State Consumer Disputes Redressal Commission
Smt. Chhabi Rani Ghosh vs Mr. Subhas Chandra Koley on 31 May, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/201/2014 (Arisen out of Order Dated 15/01/2014 in Case No. Complaint Case No. CC/130/2013 of District Howrah) 1. Smt. Chhabi Rani Ghosh W/o Late Indrajit Ghosh, 2, Kedarnath Mukherjee Lane, P.S. Bantra, Dist.Howrah, Lions Apartment, Flat No.13/4, 3rd Floor, 174/5, Netaji Subhas Chandra Bose, P.S. Jadavpur, Kolkata-700 040. 2. Indranil Ghosh S/o Late Indrajit Ghosh, 2, Kedarnath Mukherjee Lane, P.S. Bantra, Dist.Howrah, Lions Apartment, Flat No.13/4, 3rd Floor, 174/5, Netaji Subhas Chandra Bose, P.S. Jadavpur, Kolkata-700 040. ...........Appellant(s) Versus 1. Mr. Subhas Chandra Koley S/o Banamali Koley, 2/2, Kedarnath Mukherjee Lane, P.S. Bantra, Dist. Howrah. 2. M/s Utthan, A proprietorship concern Represented by Sole Proprietorship Sri Dipankar Majhi, 12, Panchanan Chatterjee Lane, P.S.Bantra, Dist. Howrah. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Amit Pachal, Advocate For the Respondent: Mr. Chandra Sekhar Sinha, Advocate ORDER
31/05/16 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT These Appeals having identical facts were heard analogously. The Appeals, namely, FA 201 of 2014 arising out of CC 130 of 2013, FA 202 of 2014 arising out of CC 129 of 2013, FA 203 of 2014 arising out of CC 179 of 2013, FA 204 of 2014 arising out of CC 141 of 2013 and FA 205 of 2014 arising out of CC 131 of 2013 are directed against the judgment and order passed by the Learned District Forum, Howrah whereby the complaints were allowed with the direction upon the OPs to execute and register the deed of conveyance in favour of the Complainant, to pay compensation and litigation cost. The Appeals have been preferred by the Land Owners/OPs of the complaint. The Developer/Respondent did not appear and contest the Appeals.
The case of the Complainant/Respondent in each Appeal is that OP Nos.1 and 2 are the Land Owners and OP No.3 is the Developer. There was development agreement dated 24/11/09 between the Land Owners and the Developer followed by registered power of attorney dated 24/11/09 executed by the Land Owners in favour of the Developer. The Complainant in each case entered into an agreement with the OPs for the purchase of flat and the consideration money was paid. Possession was delivered, but the registration of the deed of conveyance has not been executed by the OPs in favour of the Complainants. For the said reasons, the complaints were filed before the Learned District Forum.
The Learned Counsel for the Appellants/Land Owners has submitted that the Land Owners entered into the development agreement with the Developer who agreed to pay Rs.46 lakh, but the Developer paid nothing. It is contended that it was noted in the development agreement that the sum of Rs.9 lakh was paid, but the cheque thereof was dishonoured and the criminal case was instituted against the Developer. It is submitted that all the points were mentioned before the Learned District Forum, but those were not considered. It is contended that the construction has not been completed. It is contended that the Developer after receiving money from the intending Purchasers ought to have deposited the amount in the account of the Land Owners, but they did not comply.
The Learned Counsel for the Respondents/Complainants has submitted that the consideration amount was paid and the possession was delivered, but the registration of the deed of conveyance has not yet been made in all the Appeals. It is contended that the OP Nos.1 and 2 of the complaint revoked the power of attorney which was earlier executed in favour of OP No.3. It is submitted that in FA No.203 of 2014 the balance amount is Rs.4,000/- which the Complainant is to pay to the Developer and the Learned District Forum has also directed execution and registration of the deed of conveyance on payment of the balance amount of consideration money in CC 179 of 2013. The Learned Counsel for the Respondents/Complainants has submitted that because of the dispute between the Land Owners and the Developer the Complainants/Consumers cannot be made to suffer. In this connection reference has been made to the decision of this Commission reported in (2009) 1 WBLR (CPSC) 1094 [Sri Birendra Nath Dey vs. Dr. Sanjoy Sanyal & Ors.]; (2012) 1 WBLR (CPSC) 653 [Mrs. Sumona Bagchi (Bhattacharya) & Anr. vs. Ratnakar Properties Pvt. Ltd. & Ors.]. The Learned Counsel has also referred to the decision reported in (2012) 4 WBLR (CPNC) 905 [Basudev Banerjee & Anr. vs. Amlan Bhattacharya & Ors.]; IV (2005) CPJ 53 (NC) [Rameswaran & Ors. vs. Sujit Kumar Banerjee & Ors.]; 2010 (2) CPR 1 (NC) [G.I. Narasimham vs. B.S. Venkateswarulu & Anr.].
We have heard the submission made by both sides and perused the papers on record. In the decision reported in FA 524 of 2012 (NC) decided on 15/05/13 [Sri Subhrajit Das Vs. M/s Vindhya Project Pvt. Ltd. & Ors.] it has been held that the complaint could not be dismissed only because of the pendency of the suit between the Developer and the Land Owner. In the case of G.I. Narasimham (supra) it has been held by the Hon'ble National Commission that a consumer cannot be made to suffer because of dispute between the builder and the owner of the property. In the present Appeals it is the contention of the Appellants/Land Owners that the amount as mentioned in the development agreement has not been paid by the Developer. Relying on the aforesaid decisions, we are of the considered view that the Complainants being the bonafide Purchasers for value cannot be made to suffer because of any dispute between the Land Owners and the Developer.
It is the contention of the Appellants that the power of attorney has been revoked. On this point it has been held by the Hon'ble National Commission in the decision reported in 2013 (2) CCC 402 (NS) [Poonam Chambers 'B' Commercial Premises Co-op Society Ltd. Vs. Aluplex India Pvt. Ltd. & Anr.] that the Complainant is entitled to file claim on account of deficiency in service even after termination of contract and merely by termination of working contract it cannot be inferred that there was no relationship of consumer and service provider between parties and the Complainant is entitled to get relief from the Consumer Fora. We are of the considered view that in the present Appeals there was development agreement between the Land Owners and the Developer followed by registered power of attorney in favour of the Developer and the Complainants being the bonafide Purchasers for value entered into agreement for sale with the OPs of the complaint for purchase of flats.
Having heard both sides and on perusal of the papers on record, we are of the considered view that the Learned District Forum was justified in allowing the complaint cases.
The Appeals are dismissed. The impugned judgments in the complaint cases under these Appeals are affirmed. This judgment will govern all the Appeals as stated above. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER