State Consumer Disputes Redressal Commission
Dr. Imtiaz Ahmed vs Associated Traders on 26 November, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/372/2014 ( Date of Filing : 31 Oct 2014 ) 1. Dr. Imtiaz Ahmed Owner of Flat No.301, 3rd Floor, 146A, Ustad Enayet Khan Avenue, P.S. - Beniapukur, Kolkata - 700 017. ...........Complainant(s) Versus 1. Associated Traders 5, Lower Range, Kolkata - 700 017, represented by Shagufta Parveen Alam. 2. Sri Amitav Das Gupta S/o Late Ramesh Chandra Das Gupta, 146A, Ustad Enayet Khan Avenue, Kolkata - 700 017. 3. Sri Amal Das Gupta S/o Late Ramesh Chandra Das Gupta, 146A, Ustad Enayet Khan Avenue, Kolkata - 700 017. 4. Sri Sukumar Das Gupta S/o Late Ganesh Chandra Das Gupta, 146A, Ustad Enayet Khan Avenue, Kolkata - 700 017. 5. Sri Tapas Das Gupta S/o Late Ganesh Chandra Das Gupta, 146A, Ustad Enayet Khan Avenue, Kolkata - 700 017. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. Dipa Sen ( Maity ) MEMBER For the Complainant: Mr. Sujoy Kr. Basu. Ms. Indrani Basu., Advocate For the Opp. Party: Mr. Ved Sharma, Advocate Mr. Priyanko Banerjee, Advocate Dated : 26 Nov 2018 Final Order / Judgement PER: HON'BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant complaint under Section 17 (inadvertently mentioned under Section12) 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 landowners (Opposite Party Nos. 2 to 6) on the allegation of deficiency in services on the part of them for non-registration of complainant's flat and non-delivery of Completion Certificate in a dispute of housing construction.
Succinctly put, Complainant's case is that on 20.04.2004 being an intending purchaser he entered into an agreement with the OPs to purchase one flat measuring about 860 sq. ft. super built up area being Flat No.301 on the 3rd floor and one car parking space on the ground floor with undivided proportionate share of land lying and situated at Premises No.146/A, Ustad Enayet Khan Avenue, P.S.- Beniapukur, Kolkata - 700017 within the local limits of Ward No.64 of Kolkata Municipal Corporation at a total consideration of Rs.15,75,000/-. The complainant has stated that due to urgent need for accommodation, he took delivery of possession of the flat on 14.10.2005 after making payment of full consideration of Rs.15,75,000/-. The complainant has stated that after taking possession time and again he requested the opposite parties to register the subject flat in favour of him and to handover the Completion Certificate but all the requests and persuasions went in vain. Hence, the complaint with prayer for several reliefs, viz. - (a) a direction upon the opposite parties to execute and register the Deed of Conveyance; (b) a direction upon the OPs to handover Completion Certificate; (c) to pay compensation of Rs.9,45,000/-; (d) to pay litigation cost of Rs.1,00,000/- etc. The Opposite Part No.1/developer did not contest.
The Opposite Party Nos. 2 to 6 by filing a written version have admitted that they had entered into Development Agreement with OP No.1 on 05.02.2003 for development of the property and executed a registered Power of Attorney on 17.02.2003 in favour of Shagufta Parveen Alam (Associated Traders). The contesting OPs have stated that on 14.10.2005 the possession was delivered to the complainant by violating the terms and conditions of the Agreement for which on 06.01.2006 they revoked the General Power of Attorney. However, the OPs have stated that they have no direct involvement with the agreement in between the complainant and OP No.1 because they had given the land to the developer/OP No.1 for the purpose of develop only and as per Agreement, certain flats are directly sold by developer himself with which they have no concerned. According to the contesting OPs, as there is no deficiency in service or any negligence on the part of them, the complaint should be dismissed.
Both the parties have tendered evidence through affidavit. We have seen the materials on record including the Agreement for Sale dated 20.04.2004.
The overwhelming evidence on record makes it abundantly clear that OP Nos. 2 to 6 were owners of a piece of land measuring about 6 cottahs approximately with an old dilapidated structure lying and situated at Premises No.146/A, Ustad Enayet Khan Avenue, P.S.- Beniapukur, Kolkata - 700017 within the local limits of Ward No.64 of Kolkata Municipal Corporation. Admittedly, on 05.02.2003 the landowners had entered into an agreement with OP No.1/developer for raising a multi-storied building over the said property. Accordingly, the landowners have also executed a registered Power of Attorney in favour of Shagufta Parveen Alam, daughter of Emajuddin Ahmed and sister Imtiaz Ahmed.
