the Complainant entered into the agreement with the Op no.1 Developer for purchasing the flat measuring 1300 sq.ft. for a consideration of Rs.26,40,000/- (Rupees Twenty six lakhs forty thousand) and an Open Car parking space in the ground floor of the said premises described in Schedule B and B1 respectively together with proportionate right and interest in the undivided land beneath the building comprised in the said premises as well as rights over the common areas , amenities and facilities relating thereto.
Ld. Counsel for the contestant Op no.5 in course of hearing admitted the factual position of the allegation brought by the Complainant in his Petition of Complaint and contended that his client did not have any objection to execute and register the Deed of Conveyance in favour of the Complainant as a confirming party provided the Developer execute and register the Deed of Conveyance in his favour. He also submitted that his client was only interested in getting 80 sq.ft. covered area on the ground floor and the balance consideration. He also supported the claim of this Complainant with regard to making over possession and the Car parking space as claimed by him ( the Complainant) in the instant Complaint case.
The Evidence on affidavit filed on behalf of the parties appearing before us does not indicate any difference so far as the factual aspect of the matter is concerned. The Op no.5/Land Owner claimed 80 sq.ft. covered area in the ground floor from the Developers' Allocation . But this dispute is remaining between the Developer and the Land owners and the Complainant being a Third party to the Transaction cannot be asked to suffer and his claim for registration cannot be withheld due to such internal dispute between them.
Taking into consideration the above facts and circumstances of the case in the light of the Agreement between the parties, involved herein, we firmly conclude that the Complainant who is a bona fide purchaser of the flat and the Car parking space, as referred to Schedule B and B-1 of the Petition of Complaint, cannot be denied to get his right perfected by way of execution and registration of the Deed of Conveyance in his favour coupled with the supply of the Completion certificate on completion of the building as per Schedule 'C' of the petition so that his name is mutated before the Competent Authority. The agreement between the parties as admitted by the ld. Counsel for the parties led us to come to the conclusion that the Complainant paid a sum of Rs. 22 lakhs (Rupees twenty two lakhs) out of total agreed sum of Rs.26,40,000/- (Rupees twenty six lakhs forty thousand) and he would be entitled to the benefits claimed by him in the Petition of Complaint provided he pays the balance consideration at the time of execution and registration of the Deed.
In the back- ground we allow the Petition of Complaint U/s 17 of the Consumer Protection Act against the Ops no.1, 5 and 7 and exparte against the rest and direct all the Ops (Developer and land owners) to execute and register the Deed of conveyance on acceptance of a sum of Rs.4,40,000/- (Rupees four lakhs forty thousand) within 60 (sixty) days from the date of this order and in default the Complainant shall be at liberty to get his deed executed and registered through this Commission on deposit of such balance consideration. The OP no.1 /Developer is further directed to pay compensation to the Complainant to the tune of Rs.20,000/- (Rupees twenty thousand) and to pay litigation cost of a sum of Rs.10,000/- (Rupees ten thousand) to be paid to the Complainant within the said stipulated period (60 days). The cost of Execution and Registration of the Deed shall be borne by the Complainant himself. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER