Date of Filing : 30 January, 2023.
Date of Final Order : 09 August, 2024.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This complaint under Section 35 of the Consumer Protection Act, 2019, the Act, has been filed by Sri Partha Mukherjee, resident of 137, B. N. Das Road, Chandan Nagar, Hooghly, for short the Complainant, against M/s. Ganguly & Ganguly Enterprise of 20, Bireswar Chatterjee Street, Bally, Howrah-711201, its proprietor: Mr. Purna Chandra Ganguly (Ganguli is written in the sale agreement) of 22/1, Dr. Priya Nath Ghosh Road, Howrah-711201, herein after called as Opposite Party or OP, alleging deficiency in service occurred from the part of the OP arising out of non-execution and non-registration and not handing over of the flat which the complainant was intended to purchase in accordance with the Agreement for Sale and praying for relief as under:-
In the light of the facts and circumstances as enumerated in the complaint petition, it is humbly prayed that this Hon'ble Commission may graciously be pleased to:-
Direct the Opposite Party to hand over absolute possession of the schedule-mentioned residential flat and execute and register the same in favour of the complainant upon paying the cost of stamp Duty etc. by the OP;
Direct the Opposite Party to pay ₹5,00,000/- as liquidated damage to the complainant for non-delivery of possession;
Direct the Opposite party to pay ₹5,00,000/- for mental harassment, agony caused to the complainant including deficiency in service and negligence from the part of the OP
Direct the Opposite Party to pay ₹3,00,000/- to the complainant for legal expenses and other incidental costs;
And: Further relief/reliefs as this Commission may deem fit and proper.
Succinctly put, facts as emerged from the complaint petition and the annexed documents are that the complainant entered into an agreement for sale on 26/03/2018 with the OP intending to purchase one residential flat at 4th floor, numbered as 402, measuring about 271 sq ft covered area in a proposed G+4 storied building at the premises at Holding No. “previously” 27, G. T. Road, corresponding to Dag No. 9227, Khatian No. 9785 at Mouza Bally, J.L. No. 14, Bally, Howrah, for a total consideration of ₹5,00,000/-. Complainant paid ₹3,00,000/- before execution of this sale agreement and it was decided that the OP would hand over possession of the scheduled flat to the complainant within 18 months from the date of building plan sanctioned by the concerned authority. After the lapse of 18 months from the date of execution of the sale agreement complainant repeatedly requested the OP to hand over possession of his flat and execute and register it in his favour after taking balance consideration, but every time the OP avoided his plea, even the entire project has not been completed by the OP till filing this case. He has issued several notices to the OP but the OP did not pay any heed to his notices. He met the OP and their representatives with his requests which remained fruitless. Finding to other alternative to redress his grievances complainant filed this instant complaint before this Commission praying as stated herein above.
Complainant filed copies of (i) Agreement for Sale dated 26/03/2018 which was notarised on 28/03/2018, (ii) 3 (three) letters issued by the complainant himself as an Advocate to the OP on 06/04/2022, 29/06/2022 and 23/11/2022 and (iii) one letter dated 18/06/2022 issued by the OP’s Advocate as annexure to the complaint petition. Before delivering the final order complainant filed, when directed, copy of the registered Power of Attorney executed on 26/02/2018.
OP was noticed after admission of the complaint. None appeared on behalf of the OP nor had filed any written version to contest the case and thereby the case proceeded ex parte. Then the complainant filed his Brief Notes on Argument but did not file any Evidence of Affidavit. At the later stage he filed his evidence on affidavit. Argument is heard in full from the part of the complainant. We have now come to the position to deliver the Final Order in this case. We have to decide:
(A) Whether the complainant is a consumer?
(B) Whether there is any deficiency in service caused by the OP? and
(C) Whether the complainant is entitled to get any relief/reliefs as prayed for under the Act?
Let us take these questions together in our discussion to avoid repetition.
DECISION WITH REASONS
It is an admitted fact that the complainant had entered into an agreement for sale with the OP intending to purchase a 4th Floor residential flat measuring 271 sq. ft. covered area being numbered as 402 in the premises at 27, G. T. Road, Bally, Howrah – 711201, for a total consideration of ₹5,00,000/-. This agreement was executed on 26/03/2018 and the complainant paid ₹3,00,000/- to the OP before this execution. Dates of payment of this amount have not been mentioned anywhere. According to this sale agreement the OP was bound to hand over possession of the scheduled flat to the complainant within 18 months from the date of building plan being sanctioned by the concerned authority. Complainant alleged that the after expiry of sufficient time he approached to the OP and his persons and requested them to hand over possession of his flat after taking the balance consideration and also requested to execute and register this flat in his favour, but every time the OP avoided his duty thereby causing deficiency in service and unfair trade practice has been occurred from the part of the OP and hence this instant case has arisen.
As the OP did not take part in contesting this case, so we have no alternative version in this matter but to rely on the statement written in the complaint and on the evidence and the BNA filed by the complainant and also we have to rely on the documents filed by the complainant before finalising our decision.
A careful scrutiny of the complaint petition reveals that the complainant urged to execute and register the subject flat at the cost of the OP, and for this he relied on Clause – 3 written in Page – 8 of the Sale Agreement dated 26/03/2018. But a thorough reading of this Clause reveals the contrary to that of the statement of the complainant as this Clause reads as:
“ 3) That the Vendor as well as Developer will execute and register the final Deed of Sale at his own cost in respect of the ‘B’ Schedule flat in favour of the Purchaser of the Second Part on receiving total amount of consideration of ₹5,00,000/- in the aforesaid manner.” Complainant failed to realise the meaning of ‘as well as’.
Moreover, Point No.– 16 under the Head: SPECIFICATION OF CONSTRUCTION, in Page No. – 13, of the aforesaid agreement reads as:
“ 16. TRANSFER AND REGISTRATION – The cost and expenses for preparing agreement, Sale Deed, Stamping, Registration Solicitors / Advocate Fees, other duties and charges as applicable on the date of transfer shall be on account of the purchasers through the developer.” [Emphasis supplied.]
Here the complainant, though he is an ‘Advocate of Calcutta High Court’, has failed to assimilate the meaning of using the word “shall” in the aforesaid Point No.-16.
A close compare of the Agreement for Sale dated 26/03/2018 to that of the Power of Attorney registered on 26/02/2018 executed between the Vendors/Land-owners and the OP represented by its proprietor as stated herein above, reveals that the Power of Attorney were given by 21 (twenty one) Executants/Land-owners whereas there were 20 (twenty) names of Land-owners written as First Part in the Agreement for Sale. So a name was missing in the sale agreement and it is found that the name of Smt. Mukul Ganguly, W/O Late Rabindra Nath Ganguly, is missing. The sale agreement has stated nothing on this missing and the complainant has not taken any note on such missing though he is an Advocate.
It is stated in the said sale agreement in Page-7 that:
“ … and the Developer/ Confirming Party is yet to obtain a sanction plan of G+4 building in the name of the Owners from the Howrah Municipal Corporation and the developer is yet to raise the said G+4 i. e. five storied building on the basis of the aforesaid Agreement for Development, Power of Attorney and as per sanctioned plan.” [Emphasis supplied.]
But in the Power of Attorney registered on 26/02/2018, which the complainant filed lately when asked for, states in Point No.-6 in Page – 4 that:
“6. To negotiate for sale, enter in agreement for sale or cancel or repudiate the same in respect of the entire newly constructed G+3 building deducting the owner’s allocated flats with their respective area allocation of the Developer.” [Emphasis provided.]
These two documents state that the OPs were given the Power of Attorney to construct a ‘G+3’ storied building whereas the OPs entered into an Agreement for Sale with the Complainant/Purchaser for selling a flat at the Fourth Floor of a ‘G+4’ storied building. As the complainant failed to submit any document relating to raising extra floor by the OP/Developer, so a question of doubt now crops up in our mind about the legality of constructing another floor above the proposed G+3 building and the complainant intended to purchase his flat at the 4th Floor.
A Building Plan duly sanctioned by the concerned authority is the most essential part in purchasing a flat in a multi-storied building. As the complainant himself is an Advocate, so he should have to emphasise in obtaining copy of sanctioned plan before claiming execution and registration of his flat. In his complaint petition as well as in his Evidence and BNA, the complainant never bothered about this essentiality, nor did he claim the Possession Letter or Completion Certificate/Occupancy Certificate from the OP. Interestingly complainant stated in his complaint petition in Paragraph No. E in page – 3 as:
“ E) That the date of completion of the said project was as per the agreement within 18 months from the date of sanctioned plan from Bally Municipality.” [Emphasis supplied.]
But, the Bally municipality was merged with the Howrah Municipal Corporation vide notification no. 428/MA/O/C-4/IM-36/2014, dated 26th June 2015, well before execution of the instant sale agreement.
Moreover, complainant demanded execution and registration of the Sale Deed in his favour, but he has not included the land-owners as the necessary parties in the Cause Title of his complainant petition. The Power of Attorney has not stated anything about the absolute power of the OPs for such execution and registration.
In the end, we hold that the complainant is a ‘Consumer’, as is defined under Section 2(7) of the Consumer Protection Act, 2019 who intended to avail ‘Service’, as is defined under Section 2(42) of the Act, of the OP in the form of housing construction against a consideration. But all the above noted discussions, especially the legality of construction of extra floor beyond the agreed construction, in which floor the complainant was intended to purchase his flat, i. e. in the 4th Floor, together with the non-supplying the sanctioned building plan lead us to keep our hands folded. These discussions refrain us from awarding any relief to the complainant and we think the instant case is liable to be dismissed for non-joinder of necessary parties, misrepresentation of facts and without adducing any valid document in support of construction of extra floor in which floor the complainant was intended to purchase his flat and with no cost.
It is, therefore,
ORDERED
that the complaint Case No. CC/26/2023 be and the same is dismissed ex parte against the Opposite Party and without any cost.
Let a copy of this order be issued to all the parties of both sides free of cost.
Dictated and corrected by me
Member.
