FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay    President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act   1986 by the complainant stating that the petitioner owned & possessed absolutely a Bastu land measuring 0.05 Acre or 3 Cattah 0 Chatak 18 sq. feet being JL no.21   Mouza-Bhata   Revenue Survey no.1295   RS Khatian no.457/LR Khatian no.1451   RS Dag no.733/796/LR Dag no.808(p) under the ambit of Tarakeswar Municipality   Ward no.10   Street no.5 with right   title interest   duly purchased from one Smt. Susama Adak   W/o Paresh Nath Adak of Tarakeswar vide a sale deed no.659/1979 registered at Sub Registry Office Haripal vis-à-vis mutated her name in the records of B.L.L.R.O.   Tarakeswar & that of Tarakeswar Municipality   more fully described in the below schedule and the above OP Firm has also purchased part of R.S 733/796 LR 808 Dags alongwith other adjacent land area from its respective owner(s) for the purpose of Development thereof with multistoried building with commercial business complex thereon and an ambition lurked in the ;mind of petitioner to have her land being developed   but financial constraints and physical inability/stresses stood in her way.  Likewise OP partnership firm was also permuting & computing avenues as to how ploughback more gain in development process in amalgamating more adjacent lands.

In this duality of waxing & waning of thoughts processes   reigning within the petitioner & OP(s)   a concurrence having been reached between both of them   leading to the joint execution & jointly signingup and Registration of an ‘Agreement for development on 20.11.2014 before the A.D.S.R   Tarakeswar being deed no.2826/2014   whereinunder all the necessary terms & conditions have been embedded & the total Market value of the Development Agreement or Construction Agreement was assessed as Rs.43  33  334/- only & accordingly relevant stamp duty was paid including the registration fee of the Agreement as per existing rules and the term(1) of the stated Development Agreement specifies the petitioner handing over a Regd. Power of Attorney of the Á  schedule property to the OPs for setting up (G+4) multistoried building & commercial flats as per sanctioned plan of Tarakeswar Municipality at the entire expenses / cost of the Developers.  The submitted building planto local municipality to have the signature of the petitioner or her power of attorney holder thereon (marked)   whereas the OPs to give ownership of one set up Hall room   measuring 800(20X40) sq. ft. on the ground floor & one equal area of 800(32X25) sq.ft. unit flat on the 1^st floor with 2 nos. bed rooms/dining space-1 no./kitchen – 1 no. / Toilet – 2 nos. verandah in the East/West/South/North being an intra one of the Constructable (G+4) flat building with commercial complex with easement rights to all other common area inside the building developed/promoted.

Building project to be completed within 1 year 6 months or latest by 2 years from the receipt of the sanctioned plan from the Tarakeswar Municipality.  In case of the delayed delivery of the allotted units at the different positions to the complainant the op to pay up liquidated damage @ 20% over the equated constructable value   however excepting force majeure(term-II of development agreement) and in page no.13 of the jointly signed & Regd. Development agreement under schedule I (promoters cum developers obligations).  It has been diarised from the Agreemental terms on the Development Agreement executed registered on 20.11.2014 but still upto the end of February   2017 the development project remained incomplete.  The complainant came to know that the OP in utter violation of the executed development Agreement dt.20.11.2014 by between 1^st party land owner & the 2^nd party partnership Firm   the latter surreptitiously & stealthily going ahead with construction work at the underground area including the area of the land owner without any prior ascent & permission   including the relevant modalities how to apportion the relevantareas worked out value between involved parties thereof thereby caused deficiency in service / negligence.

During that time the Op of the instant suit admitted their default and agreed to officer Rs.14  00  000/- only by installments for settlement to include basement area of the schedule land property.  Accordingly one   Addendum  to the development agreement no.23/02.03.2017 (notarial) was executed between the parties land owner & OP and on 02.03.2017   at Chandernagore Court   which was treated as a supplementary & complementary to the original development agreement no.2826/2014 primarily executed on 20.11.2014.

The clause/term no.7 of the ‘Addendum to the Development Agreement last 6 lines sum up the necessity of the execution of thereof   reading as   During the execution of the original development agreement above referred   the 2^nd party Developers did not pay any amount whatsoever to the 1^st party land owner & the basis of her judicious demand this time   2^nd party developers have agreed to honour the demand mooted out by the land owner for which their Addendum to the Development agreement is hereby executed by & between both the involved parties herein  .

But the OP made intentionally delay making last installment payment.  On 01.10.2018  for which they are liable to pay 12% interest for the portion of unpaid amount beyond the targeted period of 30.06.2017 and dates of payments of installments by op to the complainant are described in the complaint petition.

From the recitals in the Regd. Development agreement mutually agreed to struck out between the parties   it is abundantly clear like a broad daylight that the OP deliberately &motivatedly violated many of terms to the detriment of the Land owner or the complainant clearly over ruled   Schedule-I promoters cum developers obligations   in page 13 of the development agreement   in as much as the terms & conditions mutually agreed & struck out in the addendum to the development agreement later on signed thereby causing deficiency in service/negligence   whereas in the development agreement & to its addendum the complainant of this suit always cooperated with the OP at all the stages of the development process   strictly complying with the necessary obligations & activities towards the OP Firm imposed upon by the registered power of Attorney no.419/17 dt.08.03.2017.

Thereafter when all the conditions became/felt on their own side   the OP severed communicating link with the Land owner or complainant of the suit.  In such a condition the petitioner began to remind the OP verbally through her sons about their motivated dilatory tendencies in completing development project beyond the targeted date of two year mutually agreed upon and thereby caused deficiency of services   unfair trade practices & negligence etc. and then suddenly the complainant came to know about ceremonial inauguration of the multistoried flat building named peace palace on 6^th January   2019 by the peace developers the partnership firm & its 5 partners   totally ignoring registration of the sale deed of the land owner   or the complainant allotted schedule mentioned suit property   either initially &alongwith the delivery & registration of the 1^st lot of flats other vender(s) and in that violative circumstances of the mutually agreed terms under clauses no. SL. No. 10 of the original Development Agreement by the op   the complainant wrote a letter in Bengali language to the   Peace Developers   on 7.2.2019 to get sale deed registered of her allotted shop room and flat in the registered development agreement executed on 20.11.2014 by and between the parties of this case. There upon a reply letter dt. 19.2.2019 from one of the partners   Manowar Hussain Mallick confirming inter alia early solution via registration of the allotted   B   schedule portion to the complainant but there was no fruitful result. Then the complainant again requested the opposite parties to get the registration of the sale deed for her allotted portion but again there was no fruitful result.

Ultimately   being totally dejected & frustrated   at last the petitioner sent a Regd. A/D Advocate notice dt.22.11.2019 from the Advocate of Calcutta High Court requesting the Developer and to all its partners separately inter alia getting sale deed of her allotted B schedule property duly registered against which a reply letter dt.17.12.2019 was sent by Advocate of Calcutta High Court on behalf of his client peace Developers represented by Manowar Hussain Mallick of Naskarpur   P.O-KeshabChak   P.S-Tarakeswar   Dt-Hooghly   Pin 712410 admitting execution of Regd. Development agreement between both the land owner & his client peace developers where upon & a Regd. Power of Attorney having been executed by Smt. Durga Ram Malik  in favour of the Developer Partnership firm   allegedly shifting blame   contrary to the evidentiary documents   upon the land owner & petitioner of this case for the delay caused by the developer on every form & nature & denying violation & refutation of obligations imposed upon them either by the Development agreement vis-à-vis its subsequent addendum thereto   thereby purportedly made themselves liable for the breach of contractual agreement out rightly causing negligence & deficiency of service.  To unfound the wrong denials & unlawful factual aberration of the developers advocate Sourav Mondal of Calcutta High Court another Regd. Notice & dt.27.02.2020 was sent to him by the complainant s Advocate urging the peace developers & its partners to get the sale deed of the allotted B schedule property registered in favour of his client Smt. Malik within one month.  But it went unheeded &non complied with by the OP arrogantly.

Being a considerate lady Smt. Malik    she tried to get the disputed issue sorted out via the use of good offices of the Assistant Director   Hooghly   Dept. of Consumers Affairs & Fair Trade Practices Hooghly at Chinsurah& via a petition for adjudication of the matters dt.27.02.2020.  But OP did not turn up on summons there at & ultimately the Asst. Director   Dept. of Consumer Affairs & Fair Trade practices   Hooghly at Chinsurah advised Smt. Malik the land owner to move the case to CDRF   Hooghly now rechristened as DCDRC   Hooghly on 11.11.2020.

Being frustrated & totally dejected the complainant once again requested to the partners of the developer Firm   verbally sometimes before the Durga Puja when one of the partners assured to get the sale deed of registration for B schedule allotted property of the petitioner   sometime during the Dewali festival   in favour of the land owner & the complainant of the suit and at last times the complainant compellingly served a registered notice with A/D dt.22.11.2019 from the Advocate of Calcutta High Court to M/s Peace developers including all the partners separately at each partner s recorded residential address in the Development agreement dt.20.11.2014 also addendum to the development agreement dt.02.03.2017 which were however   refused excepting a reply dt.22.11.2019 against the Regd. A/D notice by Advocate representing his client    a partner of peace developer dt.22.11.19 sending it to the complainant s Advocate Partha Mukherjee   Advocate   Calcutta High Court   countering & alleging various lapses on the part of the land owner-complainant & denying all the defaults attributed to the firm or its partners.

The complainant for the last time shot to Advocate of Calcutta High Court another registered A/D notice from Sambhu Nath Mukherjee   Advocate   Chandernagore court   serial wisely countered dethroned all the purportedly baseless allegations of the developers firms properly true factual panorama of the issuing cases when no fresh counter reply did come from either from the developers firm & their Advocate which deemed to be treated as true & authentic and as the last resort & as the sheet anchor of consumer disputes redrenal & prompt settlement thereof the District Asst. Director   Hooghly Dept. of Consumer Affairs & Fair Trade practices   Hooghly verified adjudication petition dt.27.02.2020 was filed by Smt. Malik   land owner & the complainant against the firm peace developers and its 5 partners above named.  But the OP did not attend & ignored it out rightly and the adjudicating authority treated the case as closed vide his valued order dt.11.11.2020   advising the complainant to move her case to the CD:RF (now CD-RC) Hooghly at Chinsurah.

Complainant filed the complaint petition praying direction upon the opposite parties to  register and execute the necessary sale deed and/ or otherwise for the allotted schedule ‘B  property in favour of the complainant expensed as agreed and embedded in Regd. Development Agreement   Rs. 36  80  000/- only calculated @ Rs. 2300/- per sq.ft. and to pay a sum of Rs. 7  36  000/- for damage and to pay a sum of Rs. 50  000/- for harassment and mental agony and to pay a sum of Rs. 10  000/- for litigation cost and to give any other relief or reliefs as deem fit and proper.

Defense Case:-The opposite parties contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that there was a development agreement between the complainant and the opposite parties herein which will duly registered before the Additional District Sub Register at Tarakeswar   Hooghly on 20^th November   2014 and such development agreement was in respect of the developing a G+4 multistoried residential cum market building complex to be developed in the land being municipal holding no. 11D   ward no. 10   Mohalla Street no. 5   Jaykrishna Bazar   P.O. & P.S. Tarakeswar   Dist. Hooghly. The development agreement specifically states that the complainant/ owner is entitled to a hall room on the ground floor situated at Northern side of the land property as morefully mentioned in the schedule B below plus a unit at the first floor which will be constructed as per the development agreement to the complainant and the development agreement further specifically states that in the event of failure on the part of the developer   the opposite party developer will pay the compensation in the form of liquidated damages to the complainant and after execution of the development agreement a power of attorney and another instrumental titled   Addendum to Development Agreement   was executed between the parties. Under the Addendum to Development Agreement the developer agreed to pay a further sum of Rs. 14  00  000/- to the owner of the land inasmuch as the owner of the land was unnecessarily obstructing the development work in the premises. After the development took place the complainant was given possession of the portion of hall room on the ground floor situated at the northern side of the landed property along with a unit flat at the top thereof at the first floor as per the registered development agreement entered into between the parties. However   the complainant has been demanding to execute a deed of conveyance in his favour with respect to such portion and inasmuch as the complainant is the owner of the premises in question including the portion of the ground floor and the portion of the first floor which has been allotted to her   the question of developer who is not the owner of the property transferring the property to the actual owner of the land by way of a registered deed of conveyance does not and cannot arise at all and if the deed of conveyance is actually executed between the parties herein in respect of such portion of the property   the vendor of such deed of conveyance and the purchaser of such deed of conveyance will be one and the same person i.e. the complainant herein and the developer will be a confirming party. However   in law such deed cannot be executed at all and as such the deed of conveyance cannot be executed inasmuch as the same is impossible to be executed in law. Thus   the present case is liable to be dismissed with exemplary cost.

Issues/points for consideration

On the basis of the pleading of the parties   the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite parties heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction   cause of action and whether complainant is a consumer in the eye of law   are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version   have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point   jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Tarakeswar   Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover   this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus   the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover   u/s 11 of the Consumer Protection Act   this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act   1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act   2019 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act   2019. Complainant is a consumer in the eye of law. It is the settled principle of law that a consumer invoking the jurisdiction of the District Commission can seek such relief as he or she considers appropriate. This legal principle has been observed by Hon ble Apex Court in the case of Experion Developers Pvt. Ltd. vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824.

All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus   the above noted three points of consideration are decided in favour of the complainant.

The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions   there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that the complainant owned and possessed absolutely the bastu land measuring about 0.5 acre or 3 cattah18 sq.ft. of land.
2. It is also admitted fact that the said bastu land of complainant situated at RS Dag no. 733/796 and LR Dag no. 808 (P) of Mouza Bhata at the Tarakeswar.
3. There is no controversy over the issue that the said land is situated under word no. 10 of Tarakeswar Municipality.
4. There is no dispute over the issue that the complainant purchased the said land from Smt. Susama Adak   w/o Paresnath Adak of Tarakeswar vide sale deed no. 659 of 1997 registered at Haripal Sub-Registry office.
5. It is admitted fact that thereafter the complainant mutated her name in the Tarakeswar Municipality.
6. It is also admitted fact that the complainant for the purpose of development of the said land and construction of a multistoried building contracted with op   partnership firm.
7. There is no controversy over the issue that thereafter one agreement for development dt. 20.11.2014 was executed in between complainant and ops.
8. There is no dispute over the issue that the said agreement for development was registered at ADSR office at Tarakeswar vide deed no. 2826 of 2014.
9. It is admitted fact that all the terms and conditions have been embedded in the said development agreement.
10. It is also admitted fact that the valuation was assessed as Rs. 43  33  234/- only and stamp duty was paid.
11. There is no controversy over the issue that thereafter the complainant executed registered power of attorney in respect of A schedule property.
12. There is no dispute over the issue that as per agreement ops intended for setting up (G+4) multistoried building and commercial flats as per sanctioned plan of Tarakeswar Municipality.
13. It is admitted fact that the ops agreed to provide one hall room measuring about 800 sq.ft at the ground floor and another equal area of 800 sq.ft at that 1^st floor with two numbers of bed room with dinning space   kitchen   toilet and verandah as per schedule ‘B  of complaint petition.
14. It is also admitted fact that according to the terms and conditions of the development agreement the ops supposed to complete the said multistoried (G+4) building within 2 years from the date of the receipt of sanctioned plan from Tarakeswar Municipality.
15. There is no controversy over the issue that in case of delayed delivery of allotted units the op was bound to pay liquidated damage @ 20% over the constractable value.
16. There is no dispute over the issue that the op thereafter entered into another settlement for construction of basement are and to that effect one   addendum   to the development agreement dt. 2.3.2017 which was notarial was executed between the parties.
17. It is admitted fact that for the purpose of construction as per   addendum   the op agreed to pay Rs. 14  00  000/- by installment to the complainant.
18. It is also admitted fact that the op developer failed to complete the said construction within time.
19. There is no controversy over the issue that thereafter the complainant issued several legal notice to the ops and also approached to the office of Assistant Director   Hooghly   Department of Consumer Affairs & Fair Trade Practices for settlement but ops have not appeared in the said settlement proceedings.
20. There is no dispute over the issue that op developer has handed over possession of the area and/ or unit to the complainant but no sale deed has been executed and registered.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act. There is no necessity of passing any separate judgement over the above noted admitted facts.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant alleging that she received the possession of schedule B property as per complaint petition but the op   developer has not yet execute and register any deed of conveyance in respect of the B schedule property but in this regard the op   developer has adopted the plea that the complainant/ petitioner had already received the possession of the B schedule property and she was the owner of the said property and she is bound to pay the stamp duty and registration cost which has not been paid by the complainant for which the op   developer has failed to execute and register the said deed of conveyance.

         For the purpose of arriving at just and proper decision over this issue this District Commission after going through the evidence on record and making scrutiny of the materials of the case record finds that the complainant is in possession of the B schedule property but no deed of conveyance has yet been executed or registered by the op   developer.

         Now the question is whether op   developer is bound to execute and register the deed of conveyance or not? Over this issue the decision of the Hon ble Apex Court which has been passed in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor and it is reported in AIR2022SC1824. Similar views has also been adopted by Hon ble Apex Court in the case of Ghaziabad Development Authority vs. R.B. Sharma and it is reported in 2004 (3) CPR 92. Thus   it is crystal clear that op   developer is bound to execute and register the deed of conveyance otherwise he is liable to refund the entire amount with interest @ 9% per annum.

          A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration framed in this case and so she is entitled to get relief which she has prayed in this case.

In the result it is accordingly

ordered

that the complaint case being no. 9 of 2021 be and the same is allowed on contest but in part.

            It is held that the complainant is entitled to get an order directing the ops to execute and register necessary deed of conveyance in respect of the B schedule property subject to the payment of stamp duty and registration cost by the complainant within 45 days from the date of this judgement otherwise the ops equally shall pay Rs. 36  80  000/-  along with interest at the rate of 9% per annum from the date of filing of this case to the complainant within the period of 45 days from the date of this judgement. It is also held that the complainant is entitled to get compensation and/ or damage of Rs. 5  00  000/- and also litigation cost of Rs. 10  000/- from the opposite parties.

Opposite parties are directed to carry out the above noted direction within 45 days from the date of this judgement otherwise complainant is given liberty to execute this order as per law.

            In the event of nonpayment/ non compliance of the above noted direction the opposite parties are also directed to pay and/ or deposit Rs. 10  000/- in the Consumer Legal Aid Account of D.C.D.R.C.   Hooghly which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.