State Consumer Disputes Redressal Commission
Sri Mithun Halder, Rep. By His ... vs Sri Tushar Kanti Bhowmic on 13 June, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/51/2016 ( Date of Filing : 05 Feb 2016 ) 1. Sri Mithun Halder, Rep. by his Constituted Attorney Sri Ranjan Kumar Halder 258, M.C. Garden Road, Block - 2, Unit - 2, Second Floor, P.S - Dum Dum, Kol - 700 030. 2. Smt. Priti Halder W/o, Sri Ranjan Kumar Halder, 258, M.C. Garden Road, Block - 2, Unit - 2, Second Floor, P.S - Dum Dum, Kol - 700 030. ...........Complainant(s) Versus 1. Sri Tushar Kanti Bhowmic S/o, Lt. Mrinal Kanti Bhowmic, Sole Proprietor of S.B. Construction, 32/3N, Gariahat Road (South), P.S - Lake, Kol - 700 031. 2. Sri Subrata Dutta S/o, 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, 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 Mr. Somnath Nag, Advocate Dated : 13 Jun 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, 'the Act') is at the instance of a couple/intending purchaser against the Developer/Builder (Opposite Party No.1) and the Landowners (Opposite Party Nos. 2 to 5) on the allegation of deficiency in services on the part of them for non-execution and registration of Deed of Conveyance in respect of a flat measuring about 1100 sq. ft. super built up area being Flat No.A-2 on the 2nd floor and one demarcated car parking space being No. G on the ground floor at Premises No.16, Ramkrishna Lane, P.S.- Garfa, Kolkata - 700031, Dist - South 24 Parganas within the local limits of Ward No.92 of Kolkata Municipal Corporation (KMC).
In a nutshell, complainants' case is that on 14.12.2012 they entered into an agreement with the opposite parties to purchase the subject flat and car parking space with the undivided proportionate share of the land and common rights over the common areas and amenities attached to the said premises at a total consideration of Rs.45,00,000/-. The complainants have stated that they have already paid a sum of Rs.42,50,000/- out of total consideration of Rs.45,00,000/-. Accordingly, on 07.10.2015 the OP No.1 handed over possession of the flat in question and also the car parking space. The complainants have stated that on several occasions they requested the opposite parties to execute and register the Deed of Conveyance but it turned a deaf ear and in this regard, a legal notice also went in vain. Hence, the complainants have lodged the complaint with prayer for following reliefs, viz. - (a) a direction upon the opposite parties to execute and register the Deed of Conveyance in respect of the flat and car parking space in favour of the complainants as per terms of the Agreement; (b) compensation of Rs.2,00,000/- for harassment and mental agony and (c) litigation cost.
The Opposite Party No.1/developer by filing a written version has stated that he is 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 OP Nos. 3 to 5 he could not execute and register the Deed of Conveyance.
The Opposite Party No.2 i.e. one of the landowners by filing a written version has stated that he is always ready and willing to register the Deed of Conveyance in favour of the purchasers.
The Opposite Party Nos. 3 to 5 being landowners by filing a separate written version have stated that they have no objection in executing the Deed of Conveyance in favour of the complainants in respect of the flat in question subject to fulfilling all the terms and conditions of the Agreement for Sale executed on 14.12.2012.
The contesting parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Besides the same, the parties have relied upon some documentary evidence. At the time of final hearing, brief notes of arguments has been filed on behalf of opposite party nos. 3 to 5.
On perusal of pleadings, evidence on record and having heard the Ld. Advocates appearing for the complainants and opposite party nos. 3 to 5, it emerges that OP Nos. 2 to 5 were the absolute owners of a piece of land measuring about 8 cottahs 2 chittaks and 15 sq. ft. lying and situated at Premises No.16, Ramkrishna Lane, P.S.- Garfa, Kolkata - 700031, Dist - South 24 Parganas within the local limits of Ward No.92 of Kolkata Municipal Corporation (KMC). On 06.12.2012 the OP Nos. 2 to 5 had entered into a Development Agreement with OP No.1/developer for the purpose of development of the said land by raising a G+4 storied building over the said premises. On self-same date, the OP Nos. 2 to 5 have also executed and registered a General Power of Attorney in favour of OP No.1 authorising him to sell the developer's allocation as mentioned in the said registered General Power of Attorney. Thereafter, the opposite party no.1 applied for sanction building plan and obtained the same from the KMC on 20.11.2012.
Pursuant to the authority given by the landowners, the OP No.1 had entered into an agreement with the complainants on 14.12.2012 to sell a self-contained flat measuring about 1100 sq. ft. super built up area being Flat No.A-2 on the 2nd floor and one demarcated car parking space being No. G on the ground floor at Premises No.16, Ramkrishna Lane, P.S.- Garfa, Kolkata - 700031, Dist - South 24 Parganas within the local limits of Ward No.92 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.45,00,000/-. It remains undisputed that the complainants have paid Rs.42,50,000/- out of total consideration of Rs.45,00,000/- to OP No.1 and being satisfied about the consideration amount, OP No.1 delivered possession of the subject flat and car parking space on and from 07.10.2015 and the complainants have taken delivery of possession of the said flat and car parking space on and from 15.10.2015. All these are admitted facts.
