State Consumer Disputes Redressal Commission
Shama Bano vs Sri Prem Prakash Singh on 1 October, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/76/2017 ( Date of Filing : 08 Feb 2017 ) 1. Shama Bano W/o Jahangir Alam, 12, Bhar Para Road, Ajanta housing Society, 3rd Floor, P.S. Shibpur, Dist. Howrah -711 103. ...........Complainant(s) Versus 1. Sri Prem Prakash Singh S/o Sri Shiv Kumar Singh, 31, Ashu Bose lane, P.S. & Dist. Howrah -711 101. 2. Amina khatoon W/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 3. Md. Hafizullah S/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 4. Md. Suhabuddin S/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 5. Md. Ataullah S/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 6. Md. Amanullah S/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 7. Haider Ali S/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 8. Hamida Khatoon W/o Md. Suban, D/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 9. Sofia Khatoon W/o Md. Wasim, D/o Lt. Md. Shamsuddin, 293, G.T. Road(S), P.S.- Shibpur, Dist. Howrah -711 102. 10. Mst. Saibunnesa W/o Lt. Md. Nasiruddin, 4, Mollah Para Lane, P.S.- Shibpur, Dist. Howrah, Pin-711 102. 11. Md. Nizamuddin S/o Lt. Md. Jamaluddin, 4, Mollah Para Lane, P.S.- Shibpur, Dist. Howrah, Pin-711 102. 12. Md. Jalik S/o Md. Birajuddin, 4, Mollah Para Lane, P.S.- Shibpur, Dist. Howrah, Pin-711 102. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: For the Opp. Party: Mr. Kallol Mahanti, Advocate Dated : 01 Oct 2018 Final Order / Judgement The instant Complaint under Section 17 (inadvertently mentioned u/s 12) of the Consumer Protection Act, 1986 (for brevity, "the Act") is at the instance of an intending purchaser against the developer/builder (Opposite Party No.1) and the land owners (opposite party Nos. 2 to 12) on the allegation on deficiency in services on the part of opposite parties in a consumer dispute of housing construction.
Succinctly put, Complainant's case is that on 14.09.2010 she entered into an agreement for sale with the opposite parties to purchase one self contained residential flat measuring about 850 Sq. ft. super built up area on the second floor together with common areas and facilities in the building under construction lying and situated at premises No.4, Molla Para Lane, P.S. - Shibpur, District Howrah within the local limits of Ward No. 37 of Howrah Municipal Corporation at a total consideration of Rs.20,51,000/-. The Complainant has stated that she paid Rs.17,50,000/- as part consideration amount towards the said total consideration amount as per agreement the OP No.1 was under obligation to complete the construction of the flat and to hand over the same within 12 months from the date of agreement for sale subject to payment of balance consideration price. The complainant has stated that time and again she requested OP No.1 to execute the sale deed in favour of her after accepting the balance amount but it went in vain. Hence, the complaint with prayer for following reliefs, viz - (a) a direction upon OPs to execute and register the deed of conveyance after receiving balance consideration of Rs.3,01,000/- ; (b) to pay compensation of Rs.4,00,000/- and (c) to pay litigation cost.
The opposite party No.1/ promoter by filing a written version has stated that pursuant to the agreement for sale, on the request of complainant, he delivered possession to the complainant though a sum of Rs.3,01,000/- was due and payable by the complainant. The opposite party No.1 has also stated that he is always ready and willing to perform his part of the contract by execution and registration of deed of conveyance but in absence of power of attorney of the owners, he is unable to execute the deed on acceptance of the balance consideration amount.
OP Nos. 2 to 12 (Land owners) have neither appeared nor filed written version.
In support of her case, complainant tendered evidence through affidavit. Despite several opportunities, OP No.1 did not file questionnaire an ultimately the record was taken up for final hearing. At the time of final hearing, a brief notes of argument has been submitted by the complainant.
The overwhelming evidence on record makes it quite clear that OP Nos. 2 to 12 were the owners and occupiers of a piece of land measuring about 6 cottahs 7 chittacks and 8 sq. ft. together with old dilapidated structures standing thereon lying and situated at premises No.4, Molla Para Lane, P.S-Shibpur, District Howrah within the local limits of Ward No.37 of Howrah Municipal Corporation. On 22.08.2007 the land owners had entered into an agreement with OP No.1 for construction of a multi-storied building over the said property. The land owners had also executed power of attorney in favour of OP No.1/developer authorising him to enter into agreement for sale with the intending buyers from the developers allocation.
Pursuant to the power conferred upon him by the land owners, OP No.1 had entered into an agreement for sale with the Complainant on 14.09.2010 to sell one self-contained flat measuring about 850 sq. ft. super built area on the second floor of the said building at a total consideration of Rs.20,51,000/-. As per terms of the agreement the OP No.12 was under obligation to complete the construction of the building and to hand over the subject flat to the complainant within 12 months from the date of execution of agreement for sale. It implies that the OP. No.1 should have executed the sale deed in favour of the complainant by 14.09.2011 on receipt of balance consideration of Rs.3,01,000/-. The evidence on record speaks that even after expiry of stipulated date of delivery of possession, complainant paid Rs.1,00,000/- on 08.02.2011 and Rs.1,50,000/- on 17.02.2012.
The OP No.1 has taken a plea that the land owners have revoked the power of attorney for which he could not execute the sale deed. In this regard, law is well settled. In the case of Faqir Chand Gulati vs.- Uppal Agencies Pvt. Ltd. reported in (2008) 10 SCC 345 the Hon'ble Supreme Court has laid down that an inter-se dispute between the land owner and the developer cannot be used as a ploy to wriggle out the obligations under the contract and put the buyer in lurch. Whatever may be the dispute in between the land owners and the developers, a purchaser should not be victimised. The developer had an opportunity in instituting a suit in a competent Civil Court against the land owners in accordance with the observations contained in paragraph 23 of the decision in the case of Faqir Chand Gulati (Supra).
On evaluation of materials on record, it reveals that the complainant being 'consumer' as a defined in Section 2(1)(d) of the Act hired the services of OPs in consideration. However, OP No.1 being constituted attorney of OP Nos.2 to 12 was found deficient in rendering services under Section 2(1)(g) read with Section 2(1)(o) of the Act. As a result, complainant is entitled to some reliefs. In my view, a direction upon the OPs jointly and severally to execute the deed of conveyance in favour of complainant alternatively to get the deed executed through this Commission on payment of balance amount will meet the ends of justice. The acts and conducts of OP No.1 has certainly caused mental agony and harassment to the complainant but considering the fact that the OP No.1 handed over possession of the subject flat in April 2011 i.e within the stipulated period and considering the loss suffered by the complainant, I think a compensation of Rs.40,000/- in the facts and circumstances will subserve the purpose. As the situation compelled the complainant to lodge complaint, she is entitled to litigation cost which I quantify at Rs.10,000/-.
In view of the above, complaint is allowed on contest against OP No.1 and ex-parte against other OPs with the following directions:-
The opposite parties are jointly and severally directed to execute and registered the deed of conveyance in respect of the property as mentioned in second schedule to the agreement for sale dated 14.09.2010 in favour of the complainant subject to payment of balance consideration amount ;
The opposite party No.1 is directed to pay compensation of Rs.40,000/- to the complainant for harassment and mental agony;
The opposite party No.1 is directed to pay litigation cost of Rs.10,000/- in favour of complainant;
The above payments of Rs.50,000/- shall be subject to adjustment of balance amount of Rs.3,01,000/-.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER