IN THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, MURSHIDABAD AT BERHAMPORE.
CASE No. CC/155/2019
Date of Filing: Date of Admission: Date of Disposal:
06.11.2019 19.11.2019 12.10.2023
Complainant: 1. Sri Raktim Dash
S/o- Late Rajendra Prasad Dash
2. Smt. Mitali Dash
W/o- Raktim Dash
Both residing at Vill & P.O.- Jangipur, (Saheb Bazar)
P.S.- Raghunathganj,
Dist- Murhsidabad
Pin-742213
-Vs-
Opposite Party 1. Anup Sinha Co.
A Partnership firm having its’ address at Krishna Nath Road,
P.O. & P.S.- Berhampore, Dist- Murshidabad,
Represented by Its partners,
2. Sri Anup Kumar Sinha,
S/o Late Ardhendu Nath Sinha
Partner of Anup Sinha Co. at Krishna Nath Road,
P.O. & P.S.- Berhampore, Dist- Murshidabad,
3. Smt. Jona Sinha
W/o- Anup Kumar Sinha,
at Krishna Nath Road,
P.O. & P.S.- Berhampore, Dist- Murshidabad,
4. Sri Sourendra Mohan Chowdhury,
S/o Late Sarashi Mohan Chowdhury,
At Raghunathganj, Sub-division-Jangipur,
P.O. & P.S. Raghunathganj, Dist- Murshidabad,
Pin-742225. After the demise of this O.P. 4 the following O.P.s have been made party as legal heirs of the deceased O.P. 4.
4(a) Purnima Choudhuri,
W/o- Late Sourendra Mohan Chowdhury,
Residing at Meera Bhavan, Flat No 1A,
550/485, Fanshitala, P.O. – Raghunathganj,
Dist- Murshidabad, Pin-742213,
4(b) Sudipta Chowdhury
S/o- Late Sourendra Mohan Chowdhury,
at Meera Bhavan, Flat No. 1A, 550/485,
Fanshitala, P.O.- Raghunathganj,
Dist- Murshidabad,
4 & 5 presently residing at C/o Tarapada Bhattacharya, 12 Mohan Roy Para Lane,
P.O.- Khagra, P.S.- Berhampore, Dist- Murshidabad,
Agent/Advocate for the Complainant : Jaydeep Misra
Agent/Advocate for the O.P. No. 1, 2 & 3 : None
Agent/Advocate for the O.P. No. 4(a) & 4(b) : Saugata Biswas
Present: Sri Ajay Kumar Das…………………………..........President.
Sri. Nityananda Roy…………………………………….Member.
FINAL ORDER
Sri. Ajay Kumar Das, Presiding Member.
This is a complaint under section 12 of the CP Act, 1986.
One Sri Raktim Dash and Anr. (here in after referred to as the Complainants) filed the case against Anup Sinha Co. and Ors. (here in after referred to as the O.P.s) praying for compensation alleging deficiency in service.
The sum and substance of the complaint case is as follows:-
The Complainants are purchaser of a Flat bearing No.-3/A from the O.P.s.
The O.P. No. 1 is developer, a partnership firm represented by its partner the O.P. No. 2 and 3. The O.P. No. 4(a) & 4(b) are the landowner of property at Mouza-Raghunathganj under Jangipur Municipality holding No. 550/485, Fanshitala, in R.S Khatian No. 813, R.S Plot No. 24/1095 measuring about 10 decimals of land which are within the jurisdiction of the Hon’ble Commission. That one Sourendra Mohan Chowdhury (since deceased) was the original owner of the said property. He being interested to construct multi-stored building with several number of flats, shops and garages entered into a development agreement with the O.P. No. 1 to 3 on 10/10/2010 for construction of G + 5 storied building over the land know as “Meera Bhawan” as per sanctioned building plan issued by Jangipur Municipality along with certain terms and conditions enumerated in the said development agreement dated 10/10/2010.
On the strength of development agreement the O.P. Nos. 1 to 3 obtained sanctioned building plan and started construction. The Complainants having an urgent need of accommodation approached the O.P. Nos. 1 to 3 and expressed his intention to purchase 1 Flat at the premises in question. Accordingly an agreement for sale dated 15.01.2013 has been executed by and between the parties for one Flat bearing No-3/A on the 3rd Floor North West Side measuring about 1020 Sq. Ft. Super built-up area at holding No. 550/485, Fanshitala, Jangipur Municipality, Dist-Murshidabad against total consideration price of Rs. 18,15,000/- only.
The Complainants paid the consideration amount on installment of different dates against proper receipts duly issued by the O.P. Nos. 1 to 3 and ultimately got possession of the said Flat in question on 03.08.2014 as per possession letter date 03.08.2014. But in spite of possession given by the O.P. Nos. 1-3 the owner namely Sourendra Mohan Chowdhury (since deceased) failed to execute and register Deed of Conveyance. Sourendra Mohan Chowdhury (since deceased) delayed the matter with different pretext or other.
In spite of getting possession of Flat bearing No-3/A the Complainant was under anxiety about execution of deed of conveyance because till date the owner did not execute deed of conveyance in favour of the Complainants but O.P. Nos. 1-3 are willing and ready to execute Deed of Conveyance in favour of Complainants as a confirming party.
Sourendra Mohan Chowdhury died on 06.01.2022 leaving behind OP. No. 4(a) as wife & O.P. No. 4(b) as only son.
Therefore after repeated verbal approach and having no other alternative the Complainants approached the O.P.s vide letter dated 17.09.2019 and requested for execution of deed of conveyance in their favour and in reply the O.P. No. 1-3 replied vide letter dated 21.09.2019 that they were ready to sign necessary documents and to be present before registrar for transferring the aforesaid flat but O.P. No. 4(a) & 4(b) did not reply anything.
The Complainants submit that after getting possession the Complainants repeatedly approached the original owner namely Sourendra Mohan Chowdhury (since deceased) for registration which has been delayed with different pretext or other which cause severe anxiety and harassment of the Complainants. The O.P.s after execution of agreement for sale with the complainants, are duty bound to execute and register deed of conveyance in favour of the Complainants which neither of the O.P.s can deny for any reason. If any dispute or difference arose between the O.P.s, transfer of said flat by registration in favour of the Complainants cannot be denied as the Complainants being the intending purchaser got possession of the said flat after payment of the entire consideration amount and therefore such conducts of the O.P.s tantamount to gross deficiency in service on the part of O.P. Nos. 4(a) & 4(b) in particular.
Finding no other alternative the complainant filed the instant case before the District Commission praying for a direction to the O.P.s to execute and register deed of conveyance in favour of the Complainants and to award compensation amounting to Rs. 1,84,999/- due to harassment.
Defence Case
O.P. Nos. 1 to 3 is contesting the case by filing affidavit. O.P No. 2 has stated that he is also stating on behalf of O.P. No. 1 and O.P. No. 3.
It is coming out from his affidavit that they entered into a Developer’s Agreement with the O.P. No. 4 Sourendra Mohan Chowdhury in the year 2010 in order to Develop a property measuring 10 dec. appertaining to R.S. Plot No. 24/1095 within District- Murshidabad, P.S- Raghunathganj, Mouza- Raghunathganj.
The petitioners (Complainants of the instant case) entered into an agreement on 15.01.2013 for Sale with the owners and the developers in order to purchase a flat bearing No. 3/A on the Third Floor measuring 1020 Sqft., Super Built Up Area.
The firm (O.P. Nos. 1 to 3) completed the construction within the stipulated period. But due to unwillingness and non co-operation on the part of the owner i.e., O.P. No. 4 Sourendra Mohan Chowhdury (now the legal heirs of the deceased Sourendra Mohan Chowhdury i.e., O.P. No. 4(a) & 4(b)) the deed of sale of the abovementioned flat has not been executed and registered. They are always ready and willing to execute and register the deed of sale in respect of the abovementioned unit. So, there is no deficiency of service on the part of the O.P. Nos. 1 to 3.
In the same project there was a same allegation raised by one Uttam Singha and others against the owner of the property Sourendra Mohan Chowdhury.
That Uttam Singha and others filed a complaint case being No. 688/2017 in the State Consumer Redressal Commission, West Bengal. The Ld. Commission through an order dated 14.05.2018 directed the owner and Developer to execute a deed of conveyance in respect of the property.
O.P. No. 4 Sri Sourendra Mohan Chowdhury is contesting the case by filing W/V contending inter alia that the instant case is not maintainable.
The point to be noted is that Smt. Purnima Choudhri, W/o- Late Sourendra Mohan Chowdhury and Sri Sudipta Chowdhury, S/o- Late Sourendra Mohan Chowdhury, have been made party as O.P. 4(a) & O.P. 4(b) after the demise of O.P. 4 Sri Sourendra Mohan Chowdhury. These O.P. 4(a) & 4(b) have accepted the W/V filed by their predecessor i.e., O.P.4 Late Sourendra Mohan Chowdhury.
O.P. 4 has stated in his W/V that the O.P. No. 4 with an intention to develop his property entered into developer agreement with Anup Sinha Company a Partnership firm represented by Anup Kumar Sinha and Jona Sinha on 10.10.2010. and the said deed of agreement had duly been registered on 19.01.2011.
In that agreement the developer agreed that they would complete the development and construction within 3 years from the date of sanction plan issued by Jangipur Municipality and/or the date of possessing of the vacant land.
That in clause 38 of the said agreement the developer would pay a sum of Rs. 275/- only per super built sqft. at the time of registration.
That this O.P. No. 4 also executed a power of attorney in favour of the said company on 19.01.2011 which had duly been registered.
A supplementary deed of agreement between Sourendra Mohan Chowdhury and Anup Singha was executed on 27.12.2012.
That O.P. Nos. 1, 2 and 3 did not comply the condition of development agreement and as such this O.P. No. 4 revoked the power of attorney on 27.11.2011.
That all on a sudden this O.P. no. 4 received a letter from Raktim Dash and Mitali Das and came to learn that the Complainants entered into an agreement with the said Anup Singh Company on 15.01.2013.
That this O.P. No. 4 further submits that as the Complainant did not inform this O.P. No. 4 regarding agreement for sale dated 15.01.2013 and as such this O.P. No. 4 has no liability to register the said flat as because the said deed of agreement for sale has no signature on the part of the owner.
That the agreement for sale was executed on 15.01.2013 and the O.P. No. 1, 2 & 3 gave possession of the alleged flat in favour of the Complainant on 03.08.2014.
That the Complainant did not inform the matter since 03.08.2014 to 05.06.2017 and as such this Compliant is barred by limitation under Consumer Protection Act, 1986.
The Complainant did not come before this Hon’ble Commission with clean hands for that reason this complaint should be liable to be dismissed with cost.
That the letter dated 17.09.2019 has no forced as because the O.P. No. 4 had already revoked the power of attorney on 27.11.2017 and the O.P. Nos. 1, 2 and 3 are well aware regarding the said revocation.
The Complainant filed this complaint in collision with O.P. Nos. 1, 2 and 3 and as such the complaint is liable to be dismissed with cost against this O.P. No. 4 (now O.P. No. 4(a) and 4(b)).
Points for decision
1. Are the Complainants consumer under the provision of the CP Act, 1986?
2. Have the O.P.s any deficiency in service, as alleged?
3. Are the Complainants entitled to get any relief, as prayed for?
Decision with Reasons:
Point no.1
We peruse the complaint. The averments made in the complaint indicate that the Complainant is a consumer under the Consumer Protection Act, 1986 as well as Consumer Protection Act, 2019. So, the point number 1 is decided in favour of the Complainants.
Point Nos. 2 & 3
Both these points are taken up together for the sake of convenience and brevity of discussion.
The Ld. Advocate for the Complainants submits that after getting possession, the Complainants repeatedly approached the original owner namely Sourendra Mohan Chowdhury (now deceased) for registration which has been delayed with different pretext or other which cause severe anxiety and harassment of the Complainants. The O.P.s after execution of agreement for sale with the complainants, are duty bound to execute and register deed of conveyance in favour of the Complainants which neither of the O.P.s can deny for any reason. If any dispute or difference arose between the O.P.s, transfer of said flat by registration in favour of the Complainants cannot be denied as the Complainants being the intending purchaser got possession of the said flat after payment of the entire consideration amount and therefore such conducts of the O.P.s tantamount to gross deficiency in service on the part of O.P. Nos. 4(a) & 4(b) in particular.
Ld. Advocate for O.P. 4 [now O.P. No. 4(a) & 4(b)] submits before this Commission that O.P. 4 has stated in his W/V that the O.P. No. 4 with an intention to develop his property entered into developer agreement with Anup Sinha Company, a partnership firm represented by Anup Kumar Sinha and Jona Sinha on 10.10.2010 and the said deed of agreement had been duly registered on 19.01.2011. In that agreement the developer agreed that they would complete the development and construction within 3 years from the date of sanction plan issued by Jangipur Municipality and/or the date of possessing of the vacant land.
Mr. Anup Kumar Sinha for the firm submits before this Commission that this firm (O.P. Nos. 1 to 3) completed the construction within the stipulated period. But due to unwillingness and non co-operation on the part of the owner i.e., O.P. No. 4 Sourendra Mohan Chowhdury (now the legal heirs of the deceased Sourendra Mohan Chowhdury i.e., O.P. No. 4(a) & 4(b)) the deed of sale of the abovementioned flat has not been executed and registered. They are always ready and willing to execute and register the deed of sale in respect of the abovementioned unit. So, there is no deficiency of service on the part of the O.P. Nos. 1 to 3.
The Complainants have filed the instance case praying for an order directing the O.P.s to execute and register the deed of convenience in favour of the Complainants. Here we find that O.P. Nos. 1 to 3 are willing and ready to register the deed of convenience in favour of the Complainants.
Now, the question arises whether the O.P. No. 4 [now O.P. No. 4 (a) and 4 (b)] are bound to execute and register the deed of convenience in favour of the Complainants.
Ld. Advocate for the O.P. No. 4(a) and 4(b) submits before this Commission that the original owners i.e., O.P. No. 4 did not sign the deed of agreement for sale and as such the legal heirs of O.P. No. 4 i.e., O.P. No. 4(a) and 4(b) are not bound to register the deed of convenience in favour of the Complainants.
Ld. Advocate for the O.P. No. 4(a) and 4(b) further submits that it has been mentioned in clause 38 of the deed of agreement dated 10.10.2010 to the effect, “ The owner on receipt of balance payment for the sale of particular flat space (I.e.@ Rs. 275/- only per super built sq. ft.) of the building concern will execute and register the sale deed in favour of the intending purchaser and at the time of registration the developer will have to be a confirming party to that particular sale deed. In other words without confirmation of the developer, owner will have no right to sale / register any flat / space of the building concern.”
In answer to the submission of the Ld. Advocate for O.P. Nos. 4(a) and 4(b), clause 29 of the deed of agreement dated 10.10.2010 may be quoted here: “ Baring the B schedule Flat The developer shall be entitled to execute agreement for sale of different flats, shops and garages to accept the money from the purchaser and to give valid discharges for the same. The owners shall not be accountable in any manner to the intending purchaser for acceptance of money from them by the developer as well as for any defect in construction of the building. The developer will accept the said money interalia at their own risk and liability.”
Clause 4 of the power of attorney dated 10.10.2010 executed by O.P. 4 Sourendra Mohan Chowdhury may be quoted here: “ To procure buyers for the sale of proposed flats, shop rooms and garages and for the said purpose, shall have the right to enter into an Agreement for Sale with the intending purchaser or purchasers for selling of the said flats, shops and garages and also to receive money from the said intending purchaser or purchasers and to give good valid receipt.”
Combined reading of clauses 38 and 29 of the deed of agreement dated 10.10.2010 and clause 4 of the power of attorney dated 10.10.2010 clearly indicate that O.P. Nos. 1 to 3 are authorized to execute the deed of agreement for sale in favour of the Complainants and these O.P. No. 1 to 3 are also authorized to collect the purchase money from the intending purchaser.
Ld. Advocate for the O.P. 4(a) & 4(b) submits before this Commission that they had revoked power of attorney dated 10.10.2010 on 27.11.2017. He has filed the copy of revocation of power of attorney. But the record shows that the deed of agreement for sale was executed by the O.P. firm on 15.01.2013 in favour of the intending purchasers i.e., the Complainants. Such being the position we are of the view that this revocation of power of attorney does not deserve consideration in deciding the dispute between the parties.
Ld. Advocate for the O.P. 4(a) & 4(b) submits before this Commission that intending purchaser took possession of the Flat No. 3A on IIIRD Floor at Meera Bhavan, Haridasnagar (FANSHITALA), Holding No: 550/485, P.O.- Raghunathganj, Murshidabad, West Bengal on 03.08.2014 vide Letter dated 03.08.2014. Three years have already been lapsed. Such being the position O.P. No. 4(a) and 4(b) are not bound to execute and register the sale deed in favour of the intending purchaser i.e., the Complainants.
In the sale deed which is required to be executed, there are two parties. The Complainants are the first parties and the O.P.s are the second parties. Among the Opposite Parties, O.P. Nos. 1 to 3 are always ready and willing to execute and register the sale deed in favour of the Complainants. Moreover, when the deed of agreement for sale is executed, the O.P.s are bound to execute and register the sale deed. The facts and circumstances suggest that the cause of action accruing in the instant case is a continuing cause of action. Such being the position the submission advanced by the Ld. Advocate for the O.P. 4(a) and 4(b) in the matter of limitation is not tenable.
The point to be noted is that over the same property, similar dispute was decided in between the O.P.s and another intending purchasers by the State Commission in Complaint Case No. CC/688/2017. The relevant portion of the judgment passed by the Hon’ble State Commission may be mentioned here: “ 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 cannot shirk off his responsibility. In this regard, the landowner has no locus standi to raise any objection in getting the flat in favour of the Complainants 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 Paragraph- 23 has observed this – “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.”
Ld. Advocate for the O.P. 4(a) & 4(b) drew my attention to clause 38 of the deed of agreement dated 10.10.2010 and submits that the owner did not get the balance payment for the sale of particular flat space (i.e.@ Rs. 275/- only per super built sq. ft.) and as such the owner is not bound to execute and register the sale deed.
In this respect the relevant portion of the judgment passed by the Hon’ble State Commission in Complainant Case No. CC/688/2017 may be quoted here “ Whatever dispute be there between the landowner and the developer, the same can be settled in an independent proceeding. As per agreement, the landowner 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 landowner was not a party to the Agreement for Sale executed between the developer and the buyer.”
Considering the facts and circumstances of the case and the proposition of the law laid down by the authorities mentioned above, the complainants are entitled to relief for getting the Deed of Conveyance executed in their favour. Considering the facts and circumstances the Complainants are entitled to litigation cost which we quantify at Rs. 10,000/-
Consequently, the complaint is allowed on contest.
Reasons for delay
The Case was filed on 06.11.2019 and admitted on 19.11.2019. This Commission tried its level best to dispose of the case as expeditiously as possible in terms of the provision under section 13(3A) of the CP Act, 1986. Delay in disposal of the case has also been explained in the day to day orders.
In the result, the Consumer case is allowed on contest.
Fees paid are correct. Hence, it is
Ordered
that the complaint Case No. CC/155/2019 be and the same is allowed on contest.
The Opposite parties are jointly and severally directed to execute the deed of conveyance in respect of the property as mentioned in the Schedule of the Agreement for sale dated 15.01.2013 in favour of the Complainants within 60 days from date otherwise the complainants shall have liberty to get the deed executed through the machinery of the Commission. The O.P. Nos. 1 to 3 are directed to make payment of litigation cost of Rs. 10,000/- (ten thousand only) in favour of the Complainants otherwise the amount shall carry interest @ of 9 per cent per annum from date till its realisation.
Let plain copy of this order be supplied free of cost, to each of the parties / Ld. Advocate/Agent on record, by hand /by post under proper acknowledgment as per rules, for information and necessary action.
The Final Order will also be available in the following Website:
confonet.nic.in
Dictated & corrected by me.
President
Member President.
