State Consumer Disputes Redressal Commission
Sri Sanjeev Jain vs Sri Sona Halder on 13 December, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/476/2015 1. Sri Sanjeev Jain S/o, Sri Shankar Lal Jain, P - 343, C.I.T.Road, Scheme - VIM, P.S - Phoolbagan, Kolkata - 700 054. ...........Complainant(s) Versus 1. Sri Sona Halder 509, Purba Sinthee Road, Madhu Garh, P.S - Dum Dum, Kolkata - 700 030. 2. Sri Nanda Halder 509, Purba Sinthee Road, Madhu Garh, P.S - Dum Dum, Kolkata - 700 030. 3. Sri Chandan Kumar Roy, Proprietor of M/s. Calcutta Waterproofing Co. Ground Floor, Room No. - 11, 71, Park Street, Kolkata - 700 016. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Dipankar Sen, , Mr. Subhas Mitra, Advocate For the Opp. Party: Mr. Sankar Narayan Saha, Advocate Dated : 13 Dec 2017 Final Order / Judgement Date of filing - 11.12.2015 Date of final hearing - 05.12.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an intending purchaser against the landowners (Opposite Party Nos. 1 & 2) and the developer/builder (OP No.3) on the allegation of deficiency in services on the part of them in respect of a flat and car parking space in a consumer dispute of housing construction.
In a nutshell, complainant's case is that on 05.10.2010 he entered into an agreement with the Opposite Party No.3/developer and also constituted Attorney of OP Nos. 1 & 2 to purchase of a flat measuring about 1120 sq. ft. super built up area being Flat No.4C on the 4th floor and one covered car parking space measuring about 150 sq. ft. more or less on the ground floor at Premises No. 121/2 (Old No.13), Mordecai Lane, P.S.- Dum Dum, Kolkata - 700074, Dist- North 24 Parganas at a total consideration of Rs.25 lakhs. The complainant has stated that he has paid the entire consideration amount of Rs.25,00,000/-. In the Agreement, it was stipulated that the subject flat and car parking space will be delivered within the month of January, 2014. The OP No.3/builder after completion of construction, handed over physical possession of the flat and car parking space to him on 22.12.2013. However, despite repeated requests and persuasions, the opposite parties are not showing any interest to execute the Sale Deed. Hence, the complainant approached this Commission with the instant complaint with prayer for several reliefs, viz. - (a) a direction upon the opposite parties to execute and register the Deed of Conveyance in default through the machinery of the Commission; (b) compensation of Rs.1,50,000/- etc. The OP Nos. 1 & 2/landowners by filing written version has stated that it is the dispute between the complainant and OP No.3 and they are not in no way associated with the present dispute.
The OP No.3/developer did not receive the notice of the case and as such the complaint was heard against him exparte.
In support of his case, complainant has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the OP Nos. 1 & 2. On behalf of OP Nos. 1 & 2, Sri Sona Halder, OP No.1 has filed evidence on affidavit. The OP No.1 has also filed reply against the questionnaires put forward by the complainant. Besides the same, the parties have relied upon several documents including the Agreement for Sale dated 05.10.2010.
I have scrutinised the pleadings, evidence on record including the documents. I have also considered the submission advanced by the Ld. Advocates appearing for the complainant and OP Nos. 1 & 2.
At the outset, it would be pertinent to record that the complainant has entered into an agreement to purchase of a flat and a car parking space at a consideration of Rs.25,00,000/- and when on the allegation of deficiency in services on the part of OPs, the complaint has been lodged, it is amenable before this Commission.
The evidence on record makes it quite clear that OP Nos. 1 & 2 were the owners of a piece of land measuring about 7 cottahs 9 chittaks and 21 sq. ft. more or less lying and situated at Mouza - Bagjola being Holding No.121 (Premises No.121/2), Mordicai Lane, P.S.- Dum Dum, Kolkata - 700074, Dist- North 24 Parganas within the local limits of Ward No.10 of South Dum Dum Municipality. The OP Nos. 1 & 2 in order to develop the said land and to raise a multi-storied building entered into a Development Agreement with OP No.3 on 04.12.2002. Subsequently, on account of change of owner's allocation, a supplementary agreement was executed in between OP Nos. 1 & 2 on the one hand and OP No.3 on the other hand on 26.04.2005. On the date of execution of Development Agreement i.e. on 04.12.2002, the OP Nos. 1 & 2 also executed a General Power of Attorney in favour of OP No.3 empowering him to deal with the property. Both the documents were, however, notarised before the Notary Public on 10.12.2002.
By dint of the power conferred upon him by OP Nos. 1 & 2, the OP No.3 on behalf of himself and also as constituted Attorney of OP Nos. 1 & 2 had entered into an Agreement for Sale with the complainant on 05.10.2010 to sell of a flat measuring about 1120 sq. ft. super built up area being Flat No.4C on the 4th floor and one covered car parking space, measuring about 150 sq. ft. more or less on the ground floor at Premises No. 121/2 (Old No.13), Mordecai Lane, P.S.- Dum Dum, Kolkata - 700074, Dist- North 24 Parganas at a total consideration of Rs.25 lakhs. The Memo of consideration of Agreement for Sale and the money receipt dated 20.05.2011 clearly indicates that the complainant has paid the entire consideration amount of Rs.25,00,000/- to the OP No.3. The complainant, thereafter, has made several correspondences and communications with the opposite parties to get the deed registered in favour of him but all his attempts went in vain. In fact, the OP No.3 was under obligation to hand over the subject flat and car parking space to the complainant within the month of January, 2015 but the developer has failed to keep his promise. However, on payment of entire consideration amount, the OP No.3 handed over the possession of the flat and the car parking space to the complainant on 22.12.2013.
Needless to say, it is statutory obligation on the part of developer/builder to execute the Sale Deed after receipt of entire consideration amount. The OP No.1 in his reply against the questionnaire of the complainant has admitted that they did not cancel the Power of Attorney made in favour of the developer. Therefore, the OP No.3 after accepting the entire consideration amount, should not flee away without executing the Deed of Conveyance in favour of a person who has paid the entire consideration amount. In that perspective, the OP No.3 was quite deficient in rendering services towards the complainant.
The factual matrix makes it abundantly clear that the complainant being a 'consumer' as defined in Section 2(1)(d)(ii) of the Act hired the services of OP No. 3 on consideration to purchase a flat and car parking space but it was found that the OP No.3 was deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. The OP Nos. 1 & 2 being landowners cannot escape their liability in view of the provision of Section 226 of the Indian Contract Act, 1872which provides - "If any contract has entered into through an agent and obligations arising from acts done by an agent, may be enforced in the same manner and will have the same legal consequence, as if the contracts had been entered into and the acts done by the principal in person". However, in the instant case, the liability of the landowners/OP Nos. 1 & 2 is limited only to the extent of execution of Sale Deed.
Considering the materials on record, I am of the view that an order directing the opposite parties to execute and register the Sale Deed alternatively to get the Deed executed through the machinery of the Commission will serve the purpose. However, the conduct and attitude of the OP No.3/developer being harassing in nature which causes immense trouble to the complainant, I think the OP No.3 must be saddled with compensation which I assess at Rs.1,00,000/-. The apathy on the part of developer led the complainant to lodge the complaint for which the complainant is entitled to litigation cost which I quantify at Rs.10,000/-.
Consequently, the complaint is allowed on contest without cost against OP Nos. 1 & 2 but exparte against OP No.3 with cost of Rs.10,000/-.
The Opposite Parties are jointly and severally directed to execute the Deed of Conveyance in respect of the flat and the car parking space in favour of the complainant as per Agreement for Sale dated 05.10.2010 within 30 days from date otherwise the complainant shall have liberty to get the Deed executed through the machinery of this Commission. The OP No.3 is further directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- aggregating of Rs.1,10,000/- within 30 days from the date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER