Date of filing – 09.12.2014
Date of final hearing – 26.10.2017
The instant complaint under Section 17 (wrongly mentioned under Section 12) of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of an intending purchaser against the developer and its partners (Opposite party nos. 1 to 3) and the legal heirs of the original landowner Laxmi Moni Roy, since deceased, (OP nos. 4 to 6) on the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.
In a capsulated form, the Complainant’s case is that on 23.09.2010 he entered into an Agreement with the Opposite Party no.1 and Laxmi Moni Roy, predecessor in interest of OP nos. 4 to 6 represented by lawful constituted Attorney Holder – Basudeb Sarkar and Mohan Das to purchase of a residential flat measuring about 1000 sq. ft. more or less super built up area on the 2nd floor and a car parking space of 120 sq. ft. more or less on the ground floor in a four storied building lying and situated at Premises No.233A/2/1, Netaji Subhas Chandra Bose Road, P.S.- Netaji Nagar, Kolkata – 700092 at a total consideration of Rs.27,00,000/-. The complainant has stated that he has already paid Rs.25,25,000/- to the developer as part consideration amount out of the said total consideration amount. On payment of the same, in June, 2014 the possession of the flat was handed over to him. But the OPs failed and neglected to execute the register Deed of Conveyance. Hence, the complainant has approached this Commission with prayer for direction upon the OPs to execute and register a Deed of Conveyance in favour of him on receipt of balance consideration amount of Rs.1,75,000/-, to pay compensation of Rs.2,00,000/- and litigation cost of Rs.25,000/-.
The OP nos. 1 to 3/developer and its partners by filing a written version have stated that in terms of the Development Agreement and General Power of Attorney, they have constructed the building and obtained Completion Certificate from the Kolkata Municipal Corporation and ready to execute and register the Sale Deed in favour of the complainant and as such there is no deficiency in rendering services on the part of them.
The OP no.4 by filing a separate written version has stated that his mother Laxmi Moni Roy died on 08.05.2011, who during her life time executed a Will on 03.12.2009. The answering OP being a legatee in respect of the same has filed one Act XXXIX Case No.188/2015 before the District Delegate, Alipore for grant of letter of administration to the estate of Laxmi Moni Roy and as such the OP no.4 has no legal right to execute the Deed of Conveyance in absence of probate of the last Will and Testament of erstwhile owner Laxmi Moni Roy.
The complainant has tendered evidence through affidavit. He has also given reply against the questionnaire set forth by his adversaries.
The OP Nos. 1 to 3 and OP No.4 have adopted their written versions as evidence on their part. The OP Nos. 1 to 3 and OP No.4 have given reply against the questionnaires put forward by the complainant. Besides oral evidence, the parties have relied upon some documents.
Undisputedly, one Smt. Laxmi Moni Roy was the owner in respect of a premises lying and situated at Premises No.233A/2/1, Netaji Subhas Chandra Bose Road, P.S.- Netaji Nagar, Dist-South 24 Parganas Kolkata – 700092 within the local limits of Kolkata Municipal Corporation. During her life time, Smt. Laxmi Moni Roy, landowner had entered into an agreement with the OP no.1/developer on 12.11.2008 for development of the property through the authorised constituted attorney. On the basis of the authority entrusted upon them, the OP no.1/developer represented by OP nos. 2 & 3 as it partners entered in to an Agreement for Sale with the complainant in respect of a residential flat measuring about 1000 sq. ft. more or less super built up area on the 2nd floor and a car parking place of 120 sq. ft. on the ground floor in a proposed four storied building lying and situated at Premises No.233A/2/1, Netaji Subhas Chandra Bose Road, P.S.- Netaji Nagar, Kolkata – 700092, Dist-South 24 Parganas within the local limit of KMC at a total consideration of Rs.27,00,000/-. It is not in dispute that out of total consideration amount, complainant has paid Rs.25,25,000/- as part consideration amount leaving only a balance consideration amount of Rs.1,75,000/- which the complainant is ready and willing to pay.
The OP nos. 1 to 3/developer has constructed the building and it is evident that they have obtained Completion Certificate from the KMC on 30.01.2013. The developer is ready and willing to execute the Sale Deed in favour of the complainant subject to payment of balance consideration amount of Rs.1,75,000/-.
Now, the OP no.4 i.e. the son of deceased Laxmi Moni Roy is standing in the way of execution of Sale Deed in favour of the complainant on the ground that his mother during her lifetime executed a Will appointing him as legatee and unless the said Will is probated, execution of Sale Deed cannot be done. The materials on record go to show that Laxmi Moni Roy died leaving behind her one son (OP no.4) and two daughters (OP nos. 5 & 6).
Ld. Advocate for OP no.4 has submitted that OP no.4 has filed an Act XXXIX Case being No.188/2015 for grant of letter of administration to the estate of Laxmi Moni Roy, since deceased and unless the Will is probated, complainant is not entitled to get the Deed executed in favour of the complainant. In support of his submission, Ld. Advocate for OP no.4 has placed reliance to the last sentence of Paragraph-12 of the decision of National Consumer Commission reported in II (2006) CPJ 200 (Dinesh Premji Shah – vs. - S.N. Pathak).
In Paragraph – 12 of the referred decision, the Hon’ble National Commission has observed thus:- “Consumer Protection Act, 1986 provides only an additional remedy but does not confer jurisdiction on a Consumer Forum to act as an appellate body to exercise powers which do not emanate from the Act constituting it”. The referred decision does not have any conflict with the decision of the Hon’ble National Commission reported in 2014 (4) CPR 681 (Indrani Chatterjee & Anr. – vs. – AMRI Hospitals, through its Management) wherein it has been observed – “As a matter of fact, having regard to the object and intent of the Act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature. The question of double jeopardy, self-incrimination or the binding effect of the findings in summary proceedings under the Act, does not arise on facts, at hand.. ......”.
From the evidence on record, it is quite apparent that Laxmi Moni Roy during her life time appointed OP no.1/developer to develop the property belonged to her. In accordance with the said Development Agreement and the supplementary agreement dated 30.11.2009, the OP Nos. 1 to 3 have constructed the building and obtained Completion Certificate from the KMC on 30.01.2013. The OP Nos. 1 to 3 are ready and willing to execute the Sale Deed in favour of the complainant on receipt of balance consideration amount of Rs.1,75,000/-. It is also evident that Laxmi Moni Roy passed away leaving behind her one son – OP no.4 and two daughters – OP nos. 5 & 6 respectively. Laxmi Moni Roy died on 08.05.2011 but the OP No.4 was sitting idle till 2015 and when the complainant lodged the complaint before this Commission under the purview of the Act, OP No.4 in order to cause delay of execution of Sale Deed has filed the case for grant of Latter of Administration being Act 39 Case No.188 of 2015 before the Ld. District Delegate at Alipore. It is well settled that a person, who inherits the property and enjoys the usufructs of the same must also bear the brunt of it and there is no scope to avoid the liability of his/her predecessor-in-interest.
Therefore, keeping the avowed object behind the legislation of the Act and taking into consideration the facts and circumstances, I am of the view that the complainant is entitled to get an order for execution of Sale Deed in his favour on payment of balance amount and in the process the proceeding of Act 39 case would not be a stumbling block in obtaining an order from this Commission. Since I do not find any deficiency on the part of the developer, there will be no order as to compensation or as to costs against the developer. However, despite an earlier order passed in CC/328/2014 by this Commission, the OP No.1 has not changed his complexion and vehemently opposing the prayer of a ‘consumer’ who hired the services of OP Nos. 1 to 3 on payment of consideration at the instance of Laxmi Moni Roy, mother of OP No.4 and as such I think the OP No.4 must bear compensation which I quantify at Rs.1,00,000/- and also litigation cost which I assess at Rs.10,000/-.
Consequently, the instant complaint is allowed on contest against OP Nos. 1 to 3 on contest and exparte against OP Nos. 5 and 6 without any order as to costs but on contest with costs against OP No.4.
The OPs are jointly and severally directed to execute the Sale Deed in respect of the flat as mentioned in the Agreement for Sale dated 23.09.2010 within 30 days from date on payment of balance consideration of Rs. 1,75,000/- by the complainant in favour of OP Nos.1 to 3/developer otherwise the complainant may get the Sale Deed executed in his favour through the machinery of the Commission and in that event, the balance amount of Rs.1,75,000/- will be deposited in this Commission through a Bank Draft for fixed deposit presently for one year . The OP No.4 is further directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- totalling Rs.1,10,000/- in favour of the complainant within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of this order to the parties to the case forthwith free of cost for information and compliance.
