State Consumer Disputes Redressal Commission
Smt. Sakuntala Jaiswal vs Sri Samir Kumar Neogy on 2 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/31/2014 1. Smt. Sakuntala Jaiswal W/o Sri Harish Chandra Jaiswal, 19E/H/33, Goabagan Street, P.S. Burtolla, Kolkata - 700 006. 2. Smt. Bhavna Jaiswal W/o Sri Dinesh Kumar Jaiswal, 19E/H/33, Goabagan Street, P.S. Burtolla, Kolkata - 700 006. ...........Complainant(s) Versus 1. Sri Samir Kumar Neogy S/o Late Debaprasad Neogy, 58, Gouri Bari Lane, P.S. Manicktala, Kolkata - 700 004. 2. Smt. Sonali Nag, Prop., M/s. Green House Developers 19, Badridas Temple St., P.S. Manicktala, Kolkata -700 004 & also at 63/19, Dum Dum Road, Kolkata - 700 074. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Satya Narayan Sinha, Advocate For the Opp. Party: Mr. Ratanlal Das, Advocate Dated : 02 Mar 2017 Final Order / Judgement Date of filing : 07.02.2014 Date of final hearing : 17.02.2017 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 intending purchasers against the land owner ( OP No.1) and developer ( OP No.2) with an allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
Cut short of details, complainants case is that on 03.08.2010 complainants have entered into an agreement for sale with the OP No.1 /landowner to purchase of a self-contained flat measuring about 1400 sq.ft. super built up area being flat no. 4B on the 4th floor and one car parking space on the ground floor at premises no. 19,Badridas Temple Street, P.S.- Manickala, Kolkata - 700 004 at a total consideration of Rs. 42,50,000/-.The Complainants have paid part consideration of amount of Rs. 38,00,000/-. On 10.08.2012, the OPs have handed over the possession of the flat in question with an assurance to hand over the garage space within a short date but ultimately the OPs did not keep their words. Hence, the complainants have come up in this Commission with the instant complaint with prayer for following reliefs , viz - (a) to direct the OPs to hand over the possession of garage space ; (b) to execute and register deed of conveyance in respect of flat and garage space in question etc. OP No.1/landowner by filing a written version did not deny the factum of agreement and payment of part consideration amount but has stated that the OP No.2 has not yet handed over garage space to him nor the OP No.2 has obtained the building Completion Certificate from the Kolkata Municipal Corporation and as such he could not hand over the possession of the garage space to the complainant and execute the deed of conveyance.
OP No.2 /developer by filing a written version has stated that he had instituted one suit being T. S. No.419/2013 against OP No.1 in the Court of Ld. 2nd Civil Judge ( Jr. Division ) and in the said suit the Ld. Civil Judge has passed an order directing the defendant/OP No.1 from transferring, selling handing over or by creating any third party interest over 'B' schedule property and as such the present complaint is liable to be dismissed.
On the basis of the pleadings aforesaid, the following points are framed for adjudication :-
(1) Are the complainants 'consumer' as defined in Section 2(1)(d)(ii) of the Act ?
(2) Are the OPs deficient in rendering services to the complainants ? and (3) Are the complainants entitled to the relief or reliefs, as prayed for ?
In order to substantiate their case, the complainants themselves have tendered evidence on affidavit on behalf of them against which questionnaire has been filed by the OP no.1 to which reply was given by the complainants.
Similarly, on behalf of the contesting OP, OP No.1 himself has filed evidence on affidavit. The contesting OP No.1 has also given reply against the questionnaires set forth by the complainants.
Besides oral evidence, both the parties have relied upon documentary evidence too.
On the basis of materials on record, we shall proceed to discuss how far the complainants have been able to prove their case.
DECISION Point No. 1 :
Admittedly, the OP No. 1 is the owner of the building /structure lying and situated at premises no. 19, Badridas Temple Street, P. S. - Manicktala, Kolkata - 700 004. It is not in dispute that the OP No.1 being landowner had entered into an agreement with OP No.2/developer for raising construction and development of the said property. Accordingly, the owner of the property executed and registered the general Power of Attorney in favour of the developer authorising him to raise construction. As per terms of the agreement, the developer /OP No.2 obtained permission of sanctioned building plan from the Kolkata Municipal Corporation .
Admittedly, on 03.08.2010 the landowner had entered into an agreement for sale with the complainants to sell a residential flat measuring 1400 sq . ft. on the 4th floor and a car parking space on the ground floor of the premises at a total consideration of Rs. 42,50,000/-. It also remains undisputed that the complainants have paid Rs. 38,00,000/-out of total consideration amount and a balance amount of Rs.4, 50,000/- is due and payable by them.
Therefore, it is quite apparent that the complainants being intending purchaser hired the services of the OPs in a consumer dispute of housing construction. Accordingly, the complainants must be categorised as 'consumer' as envisaged in Section 2(1)(d)(ii) of the Act.
Accordingly, this point is decided in the affirmative and in favour of the complainants.
Point no. 2 :
As the complainants have established that they are 'consumer' under the scheme of the Act, we shall scrutinise now whether the OPs are deficient in rendering services to the complainants.
The record reveals that on 03.08.2010 the agreement was entered into between the parties. In the agreement, it was stipulated that the developer shall complete the flat and garage in question and hand over the possession of the same and also register the unit before 15 days from the date of taking possession of the flat /garage. Admittedly, the OP No.1 handed over the possession of the subject flat to the complainants on 10.08.2012 but inspite of requests and reminders did not hand over the car parking space.
In this regard, OP No.1 /landowner has made it clear that he could not deliver possession of the garage space and also could not execute the deed of conveyance as OP No.2/developer did not hand over him the garage space and further did not provide him Completion Certificate. The evidence on record indicate that the developer has instituted one suit being T.S. No.419/2013 against the land owner in the Court Ld. 2nd Civil Judge ( Jr.Division ) , Sealdah and in that suit by an order being Order No. 1 dated 18.11.2013 the Ld. Civil Judge passed an order of ad-interim injunction directing the OP No.1 /land owner to restrain himself from transferring, selling, handing over or by creating any third party interest over 'B' schedule property as mentioned in the application. The OP No.2 has not filed any copy of plaint or injunction application and as such it is difficult to ascertain the nature of 'B'schedule property.
In Faquir Chand Gulati -vs. - Uppal Agencies Pvt. Ltd. & Anr. reported in (2008) 10 SCC 345, observing the situation, the Hon'ble Supreme Court in paragraph - 23 has observed thus -
" We may notice here that if there is a breach by the land owner of his obligations, the builder will have to approach a Civil Court as the land owner is not providing any service to the builder but merely undertakes certain observations towards the builder, breach of which would furnished a cause of action for specific performance and/or damages .......".
The builder /developer has rightly sued the land owner for alleged breach of contract, but such a inter - se dispute between the developer - landowner cannot affect the right of a purchaser on valuable consideration.
Moreover, the pendency of a Civil Suit, where the complainants are not parties cannot be a ground to stay of the proceeding. Referring to a decision of the Hon'ble Supreme Court reported in (2013) 7 SCC 622 ( Guru Granth Shaeb Sthan Meerghat Vanaras -vs. - Ved Prakash & Ors. ), The Hon'ble National Consumer Commission in an order dated 07.11.2014 made in CC/383/2013 and other connected complaints has observed -
"We are, therefore, of the view that the trial in Criminal Cases against the Opposite Party, is no ground for stay of proceedings before the Consumer Fora. As a matter of fact, having regard to the object and intent of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand. Accordingly, the first preliminary objection fails ".
After entering into an agreement and after accepting bulk consideration amount, it is the statutory obligation on the part of the developer /land owner to execute the sale deed in favour of the purchaser and unless the sale deed executed, the cause of action is a continuous one. Moreover, it is the bounden duty on the part of developer to provide Completion Certificate like handing over possession and execution of the sale deed.
After considering the materials on record, it is quite evident that the OPs are deficient in rendering services to the complainants in handing over the garage space and also execution and registration of sale deed after accepting the balance consideration of Rs. 4,50,000/-.
Therefore, the OPs being deficient in accordance with Section 2 (1) (g) read with Section 2 (1)(o) of the Act, this point is also decided and disposed of in favour of the complainants.
Point no. 3 :
On evaluation of materials on record and in view of our foregoing discussion in Point No. 1 and 2, the complainants are entitled to relief, as prayed for. In our view a direction upon the OPs to hand over the garage space as mentioned in the agreement for sale and to execute and register the Deed of Conveyance, a compensation of Rs. 1,00,000/- on account of harassment and mental agony suffered by the complainants and a litigation cost of Rs. 10,000/- would sub-serve the object of justice.
This point is also disposed of accordingly.
In the result, complaint succeeds in part. It is, accordingly, ORDERED That the petition of complaint is allowed on contest against OPs cost of Rs. 5,000/- each to be paid by OP Nos. 1 and 2 in the favour of the complainants.
The OPs are jointly and severally directed to deliver the possession of garage space as per terms of the agreement to the complainants and also to execute and register the Deed of Conveyance in respect of schedule property as mentioned in the agreement within 30 days from date subject to payment of Rs. 4,50,000/ by the complainants.
The OP Nos. 1 and 2 are directed to make payment of Rs.50,000/- each towards compensation and Rs. 5,000/- each as litigation cost totalling Rs. 55,000/- each to the complainants within 30 days from date, otherwise the amount shall carry interest @ 9% p.a. from this date till its full realisation.
The Registrar of the Commission is directed to send copies of the judgement free of cost to the parties of the case at once for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER