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Tapan Sen v/s M/s. Bibek Chatterjee & Others

    First Appeal No. A/118/2017
    Decided On, 08 March 2018
    At, West Bengal State Consumer Disputes Redressal Commission Kolkata
    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING
    By, MEMBER
    For the Appellant: Souvik Chatterjee, Minansu Bhadra, Advocates. For the Respondent: Subhajit Dutta, sanjoy Kr. Ghosh, Advocate.


Judgment Text
The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Final Order/Judgement dated 30.12.2016 passed by the District Consumer Disputes Redressal Forum, Kolkata, Unit-III (in short, Ld. District Forum) in Consumer Complaint No. 211/2016 whereby the complaint lodged by the Appellant Sri Tapan Sen under Section 12 of the Act was dismissed on contest.

The Appellant herein being Complainant lodged the complaint asserting that on 05.09.2006 he entered into an agreement with the Opposite Party No.1/developer to purchase of a residential flat measuring about 1050 sq. ft. on the 2nd floor at Premises No.169A, Lake Gardens, P.S.- Lake, Kolkata – 700045 at a consideration of Rs.12,00,000/-. The Complainant has stated that he has already paid a total consideration of Rs.14,10,000/- and the OPs have acknowledged the same and issued money receipts to that effect. The complainant has stated that he intimated the opposite parties time to time to execute the Deed of Conveyance and lastly on 07.05.2016 but it turned a deaf ear. Hence, the appellant approached the Ld. District Forum with prayer for a direction upon the opposite parties to execute registered Sale Deed in favour of him, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.

The Respondent No.1/builder being OP No.1 by filing written version has stated that OP Nos. 2 & 3 never executed registered General Power of Attorney in favour of him and as such he is unable to execute the Deed of Conveyance. The OP No.1 has also stated that the size of the flat was enhanced to 1330 sq. ft. for which he is entitled to Rs.5,60,000/- and for extra work of Rs.2,00,000/- i.e. Rs.7,60,000/-.

The Respondent Nos. 2 to 4/landowners being OP Nos. 2 to 4 by filing a separate written version have stated that they had no knowledge about any agreement and they have only received Rs.1,40,000/- as initial booking money without any agreement.

After assessing the materials on record, the Ld. District Forum by the impugned order dismissed the complaint. To assail the said order, the complainant has come up in this Commission with the instant appeal.

I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocates for the appellant, respondent no.1 and respondent nos. 2 to 4 respectively.

Undisputedly, Respondent Nos. 2 to 4 being owners of 2 cottahs 8 chittaks of land along with old structure lying and situated at Premises No.169A, Lake Gardens, P.S.- Lake, Kolkata – 700045 entered into an agreement with respondent no.1 for raising a multi-storied building over the said property on 02.03.2004. Be it mentioned here that, the landowners have already obtained a sanctioned building plan from the Kolkata Municipal Corporation on 16.11.1994. In the Development Agreement the landowners undertook to grant one Power of Attorney in favour of respondent no.1 authorising him to deal with intending buyers for sell of flat or flats to be construed on the 2nd floor. It was also agreed that the respondent no.1 being developer shall have the absolute authority with developer’s own allocation, subject to fulfilment of obligation towards the owner.

By dint of the agreement which bears the signature of all the landowners as well as the developer, the developer had entered into the agreement with the appellant on 05.09.2006 to sell one fully constructed self-contained flat on the 2nd floor of the said premises at a consideration of Rs.12,00,000/-. The evidence on record clearly suggests that the appellant/complainant has already paid Rs.12,70,000/- to the developer and Rs.1,40,000/- to the landowner aggregating Rs.14,10,000/- towards the respondents. On receipt of the entire consideration amount, the developer handed over the possession of the subject flat in favour of the appellant but it is quite apparent that the respondents are declining to execute the Sale Deed in favour of the appellant, for which the appellant had to knock the door of the Ld. District Forum.

The fact remains that the appellant being a ‘consumer’ within the meaning of Section 2(1)(d) of the Act hired the services on consideration and despite payment of excess amount and delivery of possession, when the respondents are not executing the Sale Deed, certainly, the respondents/OPs are negligent and deficient in rendering services within the definition of Section 2(1)(g) read with Section 2(1)(o) of the Act.

It is well settled that after accepting the entire 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. In this regard, the landowners have no locus standi to raise any objection in getting the flat in favour of the appellant from the allocation of the developer. The landowner may have genuine grievances against the developer but for which they 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 – ' 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 only on the ground that the landowners were not a party to the Agreement for Sale executed between the developer and the buyer.

Therefore, relying upon the materials on record, I have no hesitation to hold that the Ld. District Forum proceeded the matter in a wrong way without keeping in mind the avowed object behind the legislation of the Act. In other words, the impugned judgement/final order being not tenable in the eye of law, is liable to be set aside. On the contrary, the complaint being a meritorious one should be allowed. The conduct of the respondents being harassing one, the appellant is entitled to compensation which I assess Rs.50,000/- (Rs.25,000/- each by respondent no.1 and respondent nos. 2 to 4) considering the fact that the appellant is in possession of the same. However, the respondents are under obligation to refund excess amount of Rs.2,10,000/- received by them from the appellant. Under compelling circumstances, the appellant had to approach a Consumer Forum and as such he is entitled to litigation cost which I quantify to Rs.10,000/- (Rs.5,000/- each by respondent no.1 and respondent nos. 2 to 4).

For the reasons aforesaid, the appeal is allowed on contest.The impugned Judgement/Final Order is hereby set aside.

Consequently, complaint is allowed on contest.

The OP Nos. 1 to 4 are jointly and severally directed to execute the Deed of Conveyance in favour of the complainant in respect of the flat

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as mentioned in the Agreement for Sale dated 05.09.2006 within 30 days from date otherwise complainant may get the Deed registered through the machinery of Ld. District Forum. The OP No.1 is directed to refund Rs.70,000/- and OP Nos. 2 to 4 are directed to refund Rs.1,40,000/- in favour of the complainant within 30 days from date otherwise the amount shall carry interest @9% p.a. from the date of excess payments till its realisation. The OP No.1 is further directed to pay Rs.55,000/- and OP Nos. 2 to 4 are jointly and severally directed to pay Rs.55,000/- in favour of complainant as compensation and litigation cost within 30 days from date otherwise the amount shall carry interest 8% p.a. from date till its recovery. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III (South) for information.
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