w w w . L a w y e r S e r v i c e s . i n



Gopal Saha v/s Anil Roy Chowdhury & Another


Company & Directors' Information:- SAHA (INDIA) PRIVATE LIMITED [Strike Off] CIN = U67120KA1991PTC012267

Company & Directors' Information:- B. ROY CHOWDHURY & CO PVT LTD [Strike Off] CIN = U51909WB1988PTC044053

Company & Directors' Information:- C C SAHA LTD [Active] CIN = U36920WB1933PLC007695

Company & Directors' Information:- B N SAHA CO PVT LTD [Strike Off] CIN = U12000WB1938PTC009498

    Complaint Case No. CC/28/2016

    Decided On, 27 April 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER

    For the Complainant: Dipankar Ghosh , Advocate. For the Opp. Party: H. Bramhachari, Ayan Pal, Advocates.



Judgment Text

The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of an intending purchaser against the developer/builder (opposite party no. 1) and the landowner (opposite party no. 2) in a dispute of housing construction.

In a nutshell, complainant’s case is that on 16.12.2014 the complainant has entered into an agreement with the opposite parties to purchase of a self-contained flat measuring about 600 sq. ft. on the top floor in a G+3 storied building lying and situated at Premises No. 2/1, Rani Branch Road, P.S.- Chitpore, Kolkata – 700002 at a total consideration of Rs. 21,50,000/-. The complainant states that in pursuance of the same, he has paid a sum of Rs. 16,90,000/- to the opposite party no. 1 on diverse dates as part consideration amount towards the total consideration amount. Thereafter, an agreement for sale was executed and registered on 02.03.2015 in the office of A.D.S.R., Sealdah. The complainant alleged that though the opposite parties assured to make delivery by 15.08.2015 on receipt of balance consideration amount but the opposite parties did not take any action. In this regard, all his requests and persuasions including legal notice dated 09.11.2015 went in vain. The complainant has submitted that after obtaining loan from a private financer with an interest @ 10.45% p.a. he intended to purchase the subject flat but all his dream has been shattered. Hence, the complainant has lodged the complaint with prayer for several reliefs, viz.- (a) a direction upon the opposite parties to handover possession after receiving balance consideration amount of Rs. 4,60,000/-; (b) a direction upon the O.Ps to execute the sale deed; (c) a direction upon the O.Ps to pay compensation of Rs. 3,00,000/- and (d) a prayer for litigation costs.

The opposite parties by filing a joint written version has stated that the complaint does not fall under the purview of the Act and should have been filed before a competent Civil Court as many complicated issues of facts are involved. The opposite parties have stated that the flat in question was already complete excepting the sewerage connection with the main drain connection of the K.M.C which will be completed within a short time. However, opposite parties have stated that sometime will be required to connect the drainage line because of official hassles though the opposite parties made payment of the same.

In support of his case, complainant has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by the other side. On behalf of opposite parties, O.P. No. 1 has filed evidence on affidavit. He has also given reply against the questionnaire set forth by the complainant.

On perusal of pleadings and the evidence on record, it has come to surface that O.P. No. 2 is the owner of a piece of land measuring about 02 cottahs 04 chittaks along with standing structure of a two storied building lying and situated at Premises No. 2/1, Rani Branch Road, P.S.- Chitpore, Kolkata – 700002. On 14.08.2013 the landowner has entered into an agreement with the O.P. No. 1 for construction of a G+3 storied building thereon after demolishing the old structure as per sanctioned plan obtained from Kolkata Municipal Corporation.

It remains undisputed that on 16.12.2014 the opposite parties had entered into an agreement with the complainant to sell one self-contained flat measuring about 600 sq. ft. on the top floor in a G+3 storied building lying and situated at Premises No. 2/1, Rani Branch Road, P.S.- Chitpure, Kolkata – 700002 at a total consideration of Rs. 21,50,000/-. It is also not in dispute that the complainant has already paid Rs. 16,90,000/- as part consideration amount towards the total consideration amount. As per terms of the agreement, the opposite parties were under obligation to hand over the subject flat in favour of the complainant by 15.08.2015. The fact remains that the opposite parties have failed to fulfil their part of obligation in honouring the terms and conditions of the agreement. When the complainant was ready and willing to execute the agreement and wrote letter to the opposite parties through their Advocate on 09.11.2015 requesting them to execute the sale deed after accepting the balance consideration amount but the O.P. No. 1/developer in a reply dated 16.11.2015 through his Advocate did not specify whether the subject flat was ready for delivery but took a lame excuse that complainant was under obligation to pay Rs. 1,000/- in the month of July, 2015.

