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



Mandira 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:- K K SAHA AND CO PVT LTD [Strike Off] CIN = U51109WB1938PTC009499

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

    Complaint Case No. CC/248/2016

    Decided On, 01 October 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

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

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



Judgment Text

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

Succinctly put, complainant’s case is that on 09.10.2010 she entered into an agreement with the Opposite Party No.3/developer and also constituted Attorney of OP Nos. 1 & 2 to purchase of a flat measuring about 1140 sq. ft. super built up area being Flat No.4B on the 4th floor and one covered car parking space measuring about 150 sq. ft. more or less on the ground floor at Premises No. 121/2 (Old No.13), Mordecai Lane, P.S.- Dum Dum, Kolkata – 700074, Dist- North 24 Parganas within the local limits of South Dum Dum Municipality at a total consideration of Rs.25,00,000/-. The complainant has stated that she has paid the entire consideration amount of Rs.25,00,000/-. In the Agreement, it was stipulated that the subject flat and car parking space will be delivered within the month of September, 2014. The OP No.3/builder after completion of construction, handed over physical possession of the flat and car parking space to the complainant on 10.06.2014. However, despite repeated requests and reminders, the opposite parties are not showing any interest to execute the Sale Deed. Hence, the complainant approached this Commission with prayer for several reliefs, viz. – (a) a direction upon the opposite parties to execute and register the Deed of Conveyance in default through the machinery of the Commission; (b) compensation of Rs.1,50,000/- etc.

The OP Nos. 1 & 2/landowners by filing written version has stated that it is the dispute between the complainant and OP No.3 and they are not in no way associated with the present dispute.

The notice issued upon OP No.3 has returned with postal remark ‘not claimed’ and despite opportunity, OP No.3 has neither appeared nor filed written version.

In support of her case, complainant has tendered evidence through affidavit. She has also given reply against the questionnaire set forth by the OP Nos. 1 & 2. On behalf of OP Nos. 1 & 2, Sri Sona Halder, OP No.1 has filed evidence on affidavit. The OP No.1 has also filed reply against the questionnaires put forward by the complainant. Besides the same, the parties have relied upon several documents including the Agreement for Sale dated 09.10.2010.

I have scrutinised the pleadings, evidence on record including the documents. I have also considered the submission advanced by the Ld. Advocates appearing for the complainant and OP Nos. 1 & 2.

The pleadings of the parties and the evidence on record make it quite clear that OP Nos. 1 & 2 were the owners of a piece of land measuring about 7 cottahs 9 chittaks and 21 sq. ft. more or less lying and situated at Mouza – Bagjola being Holding No.121 (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 Dum Dum Municipality. The OP Nos. 1 & 2 in order to develop the said land and to raise a multi-storied building entered into a Development Agreement with OP No.3 on 04.12.2002. Subsequently, on account of change of owner’s allocation, a supplementary agreement was executed in between OP Nos. 1 & 2 on the one hand and OP No.3 on the other hand on 26.04.2005. On the date of execution of Development Agreement i.e. on 04.12.2002, the OP Nos. 1 & 2 also executed a General Power of Attorney in favour of OP No.3 empowering him to deal with the property and to enter into agreement for sale with the intending buyers from the developer’s allocation.

By dint of the power conferred upon him by OP Nos. 1 & 2, the OP No.3 on behalf of himself and also as constituted Attorney of OP Nos. 1 & 2 had entered into an Agreement for Sale with the complainant on 09.10.2010 to sell of a flat measuring about 1140 sq. ft. super built up area being Flat No.4B on the 4th floor and one covered car parking space, measuring about 150 sq. ft. more or less on the ground floor at Premises No. 121/2 (Old No.13), Mordecai Lane, P.S.- Dum Dum, Kolkata – 700074, Dist- North 24 Parganas within the local limits of Ward No.10 of South Dum Dum Municipality at a total consideration of Rs.25,00,000/-. The Memo of consideration of Agreement for Sale and the money receipt dated 04.06.2014 clearly indicates that the complainant has paid the entire consideration amount of Rs.25,00,000/- to OP No.3. The complainant, thereafter, has made several correspondences and communications with the opposite parties to get the deed registered in favour of her but all her attempts and persuasions went in vain. In fact, the OP No.3 was under obligation to hand over the subject flat and car parking space to the complainant within the month of September, 2014 but the developer has failed to keep his promise. However, on payment of entire consideration amount, the OP No.3 handed over the possession of the flat and the car parking space to the complainant on 10.06.2014.

It is trite law that the parties are bound by the agreement. A person who signs a document contain 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 Worldwide 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 signed 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 facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims 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 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 and car parking space, a developer cannot absolve his responsibility. 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.

The evidence on record makes it abundantly clear that the complainant being a ‘consumer’ as defined in Section 2(1)(d)(ii) of the Act hired the services of OP No. 3 on consideration to purchase a flat and car parking space but it was found that the OP No.3 was deficient in rendering services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. The OP Nos. 1 & 2 being landowners cannot escape their liability in view of the provision of Section 226 of the Indian Contract Act, 1872which provides – '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'. However, in the instant case, the liability of the landowners/OP Nos. 1 & 2 is limited only to the extent of execution of Sale Deed.

Considering the materials on record, I am of the view that an order directing the opposite parties to execute and register the Sale Deed alternatively to get the Deed executed through the machinery of the Commission will serve the purpose. However, the conduct and attitude of the OP No.3/developer being harassing in nature which causes immense trouble to the complainant, I think the OP No.3 must be sad

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dled with compensation which I assess at Rs.1,00,000/-. The apathy on the part of developer led the complainant to lodge the complaint for which the complainant is entitled to litigation cost which I quantify at Rs.10,000/-. Consequently, the complaint is allowed on contest without cost against OP Nos. 1 & 2 but ex-parte against OP No.3 with cost of Rs.10,000/-. The Opposite Parties are jointly and severally directed to execute the Deed of Conveyance in respect of the flat and the car parking space as mentioned in Schedule ‘B’ to the Agreement for Sale dated 09.10.2010 in favour of the complainant within 30 days from date otherwise the complainant shall have liberty to get the Deed executed through the machinery of this Commission. The OP No.3 is further directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- aggregating of Rs.1,10,000/- within 30 days from the date in default the amount shall carry interest @ 8% p.a. from date till its realisation.
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