State Consumer Disputes Redressal Commission
Smt. Indrani Bhattacharjee vs M/S Banerjee Associates on 18 November, 2014
DRAFT STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, MIRZA GHALIB STREET KOLKATA 700 087 S.C. CASE NO.CC/33/2012 DATE OF FILING:07/03/12 DATE OF FINAL ORDER:18/11/14 COMPLAINANT : Smt. Indrani Bhattacharjee W/o-Jishnu Bhattacharjee Presently residing at 86, Rajani Mukherjee Road P.O. Sahapur, Kolkata-700 038 OPPOSITE PARTIES : 1) M/s Banerjee Associates Proprietor-Sri Swapan Banerjee Residing at 13/4, Dr. P.K. Banerjee Road Howrah-711 101 2) Sri Sudarshan Dutta S/o-Late Chittaranjan Dutta 3) Smt. Anima Dutta W/o-Late Chittaranjan Dutta 4) Sri Subrata Dutta S/o-Late Chittaranjan Dutta 5) Sri Sukhomoy Dutta S/o-Late Chittaranjan Dutta 6) Kumari Sikha Dutta D/o-Late Chittaranjan Dutta 7) Kumari Sukhla Dutta D/o-Late Chittaranjan Dutta Nos.2 to 7 are residing at 13/4, Sahapur Colony (East) P.O. & P.S. New Alipore Kolkata-700 053 BEFORE : HONBLE JUSTICE : Mr. Kalidas Mukherjee
President HONBLE MEMBER : Mrs. Mridula Roy HONBLE MEMBER : Mr. Tarapada Gangopadhyay FOR THE COMPLAINANT : Mr. Barun Prasad Ld. Advocate FOR THE OPPOSITE PARTIES : Mr. Bholanath Sarkar Ld. Advocate Mr. Debesh Halder Learned Advocate Ms. Mousumi Chakraborty Learned Advocate : O R D E R :
HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT The Complainant has filed this case alleging that she wanted to purchase one residential flat and approached the OP No.1.
The premises is situated at 13/4, Sahapur Colony (East) part premises no.20A, Diamond Harbour Road, Kolkata-700 053, P.S. New Alipore. The OP No.1 informed the Complainant that initially one Smt. Mohua Dutta booked the flat in question, but due to her family inconvenience decided to cancel the agreement and one memo of understanding dated 05/01/09 was executed between the parties. OP No.1 agreed to refund her paid amount on instalments. The OP No.1 was given power of attorney by the Land Owners, that is, OP Nos.2 to 7. An agreement for sale dated 28/01/09 was executed between the parties where said Mohua Dutta signed as witness. The said agreement for sale was entered into by the Complainant for purchase of one self-contained flat measuring about 1,000 sq. ft. super built up area on the 4th floor South East corner being flat no.4B for a total consideration of Rs.15 lakh. Prior to the execution of the sale agreement dated 28/01/09 the Complainant paid Rs.25,000/- as booking amount and also paid Rs.75,000/- on the date of execution of agreement for sale. On 02/02/09 the Complainant paid Rs.4 lakh. The Complainant again paid an amount of Rs.2,40,000/- on 07/03/09.
Accordingly, the Complainant paid total amount of Rs.7,40,000/-. The OP demanded an amount of Rs.3,40,000/- as 3rd instalment on or before 31/03/09. But without complying with the commitment made in the agreement the OP demanded the instalment illegally which was beyond the terms of agreement. The Complainant sent notice to the OP through Learned Advocate.
For the said reasons, the complaint has been filed praying for a direction upon the OPs to complete the construction of the building as well as the flat in question, to deliver possession of the flat and also to execute and register the deed of conveyance in favour of the Complainant. The Complainant has also prayed for a direction upon the OPs in case of failure to complete the construction and deliver possession, to refund the amount of Rs.7,40,000/- along with interest @ 12% p.a., compensation of Rs.20,00,000/- and litigation cost of Rs.30,000/-.
The OP Nos.2 to 7 have filed W.V. contending, inter alia, that the OP Nos.2 to 7 are the joint Land Owners and they jointly entered into an agreement for development of their premises with the OP No.1, that is, the Developer on 03/09/08. As per the development agreement, the Owners allocations are 7 residential flats to be given by the Developer as per plan and the Developer shall complete the new building within 6 months from the date of execution of the development agreement.
As per the development agreement the OP No.1 constructed G+5 storied building on the said premises. Power of attorney was executed in favour of the Developer. As per terms of agreement the Developer was under the obligation to comply with the terms of agreement. Even after lapse of 3 and half years from the date of agreement the Developer deliberately and with malafide intention failed and neglected to hand over peaceful possession of Owners allocation in habitable condition and other common facilities, amenities and services. OP Nos.2 to 7 are ready and willing to execute and register the deed of conveyance to the purchasers excepting the Owners allocation.
The OP No.1 Developer has filed the W.V. contending, inter alia, that he is willing to complete the remaining works of the flat with co-operation from the Land Owners. Sri Narayan Dey, Advocate with ill and ulterior motive is not allowing the OP No.1 to enter the suit premises to complete the pending works. The Complainant is well acquainted with such facts.
The Land Owners, that is, OP Nos.2 to 7 with ulterior motive inducted Sri Narayan Dey, Advocate into the development project by making one supplementary joint venture dated 15/09/08 empowering the said Advocate to take control of the development project.
Subsequently, the OP Nos.2 to 7 and Sri Narayan Dey with ulterior motive removed the Developer out of the project who had to file a case u/s 144 Cr.P.C. and these facts are known to the Complainant.
Sri Narayan Dey, Advocate took over the control and forcibly occupied two flats 4A and 5A without paying any consideration amount to the Developer and did not pay inspite of demands made by the OP No.1 and all these facts are known to the Complainant. Sri Narayan Dey is also a necessary party in this case.
The OP No.1 is willing to complete the flat of the Complainant and others, but for the serious objection made by the Owners in consultation and connivance with Sri Narayan Dey, could not enter the premises even with the police help from the New Alipore P.S. The OP No.1 is willing to register the deed of conveyance in the name of the Complainant on receiving the balance amount.
The Learned Counsel for the Complainant has submitted that the flat in question belonged to Smt. Mohua Dutta who cancelled her agreement for purchase. It is contended that out of the consideration of Rs.15 lakh the Complainant in all paid Rs.7,40,000/-. It is submitted that there is a declaration made by OP No.1 being Annexure-H with the promise to transfer the flat within one month from 04/12/09 in favour of the Complainant. It is submitted that power of attorney was executed by the Land Owners and OP No.1 did not adduce any evidence. The Learned Counsel for the Complainant has referred to the decision reported in AIR 1973 Patna 299 [Birendra Mohan Ghosh vs. Mohamed Umar]. It is submitted that Smt. Manju Das signed in the development agreement and also in the power of attorney. It is contended that it was the undivided property of the heirs of Chittaranjan Dutta and the Complainant purchased from the Developers allocation and as per terms of agreement the Landlords will not interfere with the actions of the Developer and will sign the deed as confirming party. It is contended that as per Annexure-B, that is, agreement for sale the Developer is the Constituted Attorney and the omission of the name of Smt. Manju Das in the agreement for sale is immaterial as all the Land Owners executed the power of attorney and the Developer is the Constituted Attorney of the Land Owners.
The Developer OP No.1 has submitted that there was an agreement with the Owner for development of the premises and Rs.2,75,000/- was paid to the Owner. It is submitted that in April 2006 three flats were handed over in the 1st floor to the Owners, but from December 2006 the Land Owners started opposing the Developer and a case u/s 144 Cr.P.C. was started and an order was passed stopping further proceedings of the work. It is submitted that subsequently the case was withdrawn. It is contended that Rs.7,000/- was paid to the Advocate to draft the agreement. It is submitted that the Developer has nothing to do and nothing to say against the Purchaser. It is contended that Rs.36 lakh is due from Sri Narayan Dey, Advocate.
It has been submitted by the Land Owners that in the agreement dated 15/09/08 there are 8 signatures and in the power of attorney 7 Land Owners only signed and, as such, the agreement for sale is not enforceable. Smt. Manju Das who did not sign in the agreement for sale has not been impleaded.
It is submitted that the complaint is bad for non-joinder of parties because of absence of Smt. Manju Das.
We have heard the submission made by both sides.
Since it is a development agreement followed by power of attorney and all the Land Owners having signed the development agreement and the power of attorney, the question of non-joinder of necessary parties will not arise. The consideration money was Rs.15 lakh out of which Rs.7,40,000/- was paid by the Complainant. The Developer is the Constituted Attorney on behalf of all the Land Owners. From the W.V. of all the OPs it appears that none of the OPs has any objection in respect of execution of deed of sale in favour of the Purchaser. It is the settled law that the dispute between the Land Owner and the Developer would not stand in the way of the delivery of possession and registration of deed in favour of the Complainant. The Complainant is a bonafide Purchaser for value without notice and from the standpoint of equity she is entitled to get delivery of possession and the registration of the deed in respect of her flat. The complaint, therefore, succeeds.
The complaint is allowed. All the OPs are jointly and severally directed to deliver possession of the flat, execute and register the deed of conveyance in favour of the Complainant within 45 days from the date of passing this order. All the OPs jointly and severally are further directed to pay compensation of Rs.70,000/- and litigation cost of Rs.21,000/- to the Complainant within 45 days from the date of passing this order failing which interest @ 9% p.a. shall accrue from the date of default till realisation.
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MEMBER(TG) MEMBER(L) PRESIDENT