Subsequently, on 20.04.2004, the complainant entered into an agreement with OP No.1 to purchase of a flat measuring about 860 sq. ft. super built up area being Flat No.301 on the 3rd floor and one car parking space on the ground floor with undivided proportionate share of land in the said newly constructed building at a total consideration of Rs.15,75,000/-. It is not in dispute that on payment of entire consideration amount of Rs.15,75,000/-, the OP No.1/developer handed over the possession of the subject flat in favour of the complainant.
Now, the whole trouble has been started due to non-execution or registration of the Sale Deed. It is well settled that after accepting the consideration amount as per agreement, the developer is under obligation to - (a) deliver possession, (b) execute and register the Sale Deed and (c) obtain completion certificate/occupancy certificate from the authority concerned and unless all the above three conditions are fulfilled, the cause of action is a continuous one. In the instant case, though there has been a delay of about a decade in filing the complaint, such a delay will not be fatal as registration of Sale Deed has not been done.
Needless to say, the parties are bound by the agreement. A person who signs a document contain certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect. In a decision reported in AIR 1996 SC 2508( Bharati Knitting Company -vs. - DHL Worldwide Express Courier Division of Airfreight Ltd. ) the Hon'ble Supreme Court has observed thus :
"It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F.Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M.N.Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract"
In the above context, we will consider the terms and conditions of the Agreement. In Clause 8(a) of the Agreement for Sale dated 20.04.2004, it has been specifically mentioned that the purchaser should get the flat register by executing a Deed of Conveyance with the help of developer before taking possession of the flat. Therefore, in terms of the said agreement, the developer should have executed the Sale Deed in favour of the complainant at the time of delivery of possession. The situation has become changed on revocation of Power of Attorney by the landowners on 06.01.2006. Had the Sale Deed been executed at the time of delivery of possession i.e. in the month of October, 2005, the complainant would not have faced such a difficult situation.
The contesting Opposite Parties took a plea that the developer has violated the terms and conditions of the Development Agreement dated 05.02.2003 for which they revoked the General Power of Attorney on 06.01.2006. It clearly indicates that there was a dispute between the landowner and developer and for such dispute, the complainant being a purchaser has been victimised. The landowners have no locus standi to raise any objection in getting the flat in favour of the complainant from the allocation of the developer. The landowners may have genuine grievances against the developer but for which they may take action against the developer. In a decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati - Vs. - Uppal Agencies Pvt. Ltd. & Anr.] the Hon'ble Supreme Court in Paragrah-23 has observed thus -
"......where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider".
In another decision reported in 2014 (3) CPR 91 [Smt. V. Kamala & Ors. - Vs. - K. Rajiv] the Hon'ble National Commission has observed that an inter-se dispute between owner and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreement and leave the buyer in lurch.
Whatever dispute be there between the landowner and the developer, the same can be settled in an independent proceeding. As per agreement, the landowners have given consent to the developer to transfer the property falling to its share. Therefore, the rights of a bonafide purchaser cannot be defeated only on the ground that the landowners were not a party to the Agreement for Sale executed between the developer and the buyer.
On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(1)(d) of the Act hired the services of OP No.1 on consideration and OP No.1 has failed to fulfil their part of obligations as per terms of Agreement dated 20.04.2004 and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In our view, a direction upon the OPs to execute and register the Sale Deed and a direction upon the developer to obtain Completion Certificate from the Kolkata Municipal Corporation and to handover an authenticated copy of the same will meet the ends of justice. The unnecessary delay in executing the Sale Deed has caused tremendous anguish and harassment of the complainant for more than a decade for which the complainant is entitled to compensation and considering the loss suffered by the complainant, we think compensation of Rs.3,00,000/- in the facts and circumstances will meet the ends of justice. As the situation compelled the complainant to take recourse of law, he is entitled to litigation cost which we quantify at Rs.10,000/-.
With the above discussion, we dispose of the complaint with the following directions -
The Opposite Party Nos.1 to 6 are jointly and severally directed to execute the Sale Deed in respect of the flat and car parking space as per Agreement dated 20.04.2004 in favour of the complainant within 60 days from date;
The Opposite Party No.1 is directed to obtain Completion Certificate in respect of the property as mentioned in Agreement dated 20.04.2004 and to handover an authenticated copy of the same to the complainant within 60 days from date;
The Opposite Party No.1 is directed to pay a sum of Rs.3,00,000/- to the complainant as compensation;
The Opposite Party No.1 is directed to pay a sum of Rs.10,000/- to the complainant as costs of litigation;
The above amount of compensation and litigation costs aggregating Rs.3,10,000/- must be paid within 30 days from date in default, the amount shall carry interest @ 8% p.a. from this date till its realisation.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. Dipa Sen ( Maity )] MEMBER