At the time of final hearing, on behalf of O.P. No. 1/developer one application being IA/449/2018 has been filed whereby the O.P. No. 1/developer prays for a direction upon O.P. No.2/landowner to sign and supply the revised plan to enable him to issue Completion Certificate to O.P. No. 1 and the complainant and a further direction to pay residual amount of Rs. 2,80,000/-. The plea taken by O.P. No. 1 is contrary to the joint written version filed by O.P. Nos. 1 & 2. In their written version the opposite parties took a plea that the subject flat was otherwise ready but just sometime will be required to connect the drainage line with sewerage connection.

The statement of O.P. No. 1/developer appears to be based on falsehood. In a question as to whether the flat was completely ready prior to handing over possession to which in answer-5 the O.P. No. 1 replied – ‘Yes, the flat is fully ready for delivery of possession’. Now when the O.P. No. 1 has filed IA/449/2018 with a plea that unless landowner signs the revised plan it would be difficult to obtain Completion Certificate which signifies that the O.P. No. 1 was not only deficient in rendering services but also adopted an unfair trade practice for illegal gains.

Mr. Hiranmoy Brahmachari, Ld. Advocate for O.P. No. 1/developer has placed several documents regarding the complaint made by O.P. No. 2 with the Mayor, Kolkata Municipal Corporation alleging illegal occupation of land etc. The facts and circumstances indicate that a tussle is going on in between the landowner and the developer over the construction of property.

It is well settled that after acceptance of the bulk 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/respondent no.1 cannot shirk off his responsibility, particularly when the complainant is ready and willing to make payment of balance consideration amount of Rs. 4,60,000/- . 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. Similarly, the developer may have grievances against the landowner but for which he may take action against the landowner before a competent Civil Court.

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 on the ground of internal dispute between the developer and the landowner.

The evidence on record clearly suggests that the complainant being a ‘consumer’ as defined in Section 2(1)(d) of the Act hired the services of O.Ps on consideration upon payment and despite receipt of almost 80% of the total consideration amount, the O.Ps were found negligent and deficient as per provisions of Section 2(1)(g) read with Section 2(1)(o) of the Act. Accordingly, the complainant is entitled to some reliefs. Considering the facts and circumstances, in my view, the complainant is entitled to an order of getting delivery of possession and execution/registration of deed of conveyance of the subject flat on payment of balance consideration amount of Rs. 4,60,000/- within 60 days from date. As the O.P. No. 1 has failed to deliver possession within the time framed causing serious mental agony and harassment to the complainant, who obtained loan through a private financer with an interest thereon @ 10.45% p.a. over the amount of Rs. 12,21,240/- (the amount of loan) to fetch the amount of consideration the complainant is entitled to compensation over the amount paid by him from the committed date of possession i.e. from 16.08.2015 @ 10% p.a. over the amount of Rs. 16,90,000/- till the date of delivery of possession. Under compelling circumstances, the complainant had to lodge the complaint for which he is also entitled to litigation cost which I quantify at Rs. 10,000/-.

With the above discussion, I dispose of the complaint with the following directions:

i. The opposite party no. 1 is directed to hand over/deliver possession of ‘B’ Schedule flat as per terms of the agreement to the complainant within 60 days from date subject to paym

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ent of Rs. 4,60,000/- by complainant in favour of opposite party no. 1; ii. The opposite party nos. 1 & 2 are jointly and severely directed to execute and register the deed of conveyance in respect of the property as mentioned in ‘B’ Schedule of agreement for sale dated 16.12.2014 within 30 days from the date of handing over possession by opposite party no. 1; iii. The opposite party no. 1 is directed to pay compensation in the form of interest @ 10% p.a. over the amount of Rs. 16,90,000/- from the committed date i.e. from 16.08.2015 till the date of actual delivery of possession; iv. The opposite party no. 1 is directed to pay litigation cost of Rs. 10,000/- in favour of the complainant; v. The balance amount of Rs. 4,90,000/- payable by the complainant shall be adjusted by opposite party no. 1 with the amount of compensation in terms of the order.The contents IA/449/2018 being not a subject matter of dispute in this complaint lodged by an intending purchaser, in view of decision of Hon’ble Supreme Court in the case of Faqir Chand Gulati (supra), the application is rejected.
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