Date of Filing              :  12 July 2019.

Date of Judgement     :  02 November 2022.

Mr. Dhiraj Kumar Dey,   Hon’ble Member.

            The instant case arises when Smt. Rita Nag, the Complainant, filed a complaint U/S 12 of the Consumer Protection Act, 1986, herein after called the said Act, against 1) M/s. Anjali Construction, having its sole proprietor Sri Subhendu Indu, 2) Sri Anil Kanti Das and  3) Sri Sunil Kanti Das  (herein after called as Opposite Parties or O Ps) alleging deficiency in service on their part.

            Succinctly put, complainant’s case is that while searching for a residential flat she came in contact with the O. P. No. 1 Company’s proprietor. Having allured by the assurance of the proprietor of the O P – 1 company, complainant agreed to purchase a flat of 1050 sft super built up area in the first floor of the building to be constructed by the O. P. – 1 company at 49 & 49/2, Santigarh Colony, P. O. + P. S. – Jadavpur, Kolkata –700 040, at a total consideration of Rs.7,03,500/.  An Agreement for Sale was made between the Complainant, O. P. – 1 and O. P. Nos. 2 & 3, on 13.03.2006 which was subsequently registered on 03.07.2006.  O. P. Nos, 2 & 3 are the owners of the land where the building was to be constructed.  Before signing the Agreement for Sale complainant paid Rs.6,75,000/- to O. P. – 1 company and the balance consideration of Rs.28,500/- was decided to be paid during execution of the Deed of Conveyance. Formal possession letter was issued by the O. P. – 1 company on 27.09.2006 but the complainant found the subject flat is incomplete which is when informed the O. P. – 1 assured that all the defects would be removed prior to execution of Final Sale Deed. Complainant was in peaceful possession of the flat inducting paying guest.   O. P. – 1 advised to sale the flat to his man in higher price.  Complainant’s husband became ill, taking advantage of the situation O. P. – 1 took possession of the flat and handed over to a third party in the year 2009.  Complainant several times requested O. P. – 1 to hand over Possession Certificate, Completion Certificate of the building and for execution of Final Sale Deed after taking the balance consideration.  But every time O. P. – 1 blamed O. Ps. – 2 & 3 and O. Ps. -2 & 3 blamed O. P. – 1 for non-execution of Final Sale Deed. Complainant’s husband died in 2012.  Eventually on 29.01.2019 Complainant sent a legal notice through her Ld. Advocate to all the O. Ps. for execution of the Deed of Conveyance, physical possession and completion certificate.  The O. Ps. 2 & 3 allegedly refused to receive the notice and O. P. – 1, after receiving the notice replied on 01.02.2019 expressing their willingness to execute the Sale Deed. But that could not be happened and finding no other way complainant filed the instant complaint before this Commission praying for execution of Sale Deed in her favour by the O. Ps., alternatively through this Commission, together with physical possession and completion certificate in respect to the subject flat, payment of Rs. 1,00,000/- for mental agony and harassment, compensation of Rs. 50,000/- for negligent and deficient work, Rs.30,000/- as litigation cost, Rs.20,000/- for arrear KMC Taxes and such other relief or reliefs as this Commission thinks fit.

            The Complainant submitted copy of the Agreement for Sale made on 13.03.2006 as annexure to the complaint.

            On perusal of records it appears that after receiving the notice O. P. Nos. 2 & 3 appeared before this Commission and jointly submitted their Written Version in respect of the complaint but O. P. – 1 did not turn up.  Complainant then amended her complaint by just adding the second address of O. P. – 1 and subsequently O. P. – 1 appeared before this Commission and submitted their Written Version.  Thereafter O. P. Nos. 2 & 3 never attended this Commission.  Complainant prayed to treat her complaint as evidence and both the complainant and O. P. – 1 did not put any questionnaires and ultimately arguments were heard.  Complainant and O. P. – 1 submitted their respective brief notes of arguments.

      The only points required to be determined here are whether there is any deficiency in service occurred by the O. Ps. and whether the complainant is entitled to the reliefs as prayed for.  These two points are taken together for the sake of convenience and brevity.

   All the documents submitted in support of the complaint are taken into consideration for decision.

Decision with reasons

            It is an undisputed fact that the Complainant paid an amount of Rs. 6,75,000/- to O. P. – 1 company before signing the Agreement for Sale on 13.03.2006 intending to purchase the subject flat and it is reflected in the Memo of consideration  of the Agreement for Sale.   Later O. P. – 1 issued possession letter on 27.09.2006 and the complainant got peaceful possession of the flat.  This fact makes it clear that the complainant is a consumer to the O P – 1 as defined in the Consumer Protection Act, 1986 / the C P Act, 2019.

            On careful scrutiny of the Agreement for Sale we find that O. P. No. 2, namely Sri Anil Kanti Das got possession of S. P. No. 49/2 in C. S. Plot No. 1136(P) in Mouza Chandipur, J. L. No. 41 under Jadavpur Police Station comprising of 540 sft of land through a Gift Deed by the Government of West Bengal and it was registered on 31.12.2002.  Similarly, O. P. No. 3, Sri Sunil Kanti Das, got possession of S. P. No. 49 in C. S. Plot No. 1136(P) in Mouza Chandipur, J. L. No. 41 within Jadavpur P. S. comprising of 5 Chittacks 5 sft of land through a Gift Deed by the Government of West Bengal and it was registered on 31.12.2002.  Thereafter they mutually amalgamated their lands on 01.01.2004 for which total land became 790 sft comprised in S. P. Nos. 49 and 49/2 in C. S. Plot No. 1136(P) in Mouza Chandipur, J. L. No. 41 under Jadavpur Police Station.  Then O. P. Nos. 2 & 3 made an agreement on 19.01.2005 for development of the amalgamated plot with the O P – 1 company for construction of a four storied building.  Both the O. P. – 1 and O. P. Nos 2 & 3 specifically mentioned in their respective written versions that after amalgamation and after development agreement, O P – 1 constructed the building without any approval of Sanction Plan from the K M C authority.  So, according to them, question of sanctioned plan and completion certificate does arise.  The O. P. – 1 company stated in their written version that they were always ready to execute the Sale Deed but for the non-cooperation of the O. P. Nos. 2 & 3 this execution could not be made, whereas O. P. Nos. 2 & 3 stated in their written version that the complainant never approached to them for execution of the Sale Deed. The O. P. – 1 company also stated in their reply letter to the complainant’s Ld. Advocate on 01.02.2019 that knowing fully well about the nature of the land and manner of construction of the building, complainant agreed to purchase the subject flat and signed the Agreement for Sale after receiving copies of relevant documents. O. P. -1 and O. P. Nos. 2 & 3 expressed separately their willingness to execute the Sale Deed in favour of the complainant. 

            Now a question is arising in our mind whether this Commission will proceed to deal with the instant complaint arising out of purchasing a flat in a building which is constructed without necessary permission of the local authority and that on the land which is not transferrable within a specific time after receiving as a Gift?  Then came in our view the landmark decision reported in (1994) 1 SC 243, Lucknow Development Authority Vs. M. K. Gupta, where the Hon’ble Supreme Court Observed as under :

            “To begin with the preamble of the Act, which can afford useful assistance to ascertain legislative intention, it was enacted, ‘to provide for the protection of the interests of consumers’. Use of the word ‘Protection’ furnishes key to the minds of the makers of the Act.”

 Thus, keeping aside the legality of the construction, we only proceed with the point that there is some deficiency from the part of the opposite parties in rendering the desired service for which the complainant, being a consumer as defined U/S 2(1)(d) of the C. P. Act, 1986 [Sec. 2(7) of the C. P. Act, 2019], could not obtain the Sale Deed in her favour though almost the entire consideration has been paid.  So, there is a deficiency caused by the O Ps and the complainant is entitled to get relief.

             Now, we take the prayer of the complainant wherein she demanded physical possession of the flat and Completion Certificate of the building. Here we consider the Agreement for Sale wherein it is specifically stated, in Page 16, Clause 4, that Sale Deed will be executed and physical possession will be handed over ‘excluding’ Completion Certificate.  Nowhere in the submitted documents we found that the complainant demanded Completion Certificate from 27.06.2006, the date of acquiring formal possession of the flat, till 29.01.2019, the date on which she issued demand notice through her Ld. Advocate.  The Hon’ble State Consumer Disputes Redressal Commission, West Bengal, in its judgement in CC/129/2016 (Soumen Maity Vs. Subhas Das) states that :

 “It is trite law that the parties are bound by the terms of agreement.  When either of parties did not pick up any quarrel with the terms and conditions of the agreement, they are certainly bound to follow the terms and conditions contained in the agreement.”

            In a case reported in AIR 1996 SC 2508 (Bharti Knitting Co. -Vs.- DHL World Wide Express Courier Division of Airfreight Ltd., Civil Appeal No. 9057 of 1996) the Hon’ble Supreme Court has observed thus :

            “It is seen that when a person signs a document which contains certain contractual terms as rightly pointed out by Mr. R. F. Nariman, Ld. Sr. Counsel, that normally parties are bound by such contract; it is for the party to establish exception in a suit.  When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms of the contract or circumstances in which he came to sign the documents need to be established.  The question we need to consider is whether the District Forum or the State Commission or the National Commission could go behind the terms of the contract? It is true as contended by Mr. M. N. Krishanmani, that in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of contract based upon the fact situation and may grant remedy.  But each case depends upon its own facts. In an appropriate case where there is an acute dispute of facts necessarily the Tribunal has to refer the parties to original Civil Court established under the CPC or appropriate State law to have the claims decided between the parties.  But when there is a specific term in the contract, the parties are bound by the terms in the contract”.

            Thus in our opinion the complainant cannot have the right to claim the Completion Certificate of the building as this has been excluded in the Agreement for Sale and she failed to raise contention in this matter after signing the agreement until 29.01.2019 when she raised the issue for the first time.

            With regard to her claim of Rs. 20,000/- as arrear KMC Tax, it is to be reiterated here that she/complainant got possession of the subject flat on 27.09.2006.  She claimed that O P -1 took possession of this flat and handed over to a third party in the year 2009, but no document has been provided in support of her claim.  She herself stated that she had inducted paying guest after getting formal possession of the subject flat.  Both O P -1 and O P Nos. 2 & 3 stated in their written versions that the complainant has the possession till submission of their written versions.  Hence it is clear that the complainant is bound to pay KMC Taxes with effect from 27.09.2006.

            Thus this Commission thinks the complaint is partly maintainable on its merit and the Complainant has the right to get her grievance be redressed for such deficiency in service occurred from the part of the O.Ps. The complainant is entitled to get registered Deed of Conveyance/Sale Deed duly executed by the O. Ps. together with litigation cost as she is compelled to knock at the door of this Commission to have her desired Deed of Conveyance be executed and registered.

Hence, it is

            ORDERED

That the Complaint Case No. CC/341/2019 is partly allowed on contest.  O. Ps. are directed to execute the Deed of Conveyance in favour of the complainant subject to realisation of balance consideration. Cost of registration of the Deed will be borne by the complainant. The O. P No. 1 is directed to pay Rs. 5,000/- and O. P. Nos. 2 & 3 are directed to pay jointly Rs. 4,000/- to the complainant as litigation cost. 

These should be done within 60 days from the date of this order.