State Consumer Disputes Redressal Commission
Sri Sourav Banerjee vs Sri Tushar Kanti Bhowmic on 13 September, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/53/2016 1. Sri Sourav Banerjee S/o, Lt. Swapan Banerjee, Jyoti Apartment, 404, P.K. Guha Road, Dum Dum Cantonment, P.S - Dum Dum, Kol - 700 028. ...........Complainant(s) Versus 1. Sri Tushar Kanti Bhowmic S/o, Lt. Mrinal Kanti Bhowmick, Sole Proprietor of S.B. Construction, 32/3N, Gariahat Road (South), P.S - Lake, Kol - 700 031. 2. Sri Subrata Dutta S/o, Lt. Sudhangshu Datta, 16, Ramkrishna Lane, P.S - Garfa, Kol - 700 031. 3. Sri Satyabrata Datta S/o, Lt. Sudhangshu Datta, 820, Madurdaha, 3rd Floor, Kalikapur, Kol - 700 107. 4. Sri Sibabrata Dutta S/o, Lt. Sudhangshu Datta, 16, Ramkrishna Lane, P.S - Garfa, Kol - 700 031. 5. Smt. Patralekha Banerjee W/o, Sri Priyabrata Banerjee, 43/42, Jheel Road, P.S - Garfa, Kol - 700 031. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Debnath Saha, Advocate For the Opp. Party: Mr. Sovanlal Bera, Advocate Mr. Subrata Mondal, Advocate Dated : 13 Sep 2017 Final Order / Judgement Date of filing : 05.02.2016 Date of final hearing : 30.08.2017 The instant complainant under Section 17 ( wrongly 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 ( OP No.1) and land owners ( OP Nos.2 to 5 ) on the allegation of deficiency of services on the part of them in a consumer dispute of housing construction.
Cut short of details, complainant's case is that on 09.12.2014 he entered into an agreement for sale with the Opposite Parties to purchase of a self-contained flat measuring about 930 sq.ft. super built up area being flat no.C-4 on the 4th floor and one car parking space measuring about 130 sq.ft. with common areas and amenities at premises no. 16,Ramkrish Lane, P. S. - Garfa, Kolkata - 700 031, District - South 24 - Parganas within the local limits of Kolkata Municipal Corporation ( KMC) at a total consideration of Rs.44,50,000/-. Complainant has stated that he has already paid Rs. 40,05,000/- out of the said total consideration amount. The OP Nos.1 handed over the possession to the complainant on 15.10.2015. The complainant ready to pay the balance amount and to get the deed registered in his favour. However, all his requests and persuasions including legal notice turned a deaf ear. Hence, the complainant has come up in this Commission with the instant complaint with prayer for following reliefs, viz - (a) to direct the OPs to execute and register deed of conveyance in respect of the subject flat and car parking space in question; (b) Compensation of Rs. 2,00,000/- ; (c) to pay litigation cost etc. The OP No.1 /developer by filing a written version has stated that they are all along ready and willing to execute and register the deed of conveyance in favour of the complainants but due to revocation of Power of Attorney by the OP Nos. 3 to 5 they could not execute and register the deed of conveyance in favour of the complainants.
The OP No.2/one of the landowners by filing a separate written version has stated that he is ready and willing to execute the sale deed in favour of the complainants.
The OP Nos. 3 to 5, the other three landowners did not appear to contest.
In support of their case, complainant has filed evidence through affidavit. The complainant has also relied upon some documents.
Perused the evidence on record and considered the submission advanced by the Ld. Advocate for the complainant, OP No.1 and OP No.2 respectively.
Undisputedly, OP Nos. 2 to 5 were the absolute owners of a piece of land measuring about 8 cottahs 2 chittaks and 15 sq.ft. at premises No. 16, Ramkrishna lane, P. S. - Kasba now Garfa, Kolkata - 700 031. In order to raise a multi-storied building the landowners had entered into a registered Memorandum of Agreement with the OP No.1/developer on 06.12.2012. The landowners had also executed a registered General Power of Attorney in favour of OP No.1. Accordingly, the OP No.1 started construction of a G + 4 storied building over the said property and to that effect obtained sanctioned building plan from the KMC.
It is evident that on 09.12.2014 the complainant entered into an agreement for sale with the Opposite Parties to purchase of a self-contained flat measuring about 930 sq.ft. super built up area being flat no.C-4 on the 4th floor and one car parking space measuring about 130 sq.ft. with common areas and amenities from the developer's allocation at premises no. 16,Ramkrishna Lane, P. S. - Garfa, Kolkata - 700 031, District - South 24 - Parganas within the local limits of Kolkata Municipal Corporation ( KMC) at a total consideration of Rs.41,00,000/-. It also transpires that the complainant has paid Rs. 40,05,000/- out of total consideration of Rs. 44,50,000/-.
Evidently, the complainant is in possession of the property for which he entered into an agreement for sale. In fact, the complainant has taken possession of the subject flat and car parking space from 15.10.2015 .
The complainant has expressed his willingness to pay the balance consideration money and the OP No.1/developer is also willing to execute the sale deed but the whole trouble has cropped up due to revocation of Power of Attorney by OP Nos.3 to 5 on 08.10.2015.
The OP Nos. 3 to 5 being land owners cannot stand in the way of the complainant to get the deed registered in favour of him. The complainant is going to purchase the schedule property from the allocation of the developer and as such the landowner has no locus standi to raise any dispute. In the case reported in (2008) 10 SCC 345 ( Faquir Chand Gulati -vs. - Uppal Agencies Pvt. Ltd. & Anr. ) the Hon'ble Supreme Court has observed - " ..... where the builder commits breach of his obligation, 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 the Consumer Protection Act, for relief as 'Consumer', against the builder as a service provider .....".
The above observation of the Hon'ble Apex Court clearly demonstrate that an inter- se dispute between the landowner and the developer cannot take away the right of an intending purchaser, who has paid part consideration amount and ready to pay the balance amount.
In view of the above, the complainants are entitled to relief as prayed for. In my view, an order directing the Opposite Parties to execute the sale deed in favour of the complainant subject to payment of balance consideration amount in favour of OP No.1 and the litigation cost of Rs. 10,000/- to be paid by OP Nos. 3 to 5 in the facts and circumstances will meet the ends of justice . I am not awarding any amount as compensation as the complainants are in possession without making payment of entire consideration amount.
Consequently, the petition of complaint is allowed on contest against OP No.1 and OP No.2 and exparte against the rest. The OPs are jointly and severally directed to execute and register the Deed of Conveyance in respect of schedule property as mentioned in the petition of complaint within 30 days from date in favour of the complainant subject to payment of balance consideration amount by the complainant in favour of OP No.1 otherwise complainant shall have liberty to get the deed executed through this Commission on payment of balance amount in the Commission. The OP Nos. 3 to 5 are further directed to pay litigation cost of Rs. 10,000/- in favour of the complainants within 30 days otherwise the amount shall carry interest @9% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of the order to the parties free of cost at once for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER