DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 64_ OF ___2016
DATE OF FILING : 27.06.2016 DATE OF PASSING JUDGEMENT: 12.04.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & JhunAu Prasad
COMPLAINANT : Smt. Sabita Ghosh, daughter of late Satyendra Ghosh of 147, Paschatyapara Road, P.O Rajpur, P.S Sonarpur, Kolkata-149.
O.P/O.Ps : 1. Sri Karunamoy Nath
2. Sri prabir Kumar Nath
3. Sri Ganesh Chandra Nath
4. Sri Dinesh Chandra Nath
5. Sri Kamalesh Nath
6. Sri Samaresh Nath
All sons of late Harendra Nath of 68, Jadav Sarkar Lane, Baikunthapur, P.O Rajpur, P.S Sonarpur, Kolkata-149.
7. M/s Bindhachal Construction, represented by Sole Proprietor Mithun Mistry,son of Sukumar Mistry of Village and P.O Sahidkhali, P.S Hingalganj, Dist. N-24PGs,Pin-743435
8. Subhasis Mondal, son of Mohadeb Mondal of B-1/5,002, Prantik , Peeerless Housing Society, P.O & P.S Sonarpur, Kolkata – 150.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Briefly stated, the facts of the complainant are that one agreement for sale was effected on 11.2.2013 by and between her and O.p-7 i.e the erstwhile developer and thereby the said developer i.e O.p-7 agreed to sell a flat succinctly described in Schedule B to the complaint for Rs.11,50,000/-. O.P nos. 1 to 6 are the land owners of the case property also described in Schedule A to the complaint and they made an agreement for development of the said property with O.P-7. Thereafter, the complainant paid Rs.3 lac to O.P-7 as earnest money on 5.2.2013 , Rs.1.5 lac on 7.2.2013 and lastly Rs.4.5 lac on 11.2.2013. After that, one fine morning the O.P-7 decided to assign the case property to O.P-8 and accordingly he executed a deed of assignment in respect of the A schedule property in favour of O.P-8 , another developer. On 3.4.2015 the complainant paid Rs.50,000/- to the O.p-8.O.P-8 completed the construction; but he neglected to deliver the possession of the case property to the complainant, nor did he register the sale deed in favour of the complainant. Now, the complainant prays for registration of the sale deed in respect of the case flat in favour of her, delivery of the completion certificate along with possession of the flat, in the alternative, for refund and for compensation etc. Hence, this case.
The land owners i.e O.P nos. 1 to 6 have been contesting the case by filing written statement ,wherein it is mainly contended by them that there is no cause of action made out against them in the complaint. Their positive case is that O.P-7 could not lead his project to fruition and, therefore, he made a deed of assignment dated 21.9.2014 in favour of O.P-8 and thereby assigned all his rights, responsibilities and liabilities to O.P-8. Thereafter, a fresh development agreement and the fresh general power of attorney have been executed between them and the O.P-8 on 30.10.2014.They are not the service provider of the complainant and , therefore, the complaint should be dismissed in limini against them with cost.
O.P-8 has also filed written statement herein and contends therein that there is no cause of action arising against him in this case. According to him, no agreement for sale has ever been executed between him and the complainant and that he never received Rs.50,000/-as consideration price . He took Rs.50,000/- from the complainant as financial assistance and his relation with the complainant is one of creditor and debtor ,not of seller and purchaser.
The case is, as goes his submission, a frivolous and vexatious one and, therefore, it should be dismissed with cost.
O.P-7 i.e the erstwhile promoter has not turned up to contest the case insptie of service of summon through paper publication and, therefore, the case is heard exparte against him.
Upon the averments of the parties the following points are formulated for consideration in this case.
POINTS FOR DETERMINATION
- Is the case maintainable against the land owners i.e O.P nos. 1 to 6?
- Is O.P-7 liable for deficiency in service for not mentioning the name of the complainant in the deed of assignment dated 21.9.2014 as an intending purchaser of the subject flat?
- Is O.P-8 liable for deficiency in service for not giving vent to the sale agreement dated 11.2.2013 executed between the complainant and the O.P-7?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidences on affidavit are filed by the complainant, O.P nos. 1 to 6 and O.P-8. Questionnaires, replies, BNAs filed by the parties are also kept in the record for consideration.
DECISION WITH REASONS
Point no.1:
It is undisputed fact that O.P nos. 1 to 6 are land owners. They authorized O.p-7 to developer the land and thereafter to construct the building thereon and also to sell the portion of the building from his portion i.e developer’s portion. Such authorization was given to him by execution of a general power of attorney . O.Ps i.e O.P nos. 1 to 6 have also executed a fresh general power of attorney in favour of O.P-8 i.e the new developer on 30.10.2014 and have also similarly authorized him to act on their behalf. It has been stated by them in their written statement that they have not received any payment from any intending buyers. Regards being had to all these facts and circumstances we do hold that the said O.Ps i.e O.P nos. 1 to 6 are in no way the service providers of the complainant and as such the complaint appears to be not maintainable against them.
Point no.1 is thus answered against the complainant.
Point no.2:
In the instant case, the fact goes that the erstwhile developer i.e O.P-7has assigned all his right, title and interest and liability in the projectto O.P-8 and O.P-8 has taken over all these from O.P-7. O.P nos. 1 to 6 are the land owners and they have stated in their written statement that the project has been taken over by O.P-8 from O.P-7 and that they have also executed fresh development agreement and a fresh general power of attorney on 30.10.2014 in favour of O.P-8. O.P-8 has not denied it in his written version that the project has been assigned to him by O.p-7. What is not denied in the written statement of the party is deemed to be admitted by that party.
Taking all these into consideration it appears to us that the fact of the project being assigned to O.P-8 by O.P-7 stands established. Now arises the question whether the O.P-7 has caused any deficiency in service while assigning the project to O.P-8. Certainly. He has committed deficiency in service. A copy of the deed of assignment which has been executed by the O.p-7 in favour of O.P-8 has been filed herein by O.P nos. 1 to 6 and the same is marked as Exhibit 2 by them in their affidavit in chief. A perusal of Exhibit 2 i.e the deed of assignment reveals that the names of intending purchasers from whom O.P-7 has received consideration price for selling the property /flat are mentioned in the said deed of conveyance. But the name of the instant complainant i.e Smt. Sabita Ghosh finds no place in the deed of assignment executed by O.P-7. It is not the fact that the complainant did not pay any consideration price to O.P-7. O.P-7 executed an agreement for sale in favour of the complainant and thereby promised to sell the flat described in Schedule B to the complaint to the complainant. He received Rs. 9 lac from the complainant out of total consideration price of Rs.11,50,000/-. Still the name of the complainant does not transpire in the deed of assignment made by O.P-7 in favour of O.P-8. Is it not fraudulent act on the part of the O.P-7? The above act of the O.P-7 is clearly a gross deficiency in service on his part. This is not all. O.P-7has acted surreptitiously. He should have given the intimation of the assignment of the project to the complainant, because he owed an obligation to the complainant by having received payment of consideration money from her. But no such intimation was given to the complainant by O.P-7 and this act on the pact of the O.P-7 is also considered to be another deficiency in service for which the complainant has to bear the brunt for negligence of O.P-7 still now and God knows how many miles she will have to tread before getting any relief .
This point is thus answered in favour of the complainant.
Point no.3:
Now to see whether the O.P-8 is guilty of deficiency in service for ,if any.
O.P-8 has not executed and registered deed of conveyance in favour of the complainant in respect of the case flat . He has not delivered the possession thereof to the complainant. No completion certificate has also been given to the complainant by him. According to O.P-8, he made no agreement for sale with the complainant and he is not bound to deliver the possession of any flat to the complainant or to get any deed of conveyance registered in favour of the complainant in respect of the case property. We have already decided that the O.P-8 has taken over the project from O.P-7 and that has already been established on record. It is true that no agreement for sale has been executed by O.P-8 in favour of the complainant. According to the complainant, she has paid Rs.50,000/- to O.P-8 as part payment of consideration money. O.P-8does not deny the receipt of such money; but he denies that he received such money as part payment of consideration price. According to O.P-8 , he received the said money as financial assistance from the complainant. According to him, he took the money as loan from the complainant and that there exists a relationship of debtor and creditor between the complainant and him.
On perusal of the record nowhere it is found that the complainant is amoney lender or that he has money lending business as a part of which she advanced loan to the O.P-8. That apart, there is no iota of evidence on record that there exists a close relation between the complainant and O.P-8. If there is no close relation between the complainant and O.P-8 , if there is no money lending business of the complainant , we cannot understand why the complainant will advance a loan of Rs.50,000/- toO.P-8, a stranger person.
Let us consider the conduct of O.P:-8.
O.P-8 has denied everything as alleged by the complainant. Even he has no courage and resilience to admit the execution of deed of assignment by O.P-7 in favour of him. Complainant put specific question to O.P-8 in herquestionnaire to the effect whether he i.e O.P-7 has executed deed of assignment in favour of him i.e O.P-8. In reply to this question , O.P-8 has stated thatthis is an irrelevant question. In this way, O.P-8 is seen to have avoided everything. He seems to be a person catching fish without touching water.
Be that as it may, we do hold that the O.P-8has taken over the project with all its rights and liabilities and have also received payment of Rs.50,000/- as consideration price from the complainant. O.P-8 will have to bear the liability that has been handed over to him by O.P-7. Law is clear on this point and the Law does not allow O.P-8 to shirk off his entire burden . There is a legal maxim that covenant always runs with the land and such maxim has found its place in Section 40 of Transfer of Property Act. Section 40 of the T.P Act is reproduced here in its second part as follows:
Such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transfereeof the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.
A contract to sell Sultapur to B. While the contract is still in force, he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A”.
Coming to the facts of the instant case, it is found that the complainant made a contract with O.P-7 for purchasing the case flat . O.P-7 was bound to fulfill his contract by selling the property to the complainant. Now, O.P-7 has assigned the project to O.P-8. O.P-8 has the notice of the project and also of the fact that the complainant is an intending purchaser. He received Rs.50,000/-as consideration price from the complainant . To prove the payment of Rs.50,000/-to O.P-8, the complainant has filed a copy of money receipt issued by O.P-8vide Annexure C attached to the complaint.In annexure C it is clearly mentioned by O.P-8 that Rs.50,000/- has been received by him for 68, Jadav Sarkar Lane, Baikonthapur project. The fact of receipt of Rs.50,000/-by the O.P-8 for the subject project goes to establish that O.P-8 had the notice of the agreement of complaint with O.P-7.So, in view of the provisions of Law as stated above, the complainant is entitled to execute the said agreement against the O.P-8 as she could have done that thing against O.P-7. O.P-8 can never avoid the obligation or liability which has been entrusted with him by taking over the project from O.P-7. He will have to discharge all the obligations which the O.P-7 was required to do by virtue of agreement for sale executed by him in favour of the complainant.
Now about the liability of O.P nos. 7 and 8.
To form any opinion on this point, we are required to cast a glance at the provision of clause 7 of the Deed of Assignment as transpired at page 8 thereof, which is reproduced as follows :
This provision of Deed of Assignment makes it clear that both the O.P nos. 7 and 8 are equally liable to the complainant; they will remain liable jointly and severally to the complainant for any act required to be done by them.
This point is thus disposed of accordingly in the long run.
Point no.4:
Upon what has been discussed above it is found that the complainant is entitled to get the relief or reliefs as prayed for and, therefore, the reliefs are laid down as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against O.P-8 with cost of Rs.5000/- , decreed exparte against O.P-7 without cost and dismissed on contest against O.P nos. 1 to 6 also without cost.
The O.P-8 is hereby directed to execute and register the deed of conveyance in respect of the subject property/flat in favour of the complainant having received the balance consideration money from the complainant, to deliver possession of the subject flat to the complainant along with completion certificate of the subject property and also to pay a sum of Rs.30,000/- as compensation for harassment and mental agony caused to the complainant along with the cost as referred to above within a month of this order, failing which the compensation amount and the amount of cost will bear interest @12% p.a till full realization thereof.
In case, the O.P-8 makes any default in compliance of the order as aforesaid, both the O.P nos. 7 and 8 , who will remain jointly and severally liable for making payment to the complainant will make refund of entire consideration price paid by the complainant i. e Rs. 9,50,000/-with interest @12% p.a from the date of receipt of the consideration price till full realization of entire decreetal amount and also to pay a sum of Rs.2,87,500/- ( 25% for appreciation of value calculated) as damage for loss sustained by the complainant due to appreciation in value and further also to pay a sum of Rs.10,000/-as compensation for harassment and mental agony caused to the complainant along with cost as referred to above within a month of this order failing which the amounts of cost and compensation will bear interest @10% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