Now, the whole dispute cropped up relating to execution and registration of Sale Deed in favour of the complainants.
Ld. Advocate for the complainants has submitted that an inter-se dispute between the landowners and the developer cannot be a ground to deprive a bonafide consumer keeping in view the intent and object behind this social legislation Act. Expanding his submission, Ld. Advocate for the complainants has argued that whatever may be the dispute between the landowners and the developer that can be resolved by way of an independent proceedings but when the complainants have already paid the entire consideration amount, it is statutory obligation on the part of the opposite parties to execute the Sale Deed.
Per contra, Ld. Advocate for OP Nos. 2 & 3 has submitted that as per the clause -6 contained in Article -V of the Development Agreement, the OP No.1 was under obligation to handover the allocation of the landowner prior to delivery of possession to the complainants, particularly, when the General Power of Attorney was revoked on 08.10.2015 by OP Nos. 3 to 5. He has also submitted that the Agreement for Sale dated 14.12.2012 is not registered and is not properly stamped as per provisions of Indian Stamp Act, 1899 as amended by WB Finance Act, 2006 and therefore, the alleged Agreement for Sale cannot be legally enforced.
I have given due consideration to the submission advanced by the Ld. Advocates appearing for the parties and travelled through the pleadings and the evidence on record.
There is no gainsaying that the Act is a legislation for social benefit, meant to protect the interests of consumers and therefore, in order to achieve the objective and purpose of the legislation, while construing the provisions of the Act, a Consumer Forum is expected to adopt a constructive approach and not get bogged down by hyper technicalities of procedure. A Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds. The alleged non-payment of sufficient stamp duty is not at all material for the purpose of determining the question as to whether there was any deficiency in services under Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the submission made by the Ld. Advocate for the complainants regarding the non-registration of the Agreement for Sale cannot be a ground to defeat the right of a consumer.
Now, Clause-6 of Article V (Developer's Obligation) provides - " 6. The Developer shall first hand over possession of Owner's allocation in writing before delivery of physical possession to the buyers of Developer's portion".
The landowners may have genuine grievances against the developer but in any circumstances the right of a purchaser/consumer cannot be defeated keeping in view the broad object behind the enactment of the Act. It is well settled that after accepting the entire consideration amount, it is bounden duty on the part of developer - (a) to deliver possession, (b) to execute Sale Deed and (c) to obtain Completion Certificate from the local authority and until and unless it is done, the developer cannot shirk off his responsibility. In this regard, 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 landowner 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 -
" We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, 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 a 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 landowners and the developer, the same can be settled in an independent proceeding. As per agreement, the landowners had 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 without providing the allocation of the landowners, the developer has sold out or transferred the flat to a purchaser.
Therefore, on evaluation of materials on record and having heard the Ld. Advocates appearing for the respective parties, I am of the view that the complainants are entitled to some reliefs. Considering the facts and circumstances, the complainants are entitled to an order for execution and registration of Deed of Conveyance in favour of them within 30 days from the date of order otherwise they may get the Deed executed through the machinery of this Commission. The complainants are in possession of the property for more than 2½ years and inspite of payment of entire consideration amount have to spend days at the mercy of the OPs for getting the Deed registered in favour of them which causes harassment and mental agony and leading to file this complaint and as such the complainants are entitled to compensation which I assess at Rs.1,00,000/- to be borne by OP No.1 and OP Nos. 3 to 5 in equal share of Rs.50,000/- each. As the situation compelled the complainants to lodge the complaint, they are also entitled to litigation cost which I quantify at Rs.10,000/- to be paid by OP No.1 and OP Nos. 3 to 5 in equal share of Rs.5,000/- each. As OP No.2 did not revoke the Power of Attorney and expressed his willingness to execute the Deed, no liability may be attributed upon OP No.2.
With the above discussion, I dispose of the complaint with the following directions:-
The Opposite Party No.1 and Opposite Party Nos. 2 to 5 are jointly and severally directed to execute and register the Deed of Conveyance in respect of the property as mentioned in the schedule of Agreement for Sale dated 14.12.2012 in favour of the complainants within 30 days from date subject to payment of balance consideration amount otherwise the complainants shall have liberty to get the Deed executed through this Commission;
The Opposite Party No.1 and Opposite Party Nos. 3 to 5 are directed to pay compensation of Rs.1,00,000/- to be borne by OP No.1 and OP Nos. 3 to 5 in equal share of Rs.50,000/- each within 30 days from date;
The Opposite Party No.1 and Opposite Party Nos. 3 to 5 are directed to pay litigation cost of Rs.10,000/- to be paid by OP No.1 and OP Nos. 3 to 5 in equal share of Rs.5,000/- each within 30 days from date;
In the event of failure to comply with the order in payment of compensation and litigation cost, the amount shall carry interest @ 8% p.a. from date till its realisation.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER