State Consumer Disputes Redressal Commission
Smt. Debjani Bhattacharjee vs Smt. Chandra Aditya on 25 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/382/2016 (Arisen out of Order Dated 14/03/2016 in Case No. Complaint Case No. CC/117/2015 of District Howrah) 1. Smt. Debjani Bhattacharjee W/o Nirmal Kumar Bhattacharjee, 7/4, Telco Colony, Jamshedpur, Dist. East Singhbhum, Jharkhand State. 2. Smt. Tapasi Chowdhury W/o Amitava Chowdhury, A.T. Ghosh Road, P.S. Jagacha, Howrah - 711 112. 3. Smt. Runu Lahiri W/o Rathindra Prosad Lahiri, 3/1, Ambika Kundu Lane, Howrah. 4. Karabi Lahiri D/o Lt. Bhavani Prasad Lahiri, 3/1, Ambika Kundu Lane, Howrah. ...........Appellant(s) Versus 1. Smt. Chandra Aditya W/o Jasoda Jiban Adity, R/o Ashoka Apartment, 1st floor(South-East side), 3/1, Ambika Kundu Lane, P.S. Shibpur, Dist.Howrah. 2. M/s. Creative, partnership firm 49, Kali Prasad Banerjee Lane, P.S. Bantra, Howrah - 711 101. 3. Jyotimoy Roy, partner, M/s. Creative S/o Lt. Ajit Kr. Roy, 49, Kali Prasad Banerjee Lane, P.S. Bantra, Howrah -711 101. 4. Subrata Karar, partner, M/s. Creative 49, Kali Prasad Banerjee Lane, P.S. Bantra, Howrah -711 101. 5. Sri Subir Chakraborty S/o Lt. Saradindu Chakraborty, 7/4, Telco Colony, Jamsedpur, Pin - 831 004. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Ashish Kumar Mazumdar, Advocate Mr. Loknath Chowdhury (Authorised Person)/, Advocate For the Respondent: Mr. Abhik Kr. Das, Advocate Mr. Barun Prasad, Mr. Subrata Mondal, Advocate Mr. Barun Prasad, Mr. Subrata Mondal, Advocate Mr. Barun Prasad, Mr. Subrata Mondal, Advocate Dated : 25 Jan 2017 Final Order / Judgement Date of Filing - 03.05.2016 Date of Hearing - 11.01.2017 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Party nos. 2, 3, 4 & 5(b) to impeach the Final Order dated 14.03.2016 passed by the District Consumer Disputes Redressal Forum, Howrah (in short, Ld. District Forum) in Consumer Complaint no. 117/2015 whereby the consumer complaint initiated by the Respondent no.1/intending purchaser under Section 12 of the Act was allowed on contest against the OP nos. 1, 3 & 4 and exparte against the rest with the direction upon the OPs to execute and register the Deed of Conveyance within 30 days, to pay compensation of Rs.20,000/-, Rs.5,000/- as litigation cost etc. The Respondent no.1 herein being Complainant lodged the complaint asserting that on 13.01.2003 he has entered into an Agreement for Sale with the OP no.1/developer to purchase of a self-contained flat measuring about 750 sq. ft. on the 1st floor in the building situated at Holding No.3/1, Ambika Kundu Lane, P.S.- Shibpur, Dist- Howrah within the local limits of Ward No.44 of Howrah Municipal Corporation. On payment of entire consideration amount of Rs.4,87,500/- by the Complainant to the developer, the OP no.1 handed over the possession of the flat to the Complainant on 12.12.2003 and since then, the Complainant is in physical possession of the said flat. However, inspite of repeated requests, the OPs have not executed Registered Deed of Sale in favour of the Complainant till date. Hence, the Respondent no.1 being Complainant approached the Ld. District Forum with prayer for certain reliefs, viz- (a) to direct the OPs for execution and registration of the Sale Deed in respect of the subject flat; (b) to pay compensation of Rs.5,00,000/-; (c) litigation cost of Rs.10,000/- etc. The Appellant nos. 2 & 4 namely Smt. Tapasi Chowdhury and Smt. Karabi Lahiri respectively by filing separate written versions disputed the claim of the Complainant. However, Respondent nos.2 to 4/developer firm and its partners did not refute the contention of the Complainant and agreed to execute the Sale Deed.
The Appellant no.4 being OP no.3 in her written version has stated that as per terms and conditions of the Development Agreement dated 30.01.2002, 30% of the total constructed area was not delivered to them by the developer and as such she prays for a direction upon the OP no.1 to deliver the owner's allocated portion as per terms and conditions of the Development Agreement dated 30.01.2002.
The Appellant no.2 being OP no.4 in her written version has stated that on account of death of her father Bhawani Prasad Lahiri, his share devolved upon his legal heirs including herself but she did not execute any Development Agreement. But the developer has already completed the construction without her consent. Therefore, the complaint should be dismissed.
After evaluation of the evidence on record, the Ld. District Forum by the impugned order allowed the consumer complaint on contest against the developer and Appellant nos. 2 & 4 and exparte against the rest with certain directions upon the Appellants and Respondent nos.2 to 5 as indicated above, which prompted them to prefer this appeal.
We have scrutinised the materials on record and considered the submission advanced by the Authorised Representative of the Appellants as well as Mr. Abhik Kumar Das and Mr. Barun Prasad, Ld. Advocates for the Respondent nos. 1/purchaser & 2 to 4/developer respectively.
Having heard the Representative and the Ld. Advocates for the respective parties and on going through the materials on record, it would reveal that the Respondent no.2 is a partnership firm represented by Respondent nos. 3 & 4. On 30.01.2002 the Respondent no.2/developer had entered into an agreement with the landowner for Development of land and to construct a multi-storied building at Holding no.3/1, Ambika Kundu Lane, Shibpur, Dist-Howrah within the local limits of Ward no.44 of Howrah Municipal Corporation. It is also not in dispute that on the date of execution of the said Agreement for Development, the landowners also executed a General Power of Attorney in favour of the developer/firm. In the agreement, it was stipulated that 30% of the total constructed area will be allocated in favour of the owners and the balance 70% will be allocated in favour of the developer.
Admittedly, on 13.01.2003, the Respondent no.1 entered into an agreement with the Respondent no.2 to purchase of a flat measuring about 750 sq. ft. approximately including 15% of super built up area on the 1st floor (north-east side) of the said newly constructed building at a total consideration of Rs.4,87,500/- @ Rs.650/- per sq. ft. It is also undisputed that the Respondent no.1 has paid the entire consideration amount to the developer and on 12.02.2013 the developer (Respondent no.2) has handed over the possession of the said flat in favour of Respondent no.1. It is also an admitted fact that after receiving possession, Respondent no.1 has been living in the said flat.
The whole dispute cropped up due to non-execution of the Sale Deed. The developer is ready and willing to execute the Sale Deed. The Appellant no.4 took a plea that the owners' allocated portion of 30% has not been delivered to them. A similar plea has also been taken by Appellant no.2 Smt. Tapasi Chowdhury.
There is no dispute or doubt that a complaint under the Act will be maintainable in the following situations -
Where the owner of a land who has entrusted the construction of a house to a promoter, has a complaint of deficiency of service with reference to the construction;
Where the purchaser or intending purchaser of a flat has a complaint against the builder/promoter with reference to construction or delivery or amenities.
While discussing over the matter, the Hon'ble Supreme Court in a decision reported in (2008) 10 SCC 345 (Faqir Chand Gulati - vs. - Uppal Agencies Pvt. Ltd. & Anr.) has observed in Paragraph-23 that where the builder 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 the Consumer Protection Act, for relief as 'consumer', against the builder as a service-provider. Therefore, a landowner cannot seek relief by filing a written version against a 'consumer' within the meaning of Section 2(1)(d) of the Act. For redressal of their grievances for non-allocation of their share, the landowners may approach the Consumer Forum but in any circumstances, a tussle between the landowner and the developer cannot stand in the way from the part of the purchaser to obtain a relief from a Consumer Forum.
During hearing of the appeal, the Authorised Representative of the Appellants has submitted that Appellant Tapasi Chowdhury has lodged FIR in Jagacha P.S. against the developer alleging her signatures in the Development Agreement and Power of Attorney are forged. Within four corners of the record, we do not find any reference of that police case. Moreover, the record does not show that the said Appellant has ever made any prayer before the Ld. District Forum for appointment of an handwriting expert to ascertain whether the signatures appeared in the Development Agreement and Power of Attorney are her genuine signatures or not. Furthermore, from the contents of the written version, it appears that the landowners including Tapasi allowed the Respondent no.2/developer to raise construction, precisely, the landowners never approached the Consumer Forum or in a competent Civil Court alleging such construction by the developer without any authority. Therefore, at this belated stage, such a hue and cry of the landowner cannot defeat the claim of a 'consumer'.
After giving due consideration to the submission advanced on behalf of the parties, we are of the view that the impugned order is based on proper reasoning and as such it does not require any interference.
Consequently, the appeal is dismissed on contest. However, there will be no order as to costs in this appeal.
The impugned Final Order is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Howrah for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER