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Goutam Saha v/s Sona Halder & Others


Company & Directors' Information:- SONA (INDIA) PRIVATE LTD [Active] CIN = U74899DL1980PTC010124

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

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

Company & Directors' Information:- SONA CORPORATION INDIA PRIVATE LIMITED [Active] CIN = U74120DL1980PTC010619

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

    Complaint Case No. CC/325/2016

    Decided On, 30 September 2019

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, MEMBER

    For the Complainant: Dipankar Sen, Subhas Mitra, Advocates. For the Opp. Party: Sanakar Narayan Saha, Advocates.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

The instant complaint under section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of an intending purchaser against the landowners (Opposite Party Nos. 1 and 2) and the developer/builder (Opposite Party No. 3) on the allegation of deficiency of services on the part of Opposite Parties in respect of a flat in a dispute of housing construction.

Succinctly put, complainant’s case is that on 04.11.2010 he entered into an agreement with the Opposite Party No. 3 (developer) being constituted attorney of Opposite Party Nos. 1 and 2 to purchase of a self-contained flat measuring about 1200 sq. ft. super built up area being flat No. 4D on the 4th floor and a stilt car parking space in a building christened ‘Chitra Apartment’ lying and situated at holding No. 121 corresponding to premises No. 121/2, Mordecai Lane, P.S- Dum Dum, Kolkata- 700074, Dist- North 24 Parganas within the local limits of Ward No. 10 of South DumDum Municipality at a total consideration of Rs. 27,00,000/-. The complainant has stated that she has paid the entire consideration amount of Rs. 27,00,000/-. In the agreement it was stipulated that the subject flat will be delivered within the month of June, 2014. The OP No. 3/ builder after completion of construction of the building, handed over the physical possession of the flat question on 28.07.2014. However, despite repeated requests and reminders including the legal notice, the Opposite Parties are not showing any interest to execute the sale deed. Hence, the complainant approach this Commission with prayer for several reliefs, viz- (a) to direct the Opposite Parties to execute and register the deed of conveyance in favour of the complainant, in default of compliance of the said prayer, the deed of conveyance may be executed and registered through the machinery of the commission; (b) compensation of Rs. 1,50,000/- for harassment and mental agony etc.

The Opposite Party Nos. 1 and 2/ landowners by filing a written version have stated that it is the dispute between the developer and the intending purchaser and they are in no way connected with the present dispute. However, on behalf of OP Nos. 1 and 2 it has been stated that after revocation of registered Power of Attorney on 13.12.2010 knowing fully well about the said revocation of Power of Attorney. OP No. 3 took money from the complaint and, therefore, the OP No. 3 is responsible and no liability will be attributed upon them.

The notice issued upon the OP No. 3/ Developer has returned with postal remark ‘not claimed’ and despite having knowledge about the proceedings, the OP No. 3 has neither appeared nor filed written version. Under compulsion, the complaint was heard ex parte against OP No. 3.

Both the contesting Parties have tendered evidence through affidavit. They have also given reply against the questionnaire set forth by their adversaries. Besides the statements made by the Parties through affidavit, they have also relied upon several documents including copy of development agreement, dated 04.12.2002, copy of Power of Attorney dated 04.12.2002, copy of supplementary agreement dated 26.04.2005, copy of agreement for sale dated 04.11.2010 and copy of revocation of registered Power of Attorney dated 13.12.2010 etc.

On the basis of pleadings of the Parties and the evidence on record, it is transpired that OP Nos. 1 and 2 were owners of a piece of land measuring about 7 cottahs 9 chittaks and 25 sq. ft. more or less lying and situated at Mouza – Bagjola being holding No. 121 corresponding to premises No. 121/2, Mordecai Lane, P.S- DumDum, Kolkata- 700074, Dist- North 24 Parganas within the local limits of Ward No. 10 of South DumDum Municipality. The OP Nos. 1 and 2 being owner of the land, in order to develop the same and to raise a multi-storied building thereon entered into a development agreement with Opposite Party No. 3 on 04.12.2002. On the self-same date, the Opposite Party Nos. 1 and 2 had also executed one general Power of Attorney authorising OP No. 3 to deal with the property and to enter into an agreement with the intending buyers in respect of developer’s allocation. Subsequently, on account of change of owners allocation, a supplementary agreement was executed in between the OP Nos. 1 and 2 on the one hand and OP No. 3 on the other hand on 26.04.2005.

Being emboldened with the power conferred upon him by OP Nos. 1 and 2, OP No. 3 on behalf of himself and also being constituted Attorney of OP Nos. 1 and 2 had entered into an agreement for sale with the complainant on 4.11.2010 to sell a flat measuring about 1200 sq. ft super built up area being flat No. 4D on the 4th floor and a stilt car parking space in a building christened ‘Chitra Apartment’ lying and situated at holding No. 121 corresponding to premises No. 121/2, Mordecai Lane, P.S- DumDum, Kolkata- 700074, Dist- North 24 Parganas within the local limits of Ward No. 10 of South DumDum Municipality at a total consideration of Rs. 27,00,000/-. Admittedly, the complaint has paid the entire consideration amount of Rs. 27,00,000/- to OP No. 3. It is also not in dispute that after receipt of entire consideration amount, OP No. 3 has handed over possession of the flat in question in favour of the complainant on 28.07.2014.

However, the materials on record reveals that time and again the complainant requested the Opposite Parties to execute the sale deed but all the request and persuasions including the legal notice went in vain. It is trite law that the parties are bound by the agreement. A person who signs a document contains certain contractual terms is normally bound by them even though he is ignorant of their precise legal effect, in a decision reported in AIR 1996 SC 2508 ( Bharati Knitting Company –vs- DHL World Wide Express Courier Division of Airfreight Ltd) the Hon’ble Supreme Court has observed thus:

“It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F Nariman, Ld. Senior Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit. When a party to the contract disputes the binding nature of the singed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established. The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true, as contended by Mr. M. N. Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy. But each case depends upon it own facts. In an appropriate case where there is an acute dispute of fcts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the clams decided between the parties. But when there is a specific term in the contract, the parties are bound by the terms in the contract.”

It is well settled that after accepting the entire consideration amount as per agreement, the developer is under obligation to- (a) deliver possession, (b) execute and register the Sale Deed and (c) obtain completion certificate/occupancy certificate from the authority concerned. Therefore, by handing over the possession of the subject flat, a developer cannot absolve his responsibility unless he registered the deed of conveyance. Since, the developer has not yet executed the Sale Deed and handed over the completion/ occupancy certificate in accordance with Section 212 of West Bengal Municipal Act, 1993 to the purchaser, the developer cannot shirk off his responsibility. The non-execution of Deed of Conveyance and non-providing an authenticate copy of completion/occupancy certificate by itself indicates deficiency in services on the part of developer.

Ld. Advocate for the OP Nos. 1 and 2 has submitted that despite knowledge about revocation of Power of Attorney dated 13.12.2010 the OP No. 3/developer collected money from the complainant and as such OP No. 3 alone was negligent or deficient in rendering services and no liability will be attributed upon OP Nos. 1 and 2.

Per contra, Ld. Advocate for the complainant drawing our attention to an order passed by the Hon’ble National Commission dated 29.04.2019 in FA/1959/2018 (Sona Halder and another –vs- Sanjeev Jain and another) has contended that the Power of Attorney executed by OP Nos. 1 and 2 in favour of OP No. 3 is not revocable in view of provisions of Section 202 of the Indian Contract Act, as the Power of Attorney executed by them in favour of the developer was for a consideration.

Having heard the Ld. Advocates for the parties, it would appear that the contention of the OP Nos.1and 2 about revocation of Power of Attorney on 13.12.2010 will not alter the situation. The landowners has no locus standi to raise any objection in getting the flat in favour of the complainant from the allocation of the developer. The landowners may have genuine grievances against the developer but for which he 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 –

“......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 landowner 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 the landowner was not a party to the Agreement for Sale executed between the developer and the buyer.

The evidence on record makes it abundantly clear that the complainant being ‘Consumer’ as defined in section 2(1)(d) of the Act at hired the services of OP No.3 on consideration to purchase of a flat and car parking space and it was found that OP No. 3 was deficient in rendering services within the meaning of Section 2 (1)(g) read with Section 2(1)(g) of the Act. The OP Nos. 1 and 2 being landowners cannot escape their liability in view of the provision of Section 226 of the Indian Contract Act, 1872 which provides-

“226. If any contract has entered into through an agent and obligations arising from acts done by an agent, may be enforced in the same manner and will have the same legal consequence, as if the contracts had been entered into and the acts done by the principal in person.”

Considering the materials on record, we are of the opinion that an order directing the Opposite Parties jointly and severally to execute and register the Sale Deed in respect of ‘B’ Schedule property as mentioned in the agreement for sale dated 04.11.2010 alternatively to get the Deed executed through the machinery of the commission wil

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l serve the purpose. However, the conduct and attitude of OP No. 3 being harassing in nature which causes immense trouble to the complainant, we think OP No. 3 must be saddled with compensation which we assess at Rs. 50,000/-. The apathy on the part of the developer led the complainant to lodge the complaint for which the complainant is entitled to litigation costs which we quantify at Rs. 10,000/-. In view of the above, the complaint is allowed on contest against Opposite Party Nos. 1 and 2 and ex parte against Opposite Party No. 3 with the following directions: I. The Opposite Parties are jointly and severally directed to execute and register the Deed of Conveyance in respect of the flat and stilt car parking space as mentioned in Schedule ‘B’ to the Agreement for Sale dated 4.11.2010 in favour of the complainant within 60 days from date, in default, complainant may get the Deed executed through the machinery of the commission; II. The Opposite Party No. 3 is directed to pay compensation of Rs. 50,000/- in favour of the Complainant within 30 days from date, in default, the amount shall carry simple interest @ 8% p.a. from this date to its realisation. III. The Opposite Party No. 3 is directed to pay Rs. 10,000/- to the complainant as costs of litigation.
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