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



Paramita Saha (Nandi) v/s Birangshu Narayan Dash Sharma & Others


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

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

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

    First Appeal No. A/543/2017

    Decided On, 30 July 2018

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. JUSTICE ISHAN CHANDRA DAS
    By, PRESIDENT & THE HONOURABLE MR. TARAPADA GANGOPADHYAY
    By, MEMBER

    For the Appellant: Barun Prasad, Subrata Mondal, Sovanlal Bera, Advocates. For the Respondent: Surath Chakraborty, Advocate.



Judgment Text

Ishan Chandra Das, President

This appeal under section 15 of the Consumer Protection Act, was filed against the judgment and order dated 24-04-2017 passed by Ld. DCDRF, Murshidabad at Berhampore in CC/120/2015 where Ld. Forum concerned while disposing of the complaint case allowed the same on contest, directed the complainant to pay the balance consideration of Rs. 1,00,000/- (Rupees one lakh) to the OPs within two months from the date of receiving of the order, directed the OPs to deliver the possession of the flat in favour of the complainant and to execute and register the deed of conveyance in favour of the complainant within two months from the said date i.d. the OPs shall pay a fine of Rs. 50/- per day for per days delay and the amount so accumulated shall be deposited before the Consumer Legal Aid Account.

Being aggrieved by such judgment and order, the present appeal has been preferred by the complainant who prayed for further direction upon the respondents/OPs to install lift, complete the unfinished work of the building and to hand over completion certificate on delivery of possession and execution of the deed of conveyance and other consequential reliefs.

Briefly stated, the case of the complainant/appellant (and hereinafter referred to as the complainant) was that the OPs/respondents (hereinafter referred to as the OPs) no. 1, 2 and 4 were the land owners of plot no. 932/1095, measuring 0.10 acres of Mouza – Garh Berhampore, P.S. Berhampore Town within Berhampore Municipality. The OPs no. 1 and 2 are the land owners and they along with the OP no. 3 became a partner of a firm viz. 'Creative Construction' for carrying on a business of development of land by construction of multistoried buildings. The OPs no. 1 and 2 being the land owners as well as developers and the OP no. 4 being land owner only entered into a joint venture agreement with the OP no. 3 by a deed of agreement dated 11-01-2010. The OPs no. 1, 2 and 4 being the land owners entered into a joint venture agreement with the OP no. 3/Developer under certain terms and conditions, incorporated in the said joint venture of agreement and it was agreed between the parties that the OPs no. 1 – 3 would be the Developers who would be interested by the land owners to develop the said land by raising construction of a six storied building, consisting of several flats and garages, at their own cost and expenses and the Developer shall exclusively be entitled to exploit the proposed building to be erected on the land with exclusive right to transfer. It has been further agreed upon that the Developers namely the OPs no. 1 – 3 shall be at liberty to procure buyers for sale of the said flats and shall have the right to the agreement for sale to the intending purchasers in respect of the flat and receiving earnest money and the land owners would convey all rights of ownership to the intending purchasers of the flats situated, in the said six storied building and the OPs no. 1 and 2 shall convey their ownership as confirming party of such deed of conveyance in the capacity of Developer as well as the land owners. In terms of such agreement and being empowered accordingly, the OPs no. 1-3 made advertisement for sale of the flat erected on the land as per schedule of the petition of complaint. The complainant was an intending purchaser of a flat of the six storied building and accordingly a deed of Agreement for Sale was executed by and between the complainant and the OPs on 12-02-2013 for a consideration of Rs. 17,85,000/- (Rupees seventeen lakh eighty five thousand) and at the time for booking the complainant paid a sum of Rs. 5,00,000/- (Rupees five lakh) to the OPs as earnest money out of total consideration on the self same date and the OPs no. 1-3 accordingly received the said amount of Rs. 5,00,000/- (Rupees five lakh) with endorsement. The complainant from time to time paid a sum of Rs. 16,22,000/- (Rupees sixteen lakh twenty two thousand) including Rs. 5,00,000/- (Rupees five lakh) only paid of all such payment were made by the complainant by A/c payee cheques in favour of the firm viz. 'Creative Construction' and the OPs no. 1-3 encashed those cheques. The complainant while taking over the said flat found that the said flat including common portion of the building was not finished rather it has not been completed, lift has not been installed, the electrical installation fitting, wiring have not been done, flooring of toilet, common places, stair case, colouring and painting of the outdoor surface of the building and the windows, entrance gate are left incomplete. As per the deed of Agreement for Sale dated 12-02-2013 the OPs, land owners/Developers respectively agreed to deliver possession of the flat in a habitable condition and incomplete in all respects to the complainants on 30-12-2014. After the expiry of the stipulated period of delivery of possession of the flat in question, the complainant requested the OPs to execute all other works indicated above and left incomplete and on request of the complainant, the OPs did not respond for which the complainant had to serve legal notice upon the OPs asking them to execute and register the deed of conveyance in respect of the flat in question in favour of the complainant and to finish all other works, as referred to earlier in respect of the building as well as the flat in question but the OPs on receipt of the said notice stated in their letter dated 05-02-2015 that they were ready and willing to register the deed of sale in respect of the said flat in favour of the complainant on receipt of balance consideration from the complainant but in fact, they were not ready and willing to perform their part of contract arising out of the said agreement dated 12-02-2013 though they expressed their desire to complete the flat for delivery after making the same fit for habitation and that was communicated by their reply dated 05-02-2015. The complainant by her letter dated 19-03-2015 again drew the attention to the OPs to complete the flat as well as the building and to do all necessary works including execution and registration of the deed of conveyance but no result yielded and that left no alternative before the complainant but to take recourse of the DCDRF concerned claiming reliefs in terms of the petition of complaint.

A written version was filed on behalf of the OPs no. 1, 2 and 3 where it was contended that the complaint case was not maintainable and the same was hit by law of limitation and the relevant provisions of the Consumer Protection Act. Denying the cause of action as averred in the body of the petition of complaint, the OPs claimed that they agreed to deliver possession of the flat within 30-12-2014 and denied that they were never ready to deliver the possession of the flat in complete condition. It was the positive defence of the OPs that the OPs no. 1, 2 and 4 with the help of the Developer 'Creative Construction' constructed a G + 5 storied building consisting of several flats. Admitting the factum of agreement with the complainant, the OPs stated that as per agreement the complainant was duty bound to pay the price of the flat within the stipulated period and the OPs denied allegations that they were not ready and willing to give relief to the complainant as per agreed terms and conditions. In the said written version they also contended that they were always ready to install lift in the building and to complete other incomplete works.

Here the factual aspects of the matter between the parties are not disputed. In course of hearing it was brought to our notice by Ld. Advocate for the respondents that a Suit for Partition between the owners of the plot in question has been filed against the present respondents and others at the instance of the other co-sharers of the said plot and in that proceeding being PS 417 of 2014 an order of injunction was passed by Ld. Civil Judge (Senior Division) at Berhampore, Murshidabad whereby the respondent no. 1-3 were asked temporarily to demolish the two storied house located in the western side of the plot bearing no. 932/1095 and to construct flat thereupon by changing its nature and character till disposal of the suit and not to create disturbances in the possession of the plaintiffs till disposal of the suit and the matter was disposed before Civil Judge (Senior Division) upon contested hearing of the parties. Ld. Advocate for the appellant in course of hearing drew our attention to the facts of the case, as indicated above and with reference to the decision of the Hon’ble National Commission in Smt. V. Kamala and others vs. K. Rajiv represented by his GPA holder, K.V. Babji and others, reported in 2014(3) CPR 91 (NC) pointed out that 'an inter-se dispute between owners cannot be permitted to be used as a ploy to wriggle out of obligations under Agreements and leave buyer in lurch'. But in the instant case the land in question where the development work is going on was not belonging into the land owners absolutely and other owners are left out in the Agreement for Sale in between the complainant and the OPs. Since there is an order of injunction passed by regular Civil Court it wou

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ld be prudent for the complainant to wait till disposal of the Partition Suit due the fact that a restraining order of injunction was passed against the OPs/Developers and in such a situation we cannot direct a party to the suit to construct over the plot or to cause repair of the building or install a lift in contravention of the order of injunction. Hence, placing reliance on a decision of the Hon’ble National Commission in Yashwant Rama Jadav Vs. Shankat Hussain Shaikh and anothers in F.A. 1229/2017 coupled with the decision in M/s Novous Abasan Pvt. Ltd. Vs. Dakshineswar Saptorshi Society Welfare and another, reported in 2014 (4) CPR 357, (NC), we set aside the judgment and order impugned and remit the case to Ld. DCDRF for fresh decision after disposal of the suit for partition (being P.S. 417/2014) pending before Ld. Civil Judge (Senior Division) at Bherhampur, Murshidabad, for avoiding further complications and multiplicity of proceedings. Parties do bear their respective costs of Appeal.
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