04/03/16

HON’BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT

            These are the 8 complaint cases having identical facts which were heard analogously. 

            The case of the Complainants, in short, is that they are intending purchasers of separate composite units in the housing complex developed by the OPs as promoter and also being the owner of the premises.  The Complainants paid considerable amount towards consideration to the OPs, but the OPs did not deliver possession of the units to the respective unit owners.  The Complainants were always willing and ready to make payment of balance consideration money, but the OPs did not accept the same from the Complainants and demanded extra money although the terms of the agreement between the parties clearly put an embargo over any escalation of the price of the units.  The Complainants are bonafide purchasers for value.  Under such circumstances, the Complainants filed the complaints praying for direction upon the OPs to accept the balance amount of consideration, to provide completion certificate and to execute and register the deed of conveyance in respect of the units purchased by them.  The Complainants have prayed for compensation to the tune of Rs.9 lakh and Rs.50,000/- as cost of litigation. 

            The OP has filed W.V. denying all the material allegations raised in the complaint.  It has been stated that there is no cause of action and the Complainants are not the consumers within the meaning of section 2(1)(d) of the C. P. Act, 1986.  There is no consumer dispute or defect or any deficiency in service on the part of the OP.  The Complainants unequivocally accepted the terms and conditions of the buyer’s agreement. 

            The Learned Counsel for the Complainant has submitted that the Complainants have paid the considerable amount of money towards the consideration of the units under the agreement and in absence of completion certificate the Complainants could not accept the possession.  It is submitted that K.M.D.A. is not competent to issue completion certificate and it is to be issued by the Howrah Municipality.  It is submitted that other amenities and facilities which are assured in the brochure have not been provided.  It is contended that the shortage of area is an admitted fact and there is deficiency in service.  It is submitted that there is no provision in the agreement as to maintenance.  The Learned Counsel has referred to the decision reported in 2014 (4) CPR 357 (NC) [M/s Novous Abasan Pvt. Ltd. vs. Dakshineswar Saptarshi Welfare Society & Anr.].  Learned Counsel has referred to Black’s Law Dictionary (9^th edition) and has submitted that it is a case of ‘primary conveyance’ or ‘original conveyance’ and an estate can be created by deed of conveyance to sub-lessee.

            The Learned Counsel for the OP has submitted that in some cases some of the Complainants wanted to withdraw from the complaint and the Complainants are not deliberately taking possession although the units are lying ready for delivery of possession.  It is contended that in CC 30 of 2011 the Complainant No.2 is a limited company.  It is submitted that in all these cases the OP is the lessee under K.M.D.A. and the OP cannot execute and register the deed of conveyance in favour of the Complainants.  It is submitted that as per buyer’s agreement it is a lease of 999 years and the OP being the lessee cannot be directed transferring the ownership by executing and registering deed of conveyance.  It is submitted that the description of units are not definite and it suffers from vagueness as to the identity of property.  It is contended that the evidence has been adduced by the same person on behalf of all the Complainants.  The Learned Counsel for the OP has referred to the decision reported in I (2011) CPJ 318 (NC) [Yogesh Yadab vs. Ansal Housing and Construction Ltd. & Anr.].

            We have heard the submission made by both sides and perused the papers on record.  The Complainants as per averment made in paragraph 1 of the complaint are the intending purchasers of separate composite units of the housing complex under the OPs.  It is the contention of the Complainants that they have paid considerable amount towards consideration and the possession has not been delivered.  In the prayer portion of the complaint the Complainants have prayed for order upon the OPs for execution and registration of the deed of conveyance.  The intention of the Complainants, therefore, is to purchase the scheduled properties as owner thereof.  As per buyer’s agreement the OPs are the lessees under K.M.D.A.  Evidently, therefore, it is a leasehold property where title to the property cannot be conveyed.

            The Learned Counsel for the OP has referred to the decision in the case of Yogesh Yadab vs. Ansal Housing and Construction Ltd. & Anr. (supra) wherein it has been held that the matter pertaining to lease between the parties was a civil dispute.  The Learned Counsel for the Complainant has sought to distinguish the facts of the said case on the ground that in the said decision it was a commercial transaction and a civil suit was also filed.  But the ratio laid down therein is that the matter pertaining to lease between the parties is a civil dispute.  The lessee having the leasehold interest in the property cannot transfer the ownership thereof to the Complainants/Purchasers.  In the decision reported in 2012 CPJ 491 (NC) [Sunil J. Verma Vs. City and Industrial Development Corporation Ltd.] it was held that the entire complaint was based on matters arising from agreement of lease and the Complainant was not a consumer.  In the decision reported in 2011 CTJ 492 SC [Bhubaneswar Development Authority Vs. Sushanta  Kumar Mishra] it has been held that in the case of lease cum sale agreement there was no deficiency in service.  In the decision reported in I (2011) CPJ 318 (NC) [Yogesh Yadab vs. Ansal Housing and Construction Ltd. & Anr.] it has been held that the matter pertained to lease between the parties which was a civil dispute. Relying on the aforesaid decisions, we are of the considered view that the Complainants under the circumstances of the case cannot be said to be consumers and the relief sought for cannot be granted. 

            The complaints are dismissed.  The Miscellaneous Applications also stand disposed of.  This order will govern all the complaint cases as stated above.