No. 5/09.09.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

This appeal is by the Complainant against the order of dismissal of his complaint.  Evidently by a tripartite agreement dated 15.08.2008 by and between the Developer, Complainant and respective land owners the Complainant agreed to purchase the scheduled flat upon payment of consideration in the manner as provided in the said agreement.  It is not in dispute that the Complainant has paid the major portion of the consideration money and has obtained delivery of possession of the scheduled flat from the Developer – O.Ps while there is some due in respect of such consideration.  It has been alleged in the above complaint case that the Developer – O.Ps in spite of repeated requests have failed to execute and register the Deed of Conveyance in respect of the said flat in favour of the Complainant upon receipt of the balance consideration money.

Most interestingly the Developer – O.Ps have contested the said complaint case by contending that as the Complainant has been using the said flat for commercial purpose instead of residential purposes as agreed between them so the execution and registration of the Deed in question have not been completed by the O.Ps.

The Forum below has dismissed the complaint upon finding that there has been no deficiency of service on the part of the Developer – O.Ps for non-execution and registration of the Deed of Conveyance in question as the Complainant – Purchaser has failed to use the scheduled flat for his residential purposes.

We are of the view that the said question is not germane for the purpose of deciding whether there has been deficiency of services by the Developer – O.Ps for non-execution and registration of the Deed of Conveyance in respect of the flat in question in terms of the aforesaid agreement for purchase.  That apart the said agreement on its face clearly shows that the agreement was a tripartite agreement by and between the Purchaser, Developers and the land owners.  Upon reading of the said agreement it is also clear that the disputed flat was to be sold to the Complainant – Purchaser upon development of the land of the land owners by the Developer – O.Ps by making construction thereon.  In fact the Developers have made the development of the land in question of the landowners by constructing a building comprising of several flats and have delivered possession of the disputed flat to the Complainant – Purchaser.  Now for the purpose of conveying right, title and interest in the said flat to the Complainant an appropriate Deed of Conveyance has to be executed by and between all three parties to the agreement as aforesaid.  The said Deed of Conveyance could not be effectively executed and registered in favour of the Complainant – Purchaser by the Developer – O.Ps in the absence of landowners unless there has been clear authority and sanction in law to transfer the disputed flat in favour of the Complainant – Purchaser by the Developer – O.Ps on behalf of the said land owners too.  For the reasons as aforesaid we are of the view that the complaint case has not been properly framed by impleading the landowners as parties to the same.  The framing of the complaint case has been made improperly.  Regard being had to the allegation made in the complaint and considering the facts and circumstances of this case and also by following the principle of law initiated in this regard we are of the view that the Complainant is a consumer in relation to the aforesaid agreement for purchase of the disputed flat in question and entitled to the relief sought for irrespective of the fact of user of the flat for not residential purposes. 

We, therefore, set aside the impugned judgement and order and sent the complaint case back on remand for fresh trial on merit in presence of all three parties to the said agreement.  The Complainant will implead the landowners as parties to this complaint case.  This order be communicated to the Forum below.  The Complainant will make application for amendment of the complaint petition immediately hereafter preferably with a period of 30 days from this date.  The appeal is thus disposed of.