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M/s. Deb Construction Represented By Its Proprietress Sharmila Mondal, West Bengal v/s Sukumar Paul & Others

    Revision Petition No. 256 of 2016

    Decided On, 14 June 2022

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE DR. S.M. KANTIKAR
    By, MEMBER

    For the Petitioner: Vineet Kothari, Advocate. For the Respondents: R1, Anjon Kumar Dutta, Arun Kumar Mahapatra, R2 & R3, Sailja Kothari, Advocates.



Judgment Text

R.K. Agrawal, J., President

1. This Revision Petition has been filed by Deb Construction, Opposite Party No.1 in the Complaint (hereinafter referred to as the Developer), against the Order dated 02.12.2015, passed by the West Bengal State Consumer Disputes Redressal Commission at Kolkata (hereinafter referred to as the State Commission) in First Appeal No. A/1321/2014. By the Impugned Order, while affirming the Order dated 30.10.2014, passed by the District Consumer Disputes Redressal Commission, South 24 Parganas at Alipore, Kolkata (hereinafter referred to as the District Commission) in Consumer Complaint No. 189 of 2014, preferred by the Complainant/Respondent No.1 herein, the State Commission has dismissed the Appeal, preferred by the Developer, with costs of Rs.10,000/- to be paid by the Developer to the Complainant/Respondent No.1.

2. While proceeding ex-parte against Opposite Parties No. 2 and 3, who are Respondents No. 2 and 3 respectively in the present Revision Petition, the District Commission had allowed the Complaint, preferred by the Complainant/Respondent No.1 herein, and directed the Opposite Parties, including the Developer, to execute and register the Conveyance Deed in respect of the property in question as per the Agreement and deliver possession within one month from the date of the Order, failing which the Complainant/Respondent No.1 was given liberty to initiate the Execution proceedings in accordance with law. Further, the Developer was also directed to pay a sum of Rs.3,000/- per month towards rental charge from the date of delivery of possession of tenanted portion till handing over of the flat in question and a sum of Rs.50,000/- towards harassment and mental agony and Rs.10,000/- as litigation costs. The said amounts were directed to be paid within one month, failing which the Developer was directed to pay penalty @ Rs.100/- per diem.

3. The brief facts as culled out from the Complaint are that Opposite Parties/Respondents No. 2 and 3 were Owners of the land situated at Premises No. 127/1, B.B. Chatterjee Road, Police Station Kasba, Kolkata, and the Complainant/Respondent No.1 was their Tenant in respect of two rooms, with kitchen etc. On 21.05.2005 Opposite Parties/Respondents No. 2 and 3 entered into a Development Agreement with the Developer, according to which a multi-storey building was to be built on the said land. Then on 23.06.2007 an Agreement was entered into between the Developer and the Complainant/Respondent No.1 on certain terms and conditions. Inter alia, a residential flat free from all encumbrances, admeasuring 805 sq. ft. covered area, to be built in the building on the land, was to be given to the Complainant/Respondent No.1. The flat in complete and habitable condition was to be handed over to the Complainant/Respondent No.1 and Conveyance Deed was to be executed/registered within 18 months from the date of getting the plans sanctioned from the Kolkata Municipal Corporation. In view of the said Agreement, the Complainant/Respondent No.1 was to vacate the tenanted portion by 27.06.2007. In terms of the Agreement dated 23.06.2007, the Complainant/Respondent No.1 paid a sum of Rs.25,000/- as advance money vide Pay Order dated 23.06.2007; vacated the tenanted portion on 27.06.2007; handed over the possession of the same to the Developer; and shifted to an alternate accommodation. After completion of the third floor, the Complainant/Respondent No.1 requested the Developer for giving possession of the flat in question and execute the Conveyance Deed but all in vain. It is averred that the Developer was liable to pay and bear expenses for alternate accommodation till delivery of possession but it did not pay any amount to the Complainant/Respondent No.1 therefor. The total amount spent by the Complainant/Respondent No.1 towards rent, licence fee, brokerage, shifting etc. was stated to be Rs.3,30,650/-. It is also stated that due to harassment caused by the Developer, the Complainant/Respondent No.1 suffered a heart attack on 20.04.2012 and was under medical treatment since then. The Complainant/Respondent No.1 got issued a letter dated 30.05.2013 through his Advocate to the Developer for execution of the conveyance deed but there was no response to it. In the said background, the Complainant/Respondent No.1 filed the afore-noted Complaint before the District Commission, praying for the directions to the Opposite Parties, including the Developer, to (i) execute and register the Conveyance Deed of the flat in question; (ii) handover and deliver possession; (iii) pay Rs.3,000/- per month as per the Agreement; (iv) pay Rs.3,30,650/- spent by the Complainant/Respondent No.1 towards rent etc.; (v) pay Rs.1,00,000/- as compensation for causing harassment and mental agony; (vi) pay interest on the incurred costs; and (vii) costs of the case.

4. Upon notice, while the Developer contested the Complaint by filing its Written Version, Opposite Parties/Respondents No. 2 and 3 herein did not file any Reply. On behalf of the Developer, it was stated in the Written Version that on 23.06.2007 an Agreement was entered into between the Parties. It was agreed that after completion of four-storey building, entire third floor of the newly constructed building, admeasuring 805 sq. ft. covered area, would be handed over to the Complainant/Respondent No.1. As per the terms of the Agreement dated 23.06.2007, the Complainant/Respondent No.1 did not vacate the tenanted portion before 27.06.2007 and vacated the same after three months, on account of which the Developer suffered huge loss of money. The Developer had paid rent to the Complainant/Respondent No.1, who had taken rent of Rs.3300/- per month and thereafter Rs.3500/- per month in respect of different accommodations where he was residing. As regards the letter dated 30.05.2013 sent by the Complainant/Respondent No.1 through an Advocate to the Developer, it was stated by the Developer that it was a Developer and the Owners had executed a power of attorney in favour of one Aloke Mondal, on account of which it had no locus to enter into any Agreement with any person and, therefore, the Complainant/Respondent No.1 could not make any claim on the strength of the said Agreement.

5. On appreciation of the evidence adduced by the contesting parties before it, as noted above, the District Commission allowed the Complaint and issued the aforesaid directions. The District Commission negated the objection raised by the Developer that the Complaint was barred by limitation and held that there was a valid Agreement between the Parties regarding sale of the property in question and the Developer had also received advance amount of Rs.25,000/- from the Complainant/Respondent No.1 out of the total consideration money as mentioned in the Agreement. However, the Deed of Conveyance had not been executed and registered and, therefore, the cause of action continued.

6. Aggrieved with the order passed by the District Commission, the Developer carried the matter further in Appeal to the State Commission, inter alia stating that the Complaint was barred by limitation; after expiry of 18 months the Agreement executed between the Parties and the Complainant/Respondent rescinded and the Complainant/Respondent No.1 became a Tenant of the Landlords (Opposite Parties/Respondents No. 2 and 3 herein); in view of Section 12A of the West Bengal (Regulation of Promotion of Construction and Transferring by Promoters) Act, 1993 and the Developer being a Promoter the Complaint was not maintainable, and lastly the Agreement executed between the Parties was unregistered one. However, for the reasons recorded in the Impugned Order, the said pleas did not find any favour with the State Commission and consequently the State Commission on the strength of various authorities of this Commission and the Hon’ble Supreme Court dismissed the Appeal, preferred by the Developer. Hence, the present Revision Petition by the Developer.

7. We have heard learned Counsel for the Parties and gone through the material on record, including the Agreement dated 23.06.2007 executed between the Developer and the Complainant/Respondent No.1.

8. Learned Counsel for the Developer reiterated the pleas to the effect that the Agreement executed between the Parties on 23.06.2007 was unregistered one and had no legal status and no Order could be passed on the basis of the same, the Complaint filed by the Complainant/Respondent No.1 before the District Commission was barred by limitation, as it had been filed on 25.04.2014, and, therefore, the State Commission ought to have set aside the Order passed by the District Commission. The Complainant/Respondent No.1 was merely a Tenant and further the District Commission had not quantified the amount to be paid by him. The building was completed in the year 2009 and the Developer had delivered the possession of the building to the Owners in the year 2009 itself and, therefore, there was no deficiency in service on its part.

9. The learned Counsel for the Complainant/Respondent No.1 justified the Orders passed by the State Commission and the District Commission and stated that the Revision Petition deserves to be dismissed.

10. It is not in dispute that the Agreement dated 23.06.2007 was entered into between the Developer and the Complainant/Respondent No.1, having certain terms and conditions. As per the same, while the Complainant/Respondent No.1 was obliged to vacate the tenanted premises by 27.06.2007 and pay advance amount of Rs.25,000/- to the Developer as part consideration out of the sale consideration as stated in the Agreement, the Developer was obliged to construct the building, sale or allot the flat in question out of its allocation and handover the same in complete and habitable condition and execute/register the Deed of Conveyance in favour of the Complainant/Respondent No.1 within 18 months from the date of getting plans sanctioned from the Kolkata Municipal Corporation. While the Complainant/Respondent No.1 vacated the tenanted premises though with a delay of three months, as stated by the Developer, and paid the aforesaid advance amount to the Developer, the Developer failed to handover possession and execute/register the Deed of Conveyance in favour of the Complainant/Respondent No.1 and took aforesaid pleas. While all the pleas taken by the Developer have amply been dealt with by the Fora below, we are of the opinion that the Developer cannot blow hot and cold in the same breath. In terms of the Agreement executed between both the Parties, while at one place the Developer gets the possession of the tenanted premises occupied by the Complainant/Respondent No.1 for constructing the proposed building as also receives part consideration from him out of the agreed sale consideration of the flat to be allotted/sold to him in terms of the said Agreement, on the other hand it is stated on its behalf that the Agreement was unregistered one and stood rescinded after 18 months and the Complainant/Respondent No.1 was only a Tenant of the Land Owners. In fact, the non-allotment/sale of the flat in question to the Complainant/Respondent No.1 within the agreed period of 18 months was a lapse on the part of the

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Developer and it cannot take advantage of its own wrong. As far as the plea of the Developer taken in the Written Version that the Owners of the land had executed a power of attorney in favour of one Aloke Mondal, on account of which it had no locus to enter into any Agreement with any person and, therefore, the Complainant/Respondent No.1 cannot claim any relief on the strength of the Agreement executed between the Parties, is concerned, we find that the said Aloke Mondal is nothing else but the husband of the Proprietress of the Developer, as stated in the parties’ description in the Agreement executed between the Parties and the Appeal filed before the State Commission. In this view of the matter, it seems that the Developer is in collusion with the Land Owners and said Aloke Mondal and in any way wants to frustrate the Agreement executed between it and the Complainant/Respondent No.1. 11. In view of the foregoing discussion, we are of the opinion that the State Commission and the District Commission have rightly allowed the Complaint, preferred by the Complainant/Respondent No.1. The Revision Petition lacks merit and is accordingly dismissed with costs of Rs.10,000/- to be paid by the Developer to the Complainant/Respondent No.1.
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