State Consumer Disputes Redressal Commission
Sri Bimal Biswas vs Sri Biplab Biswas on 10 August, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/156/2015 (Arisen out of Order Dated 10/10/2012 in Case No. CC/254/2011 of District South 24 Parganas) 1. Sri Bimal Biswas Director, M/s Troyee Housing Pvt. Ltd., 19, Green Park, Mukundapur, P.S. Purba jadavpur, Kolkata-700 099. 2. Sri Bidhan Chandra Sarkar Director, M/s Troyee Housing Pvt. Ltd., 19, Green Park, Mukundapur, P.S. Purba jadavpur, Kolkata-700 099. ...........Appellant(s) Versus 1. Sri Biplab Biswas S/o Late Phani Bhusan Biswas, Meena View, Block-A, Flat no.A4, 192, Dasadrone, P.O. Rajarhat, Gopalpur, P.S. Baguihati, Kolkata -700 135. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Z. Islam.Mr. J. Islam., Advocate For the Respondent: Mr. S.N. Dutta., Advocate Dated : 10 Aug 2017 Final Order / Judgement
Date of Filing - 04.02.2015 Date of Hearing - 03.08.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Parties/developers to impeach the Judgement/Final Order dated 10.10.2012 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint no. 254/2011. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent under Section 12 of the Act with the direction upon the Appellants to handover the subject flat and to execute and register the Deed of Conveyance along with Completion Certificate within one month from date, to pay compensation of Rs.60,000/- and litigation cost of Rs.5,000/- within one month, failing which the amount shall carry interest @ 10% p.a. from the date till its realisation.
The Respondent herein being Complainant lodged the complaint asserting that on 02.06.2005 he entered into an Agreement for Sale with the opposite parties to purchase of a flat measuring about 1116 sq. ft. including 20% of super built up area with all common facilities at Mouza - Atghara, comprising R.S. Plot Nos. 61, 62 & 63, appertaining to R.S. Khatian No.40 under P.S.- Sonarpur, Dist- South 24 Parganas at a total consideration of Rs.6,69,000/- @ Rs.660/- per sq. ft. The complainant paid Rs.2001/- as booking amount and at the time of Agreement for Sale, he has paid another sum of Rs.50,000/-. As per terms of the agreement, the complainant shall take the delivery of the flat within 90 days from the date of notice of completion but the opposite parties never informed the complainant as to progress of the investigation. The complainant alleged that all his requests and persuasions in this regard went in vain. Hence, the respondent approached the Ld. District Forum with prayer for several reliefs, viz. - (a) direction upon the OPs to deliver possession of the flat in question; (b) to direct the OP to make arrangement for registration of the same; (c) a compensation of Rs.1,00,000/- for harassment and mental agony and (d) cost of the proceeding etc. Despite receipt of notice, the opposite parties did not contest.
After perusal of the record and the documents filed by the complainant, the Ld. District Forum by the impugned order allowed the complaint with certain directions upon the opposite parties. Challenging the said order, the opposite parties have come up in this Commission with the present appeal on 04.02.2015 where there was a total delay of 815 days in filing the appeal. This Commission by Order No.02 dated 16.02.2015 rejected the application for condonation of delay and consequently, the appeal was dismissed being time barred. Challenging the said order, the appellants preferred a Revisional Application under Article 227 of the Constitution of India in the Hon'ble High Court at Calcutta and the Hon'ble High Court by order dated 08.09.2015 in C.O. No.2195/2015 set aside the order passed on 16.02.2015 and directed this Commission to consider the application for condonation of delay afresh. However, by Order No.17 dated 20.11.2015 the application for condonation of delay once again rejected resulting dismissal of the appeal being time barred.
Thereafter, the appellants once again approached the Hon'ble High Court but the Revisional Application was turned down as there was alternative efficacious remedy available to the appellants. Subsequently, the appellants preferred revision petition in the Hon'ble National Consumer Commission being RP Nos.2292/2016 and 2223/2016 and by an order dated 18.11.2016, the Hon'ble National Commission allowed the revision petitions with certain conditions and after setting aside, the order passed in this appeal as well as in FA/366/2016 (an appeal against the execution proceeding) pleased to direct this Commission to decide the dispose of the appeals within the period of six months. Hence, the instant appeal as well as A/366/2016 are taken up for consideration.
Mr. Rauf Rahim, Ld. Advocate for the appellants on the threshold of his argument has submitted that the Ld. District Forum should have dismissed the complaint simply on the ground that it was barred by limitation. Expanding his argument, he has submitted that the Agreement for Sale was executed on 02.06.2005 and excepting payment of Rs. 50,000/- on that date and previously Rs.2001/- as booking, did not make any payment as per payment schedule and only on 02.12.2011 after a long delay of more than six years, the complaint was lodged for which it should have been dismissed under Section 24A of the Act. In support of his submission, Ld. Advocate for the appellants has placed reliance to a decision of Hon'ble Supreme Court reported in (2009) 7 SCC 768 (Kandimalla Raghavaiah & Co. - Vs. - National Insurance Company & Anr.). Mr. S.N. Dutta, Ld. Advocate for the respondent opposing the same has contended that after accepting the part consideration amount, it is statutory obligation on the part of the developer to execute the Sale Deed and unless and until the Sale Deed executed, the cause of action is a continuous one.
The referred decision relates to a case of Insurance and in such a case the date of cause of action would be reckoned from the date when fire broke out. In the case of consumer dispute of housing construction, after acceptance of part consideration amount, it is statutory obligation on the part of the developer to deliver possession and to execute Sale Deed after receipt of balance consideration amount and unless and until Sale Deed is executed, cause of action is a continuous one.
Ld. Advocate for the appellants, thereafter, has submitted that the respondent has failed to make payment as per payment schedule. Drawing my attention to clause 13 he has submitted that the developer had no obligation to give any notice asking the intending purchaser to pay the amount and when the complainants did not pay any amount after execution of Agreement for Sale, the Ld. District Forum should have considered the respondent/complainant as a defaulter and on that ground, the complaint ought to have been dismissed. To fortify his contention, the Ld. Advocate for the appellants placed reliance to several decisions - (1) 2015 SCC online NCDRC 1 (DLF Southern Towns Pvt. Ltd. - Vs. - Dipu C Seminlal) (paragraph-15); (2) a decision of Hon'ble National Commission in CC/505/2014 (Bijay Madan - Vs. - Unitech Ltd.) (Paragraph-5); (3) (2000) 4 SCC 120 (Prashant Kumar Sahi - Vs. - Ghajiabad Development Authority) (Paragaph-4); (4) (1969) 3 SCC 522 (Shree Hanuman Cotton Mills & Ors. - Vs. - Tata Aircraft Ltd.).
Per contra, Ld. Advocate for the respondent has contended that as per clause - 3 of the Agreement, the developer was under obligation to inform the complainant as to progress of construction work, agreed to be purchased by the complainant. He has also submitted that it is quite difficult for an intending purchaser to know the progress of work unless the same is informed by the developer and when the developer did not inform anything with regard to progress of construction work, the developer was quite deficient in rendering services and therefore, the Ld. District Forum was quite justified in passing the order impugned.
I have considered the rival contention of the parties and scrutinised the materials on record.
Undisputedly, the appellants are the developers of M/s. Troyee Housing Pvt. Ltd. and by virtue of an agreement dated 20.02.2004 in between the appellants and the co-sharers of the original landowner. The appellants were entrusted to construct a multi-storied building. On 02.06.2005, the appellants had entered into an Agreement for Sale with the respondent to sell a flat measuring about 1116 sq. ft. including 20% of super built up area with all common facilities comprising R.S. Plot Nos. 61, 62 & 63, appertaining to R.S. Khatian No.40 at Mouza - Atghara under P.S.- Sonarpur, Dist- South 24 Parganas at a total consideration of Rs.6,69,000/- @ Rs.660/- per sq. ft. Admittedly, the complainant paid Rs.2001/- as booking amount and at the time of Agreement for Sale, another amount of Rs.50,000/- aggregating Rs.52,001/-. As per Clause 9 of the Agreement, the developer was under obligation to handover the subject flat within 90 days from the date of notice of completion.
Clause 13 of the Agreement provides - "The purchaser hereby agreed to pay all the amounts payable under the terms of this agreement as and when it would become due and payable (time in this respect being the essence of the contract). Further the developer is not bound to give any notice requiring such payment and the failure thereof shall not be placed as excuse for non-payment of any amount or amounts on the respective due dates". On the other hand, Clause 3 of the Agreement runs as follows - "That the balance of the consideration money shall be paid by the purchaser to the developer as per schedule of payment hereunder written, on receiving intimation from the developer in respect of progress of construction work of the flat, agreed to be purchased by the purchaser".
The payment schedule in the agreement speaks - (a) before first floor casting 30% of the total amount; (b) before buyers floor casting 30% of the total amount; (c) before brick wall 10% of the total amount and (d) before registration 10% of the total amount.
Ld. Advocate for the appellants has forcefully submitted that as per terms of the Agreement for Sale, the respondent was under obligation to make payment of 20% of the total consideration amount at the time of Agreement for Sale but the respondent has paid only a sum of Rs.50,000/- only i.e. 10% of the total consideration money and when the respondent defaulted in payment, the appellants/developer is entitled to forfeit the earnest money. Ld. Advocate for the respondent, on the other hand has submitted that when the appellants accepted 10% i.e. Rs.50,000/- at the time of execution of Agreement for Sale and after knowing the contents of the agreement put their signatures, they cannot pick up any quarrel on that point.
It is trite law that the parties are bound by the agreement. Both the parties after evaluating the contents of the agreement with full knowledge put their signatures on the same and therefore, the contents of the agreement towers above the rest.
On a conjoint reading of clauses 3 & 13 of the Agreement, I find there is apparent conflict in between the two. Clause 3 authorises the respondent to know from the appellants about progress of construction and he is under obligation to pay the balance amount on receipt of information from the developer. On the other hand, clause 13 authorises the developer not to give any notice asking the respondent to pay the amount. The fact remains that the payment schedule does not show any specific date on which the buyer will make payment to the developer. In such a situation, unless the developer informs the buyer as to progress of investigation and asking him to make payment, the buyer will find it difficult to make payment. There is no letter or correspondences on the part of the developer to the respondent informing any progress in the construction and also the intention to handover the subject flat.
It is seen that for non-compliance with the order of Ld. District Forum, an execution case was initiated by the respondent and by an Order No.53 dated 18.04.2016 in the said execution case being EA/23/2013, the developer Sri Bimal Biswas/Appellant No.1 was held guilty and he was sentenced to suffer S.I. for two and half years and to pay a fine of Rs.10,000/-. The developer could not comply with the order of the Ld. District Forum simply for the reason that the appellants have already transferred the subject flat to some other person. At the time of hearing, Mr. S.N. Dutta, Ld. Advocate for the respondent has ultimately submitted that the developer/appellants transferred the subject flat to one Sri Sandip Sinha on 29.01.2010.
The facts and circumstances clearly indicate that the impugned order cannot be executed simply for the reason that the appellants have already transferred the flat in question to a third party and a Consumer Forum has no authority to cancel a Deed of Sale. Therefore, an alternative relief for a direction to refund the amount of Rs.52,001/- paid by the respondent/complainant to the appellants/opposite parties along with interest in the facts and circumstances would sub-serve the object of justice.
After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and also the decisions referred on behalf of the appellants, I am of the view that the impugned order should be modified to the extent that the appellants/opposite parties shall refund Rs.52,001/- along with an interest thereon @ 12% p.a. from the date of Agreement for Sale i.e. from 02.06.2005 till its realisation. However, the order of imposition of compensation of Rs.60,000/- and litigation cost of Rs.5,000/- should not be interfered with.
Accordingly, the impugned order is modified only to the extent that instead of execution and registration of Deed of Conveyance, the appellants/opposite parties shall refund Rs.52,001/- along with interest thereon @ 12% p.a. from 02.06.2005 till its realisation. The order of compensation and litigation cost imposed by the Ld. District Forum are maintained. The appellants/OPs are directed to make payment of amount of compensation and litigation cost aggregating Rs.65,000/- within 30 days from date otherwise, the said amount shall carry interest @ 9% p.a. from date till its realisation.
With the above observations and directions, the instant appeal stands disposed of.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER