SAMIKSHA BHATTACHARYA, MEMBER
The instant complaint petition has been filed by the complainant under Section 17(1)(a)(i) of the CP Act, 1986 against the OPs alleging deficiency in service.
The facts of the case, in brief, are that the complainant entered into an agreement for sale on 18th June, 2001 with the OPs for purchasing a flat being Flat No. 14 measuring super built up area of 900 sq. ft. more or less on the third floor of the five storied building namely “North Plaza” at 10 Umakanta Sen Lane, Kolkata 700030 for a consideration of Rs.8,00,000/- only. The OP No. 1 is the construction company represented by its directors being OP No. 2 and OP No. 3. Other opposite parties are the land-owners of the land in question where the multi storied building was constructed. The land-owners applied for a sanctioned building plan before the then Calcutta Municipal Corporation and on 15.12.1999 the land-owners obtained a sanctioned building plan being SL No. 94 dated 15.12.1999 thereafter the land-owners duly entered into an agreement for development on 26.07.2000 with the OP No. 1 to 3 and corresponding to that agreement for development the landowners executed a registered general power of attorney in favour of the OPs No. 1 to 3 which was registered in the Office of the ARA, Calcutta. Thereafter, the OPs No. 1 to 3 started construction work of the said proposed multi storied building complex on the said premises described in the first schedule of the petition of complaint at the cost and expenses of the developer and during the proceeding of construction work, the developer i.e., the OPs No. 1 to 3 were seized and possessed of and/or otherwise well and sufficiently entitled to that self-contained residential flat of the allocated portion of the developer and according to the terms and conditions of the agreement for development, the OPs No. 1 to 3 declared to sell the Flat No. 14 measuring about 900 sq. ft. super built up area situated on the 3rd floor of the 5 storied building namely, “North Plaza”.
Accordingly, the complainant entered into an agreement for sale on 18.06.2001 with the OPs No. 1 to 3 and the value of the flat was decided at the tune of Rs.12,00,000/-. As per terms and conditions, the complainants paid entire consideration of Rs.8,00,000/- for the flat in question to OPs No. 1 to 3 and complainant had some extra specified work and for that OPs No. 1 to 3 charged Rs.4,00,000/- for the same. The complainant also paid Rs.4,00,000/- to the OPs No. 1 to 3. Therefore, the complainant paid Rs.12,00,000/- in total to the OPs No. 1 to 3. The payment of Rs.8,00,000/- was paid through number of cheques, for the extra work, the complainant paid Rs. 4,00,000/- to OPs No. 1 to 3 by cash. As per agreement, the OPs No. 1 to 3 would handover the possession of the flat to the complainants within February, 2002 and upon handing over the possession of the flat the registration of necessary deed of conveyance in connection with the said flat be completed by the complainant/purchaser within 3 months. But unfortunately, the OPs No. 1 to 3 delayed for such construction and at last OP No. 1 to 3 physically handing over the possession of the suit property to the complainant on 10.03.2003. Therefore, the complainant was handed over the possession of the suit property after a year and for expense of Rs.72,000/- as monthly rent to the landlord. After 2003, the complainant requested the OPs No. 1 to 3 several times to register the deed of conveyance, but the OPs No. 1 to 3 failed a neglected to do so. After a long period, complainant sent a legal notice dated 29.07.2013 addressing the OP No. 2 for arrangement of the registration procedure. The OPs No.1 to 3 did not replied for that initially. But after a month on 29.08.2013 the complainant sent another notice to the OPs No. 1 & 2, and then the Director of OP No. 1 company, the OP No. 2 assured the complainant to prepare legal formalities for registration. Being assured from the OPs No. 1 to 3, the complainant made the valuation of the ‘suit property’ by filing an application of query before the ADSR, Sealdah on 28.04.2014 and obtained the valuation of the flat i.e., Rs.31,50,000/-. After obtaining the market value of the suit property the complainant requested the OPs No. 1 to 3 for the registration of the deed of conveyance of the suit property but OPs No. 1 to 3 further and again willfully failed and neglected to register the same and assured that they would execute and register the deed of conveyance of the suit property in the beginning of 2015. In the month of March 2015, the complainant again requested the OPs No. 1 to 3 for registration of the suit property. The OPs No. 1 to 3 failed to do the same. Lastly, in the month of October, 2016, the OPs No. 1 to 3 committed to register the suit property within December, 2016. After such consequences, having no other alternative, the complainant sent another legal notice dated 13.07.2018 to OPs No. 1 to 3. But the legal envelope containing legal notice returned to the Ld. Advocate of the complainant.
Hence, the complainant has stated in her petition that the acts of the OPs No. 1 to 3 are unfair trade practice and the OPs No.1 to 3 are negligent in completing the registration procedure of the suit property. OPs No. 1 to 3 are guilty of breach of agreement and made gross and willful negligence. Hence, the petition of complaint praying for direction upon OPs to execute the deed of conveyance in connection with the suit property or register the same before the concerned registration authorities in favour of the complainant or direction upon OPs to refund the consideration amount of the flat/suit property as per the present market value amounting to Rs.31,50,000/- and to pay penal damages of Rs.5,00,000/- for harassment, compensation of Rs.6,00,000/- for mental pain and agony with litigation cost of Rs.1,00,000/-.
OPs No. 1 to 3 filed their written version. In their written version, OPs No. 1 to 3 denied all material allegations inter alia stated that the instant complaint is barred by law for non-joinder or misjoinder of parties as well as the complainant within her full knowledge wrongly impleaded the OPs No. 8 though the OP No. 8 already died and it appears from the Advocate’s letter dated 17.02.2014. The Ld. Advocate Mr. Sanjib Kumar Dey sent a letter on 17.02.2014 in reply to the letter dated 18.09.2013 OP No.2 also sent a notice through speed post on 20.9.2013 whereby it has been intimated that Nimai Chand Neogi passed away and it was intimated that one of the developers namely, Monorojnon Dey also died on 21.01.2012. Therefore the complaint is not at all tenable in the eye of law. The instant complaint is a speculative one and the complainant with her purposive motive made the complaint before this Commission to create vexatious and meaningless litigation which deserves the rejection of the complaint. The instant complaint is harassing and based on full of misleading statements having no iota at all. This complaint is motivated and out of a mischievous thought based on a cock and bull story and has been instituted causing frustration of the agreement for sale and thereby intentionally damaging the goodwill and reputation of the developers. The development agreement was executed for developing the property in question on 26.07.2000 between the developers and the land-owners of the said property. Simultaneously, the land-owners executed the registered general power of attorney in favour of the developers. Pursuant to the sanctioned plan from the competent authority, the developing company started the construction work of the multi storied building at the said property in question and accordingly, the construction had been completed. Pursuant to the completion of the flat in question at Premises No. 10, Umakanta Sen Lane, P.S. Chitpur, Kolkata 700030 the persons concerned entered into respective agreement for sale with the developers and the land-owners and made tripartite agreement for sale for the purpose of purchasing and/or selling the respective flats having 56 in number. Pursuant to that the complainant entered into an agreement for sale by way of tripartite agreement on 18.06.2001 for purchasing a flat being No. 14 on the 3rd floor. The complainant herself stated in her petition that she took the possession of the said flat on 10.03.2003. Other intending purchasers also took the possession of their respective flats from the developing company. The developers set out a list for showing the concerned flats which had been registered in between the year 2003 to 2008 and accordingly, the delivery of possession of the respective flats were handed over to the respective purchasers. Only two flats including complainant’s flat had not been registered for the reason as shown in the set out list. Several approach as well as request had been done by the developing company to the complainant since taking possession of the concerned flat by the complainant but the complainant was silent without showing any reason and no intimation was served by the complainant to the developers. After a long lapse of period, after taking the possession, the complainant wrote a letter dated 29.07.2013, requesting to arrange for registration of the sale deed. But no particular time and date was specified by the complainant. Therefore, the letter dated 29.07.2013 cannot stand on its own leg to substantiate the allegations made in the said letter or the complaint petition. Then the complainant again sent a letter dated 29.08.2013 and the developer company by one of its directors sent a letter dated 18.09.2013 denying all material allegations setforth and also pointed out that one of the owners, namely, Nimai Chand Neogi passed away and simultaneously, one of the directors namely, Monoronjon Dey. Then the complainant sent a letter dated 17.02.2014 to OP No. 2 and the developing company sent reply on 06.03.2014. But the complainant was silent for a long period thereafter. Therefore, the instant complaint is barred by limitation.
The complainant has not come before this Commission with clean hands and such complaint must be triggered on the first instance as well as OPs No. 1, 2 and 3 prayed for dismissal of the complaint case by imposing heavy cost upon the complainant.
OPs NO. 4 to 11 were impleaded as land-owners. Since the OP No. 8 expired the complainant filed an application being No. IA/53/2020 for expunging the name of OP No. 8 from the cause title of the complaint case. The prayer of the complainant was allowed and the name of the OP No. 8 was expunged from the cause title of the petition of complaint (vide Order No. 14 dated 26.04.2022).
In spite of receiving notice the land-owners being OPs No. 4, 5, 6, 7, 9, 10 and 11 did not appear before this Commission by filing written version. Hence, the case was proceeded ex parte against OPs No. 4, 5, 6, 7, 9, 10 and 11.
In course of argument, the Ld. Advocate for the complainant has stated that the complainant entered into an agreement for sale with the OPs on 18.06.2001 for purchasing the flat in question for consideration of Rs.8,00,000/. The complainant paid Rs.8,00,000/- and she also paid Rs.4,00,000/- for extra work in the flat and for interior work. The tentative date of possession was February, 2002, the actual physical possession was given by the OPs No. 1, 2 and 3 on 10.03.2003. For the delayed delivery in the possession of the flat, the complainant had to spend extra expenses of rent amounting to Rs.72,000/-. Till date the OPs No. 1 to 3 did not register the deed of conveyance of the flat in question though the legal notices were served to them twice.
The OPs No. 1 to 3 are now liable to be registered the deed of conveyance of the flat in question in favour of the complaianant. Hence, the Ld. Counsel for the complainant has prayed for direction upon OPs to register the deed of conveyance otherwise, the complainant will suffer irreparable loss and injuries.
Ld. Advocate for the OPs No. 1 to 3 has submitted before us that the development agreement between the land-owners and the developers was executed on 26.07.2000 and accordingly, the power of attorney was also granted in favour of the developers. As per sanctioned plan, the OPs No. 1 to 3 started the construction work of the building at the Premises No. 10, Uma Charan Sen Lane, P.S. Chitpur, Kolkata 700030. The complainant entered into an agreement for sale with all the OPs for purchasing a flat from the developer’s allocation on 18.06.2001. When the complainant sent a legal notice dated 29.07.2013 and the 29.08.2013 one of the directors of the OPs No. 1 to 3 sent a reply dated 18.09.2013 to the complainant whereby he disclosed that one of the owners namely, Nimai Chand Neogi passed away and one of the directors namely Monoronjon Dey also died on 20.01.2012. Due to sudden demise of one of the land-owners, the power of attorney already been ceased automatically and the developers have no right or option for registration of the deed of conveyance in favour of the complainant representing the land-owners. The fresh power of attorney has not been issued by the land-owners. Therefore, developers have no scope to execute the deed of conveyance in favour of the complainant.
Ld. Advocate for the OPs No. 1 to 3 has also submitted that during the pendency of the complaint case a talk of compromise took place between the complainant and the developers out of the Commission with the intervention of the friends and well wishers and accordingly complainant handed over one affidavit-cum-declaration to the OP No.1/developer whereby she declared that she would not demand any money refund of consideration along with penal damages, compensation and litigation cost from the developer. Considering such settlement terms, the developer also withdrew all the issues mentioned in the written version and undertook to cooperate the complainant for registration of the flat in question. The OPs No. 1, 2 and 3 are always ready and willing to execute the deed of conveyance in favour of the complainant, if the land-owners will execute a fresh power of attorney in favour of the opposite parties or the land-owners must be present at the time of the registration of the said deed. In this case, the OPs No. 1, 2 and 3 have no laches on their part. The complainant delayed the registration process and accordingly, the OPs No. 1, 2 and 3 are not liable for any cost and compensation as prayed by the complainant which were also withdrawn by way of submission in her affidavit already submitted in the case record.
Ld. Advocate for the OPs No. 1, 2 and 3 cited the judgment passed by the Hon’ble National Commission in the case of Lalita Tripathi and Ors. vs. Ravindra Nath Verma and Ors. reported in 2021 (1) CPR 309 NC and the judgment passed by the Hon’ble National Commission in Akshay and Ors. another vs. Aditya and Ors. reported in 2017 (4) CPR 706 NC.
Upon hearing the parties and on perusal of the materials on record it is admitted fact that being the owners OPs No. 4 to 11 entered into a development agreement with the OPs No. 1, 2 and 3 on 26.07.2000. It is also admitted fact that the complainant entered into an agreement for sale with the OPs No. 1 to 3 being the developers and with the land-owners on 18.06.2001 for purchasing a flat being No. 14 situated at 3rd floor in the Premises No. 10, Umakanta Sen Lane, P.S. Chitpur, Kolkata-700030 for a total consideration of Rs.8,00,000/-.Accordingly, the complainant paid Rs.8,00,000/- by way of different cheques on different dates. OPs No. 1 to 3 have received Rs.8,00,000/-. OPs No. 1 to 3 also performed some extra work as per requirement of the complainant and complainant paid Rs.4,00,000/- for the extra work. This is also admitted by the OPs No. 1 to 3/developers.
From the record, we come to know that one of the land-owners who was the OP No. 8 in the instant complaint, namely, Nimai Chand Neogi passed away and one of the directors of the company namely, Monoronjon Dey had died on 20.01.2012. After death of one of the land-owners the power of attorney given to the developers for construction of work automatically ceased and thereafter developers have no right or option for registration of the deed of conveyance in favour of the complainants. OPs No. 1, 2 and 3 filed a document being Annexure A1 wherefrom it appears that most of the flats were registered in the said premises in between 2003 to 2008, only two flats were not registered in the name of the flat owners being Flat No. 14 on the second floor and being Flat No. 13 on the 4th floor, wherefrom it appears to us the flat of the complainant was not registered. The flat of the complainant was not registered though she verbally requested for registration several times. However, in the meantime, the power of attorney was ceased in January 2012 due to death of one of the land-owners.
From the four corners of the petition of complaint, we have observed that the complainant entered into an agreement for sale for purchasing the flat from the developer’s allocation and accordingly she paid the full consideration. The complainant has not got the right, title and interest of the property since the execution and registration of the deed of conveyance of the flat in question is due till date. One compromise petition has been filed before this Commission by the OPs No. 1 to 3 wherefrom it appears that the complainant has declared that she would not claim any refund of consideration along with the penal damages and litigation expenses from the M/s. Dam Pvt. Ltd. But on careful perusal of the record we find that on the settlement application, the land-owners have not signed and they have not given any consent. Therefore, this Commission has observed that the term of settlement is not legal and valid and the application is not maintainable in the eye of law which is reflected vide order No. 12 dated 12.05.2023.
It is admitted fact that the complainant, being an intending purchaser, entered into an agreement for sale with the OPs on 18.06.2001 for purchasing a flat in question for a consideration of Rs.8,00,000/- along with additional amount to be paid of Rs.4,0,000/- for extra work. The land-owners of the property including the deceased land-owner being OP N. 8 namely Nimai Chand Neogi applied for sanctioned building plan before the then Calcutta Municipal Corporation and on 15.12.1999 the land-owners obtained a sanctioned building plan from the authority. Thereafter, the land-owners entered into an agreement for development on 26.07.2000 with the OPs No. 1 to 3 being the developers. Accordingly, the land-owners also executed a general power of attorney in favour of developers. The OPs No. 1, 2 & 3/developers started the construction work and according to the terms and conditions of the agreement for development, the developers declared to sell a flat being No. 14 measuring 900 sq. ft. more or less super built up area lying and situated on 3rd floor of the five storied building, namely, “North Plaza” at the suit premises.
Accordingly, the complainant applied for the flat in question and entered into the agreement for sale. The complainant paid Rs.8,00,000/- as consideration of the flat as per agreement through different cheques on different dates. There is also no dispute that the complainants paid Rs.4,00,000/- in cash on different dates to the developer. There is also no dispute that the OPs No. 1, 2 & 3 handed over the possession of the flat on 10.03.2003 though the scheduled date of the delivery of the possession was February 2002. The complainant demanded Rs.72,000/- as monthly rent for delay in delivery of the possession, but the complainant has failed to produce any document towards rent for the period from February 2002 to March 2003. At the time of taking delivery of possession, the complainant has not also raised any objection for delay in delivery of possession. Therefore, we cannot pass any order against the OPs No. 1 to 3 for the delay in delivery of the possession of the flat in question to the complainant. After getting the possession of the flat in question, the complainant requested the OPs No. 1, 2 & 3 for registration of the flat in question. Thereafter, the OPs No. 1, 2 & 3 also assured the complainant to prepare legal formalities for registration. But ultimately, the registration process is due till date. When the OPs No. 1 & 2 received the letter from the complainant on 29.07.2013 and letter dated 29.08.2013 with request for registration the developing company through one of its directors namely, Anil Chandra Saha, sent a letter dated 18.09.2013 to the complainant informing that one of the owners namely, Nimai Chand Neogy and one of the directors, namely, Monoronjon Dey died. Due to death of one of the land-owner, the power of attorney was ceased automatically. Therefore, at this juncture, the developers have no right to register the deed of conveyance in favour of the complainant. After death of Nimai Chand Neogy, who was one of the land-owners, no new power of attorney has given by existing land-owners. Though the notice was served upon OPs No. 4 to 7 none appeared on behalf of them to contest the case. Since OP No. 8 expired, the complainant filed an Interlocutory Application being No. IA/53/2020 praying for expunging the name of the OP No. 8 since deceased. The prayer of the complainant was allowed. Thereafter, the complainant filed affidavit of service in respect of OPs No. 9, 10 and 11. Notice upon OPs No. 9, 10 & 11 were duly served. Neither OPs NO. 10 and 11 appeared before this Commission to contest the case. Ultimately, the case was proceeded ex parte against OPs No. 4 to 7 and 9 to 11. Due to unchallenged testimony by the land-owners there is nothing to disbelief with regard to development agreement entered by and between the land-owners and the developers and the agreement for sale entered by and between the land-owners, the developers and the purchaser/complainant.
From the evidence filed by the complainant as well as developers, we find that the complainant is waiting years after years for registration of the flat in question. Since the OPs No. 1, 2 & 3 are not in a position to execute and register the deed of conveyance of the flat in question it is the obligatory duty of the land-owners to execute and register the deed of conveyance of the flat in question in favour of the complainant. It was the duty of the developers to execute and register the deed of conveyance but due to cessation of the power of attorney after expiry of one of the land-owners the OPs No. 1, 2 & 3 count not execute and register the Sale Deed. At present, the OPs No. 2 & 3 are not in a position to register the deed of conveyance as per the Agreement for Sale Therefore, we are inclined to pass order against OPs No.4, 5, 6, 7, 9, 10 and 11 to execute and register the deed of conveyance in favour of the complainant.
The complainant has stated in her complaint petition that since the OPs No. 1 , 2 & 3 have delivered the possession of the flat to her beyond the stipulated period of time she has prayed for rent amount for the delayed period for accommodation in the rented house. But at the time of final hearing, the Ld. Advocate for the complainant has submitted with all fairness that now the complainant is only praying for execution and registration of the flat in question. She is not praying for any amount for the rented accommodation for delayed delivery in possession from the OPs No. 1, 2 & 3/developer. On the other hand, Ld. Advocate for the OPs No. 1, 2 & 3/developer has submitted with all fairness that they are ready to execute and register the deed of conveyance but for the ceasation of the power of attorney due to demise of one of the land-owners they cannot do so. But the Ld. Advocate for the OPs No. 1, 2 & 3 has submitted that there is no scope to do so on their part and they have conceded the prayer of the complainants for execution and registration of the flat in question. The Ld. Advocate for the OPs No. 1, 2 & 3 has cited the judgment passed by Hon’ble National Commission in Lalita Tripathi and ors. vs. Ravindra Nath Verma and Ors. where the Hon’ble National Commission held that landowner to contractually bound to recognize the agreement to sell entered into by builder and to assign the proportionate land and building to purchasers of the flats from the builder.
Ld. Advocate for the OPs No. 1, 2 & 3 has also cited the judgment passed by the Hon’ble National Commission in Akshay and ors. vs. Aditya and Ors. where the Hon’ble National Commission held that land-owners cannot be allowed to escape their responsibility in matter of providing relief to consumers.
Relying upon the above noted judgments and upon hearing the parties appeared before the Commission, we are not inclined to pass any order against the OPs No. 1, 2 & 3/developers to execute and register the deed of conveyance of the flat in question in favour of the complainant. Due to death of one of the land-owners the complainant is waiting year after year to get the title of the flat in question in her name. Since she has given the possession of the flat in question from the OPs No. 1, 2 & 3 in the year 2003 we are not inclined to pass any order against the OPs No. 1, 2 & 3 towards compensation payable to the the complainant. At this juncture, OPs No. 1, 2 & 3 /developers are not in a position to execute and register the deed of conveyance. Therefore, we cannot pass any order against them.
The complainant has purchased a property from the developer’s allocation. Therefore, there was no role upon the land-owners to execute and register the deed of conveyance if the power of attorney exists at present. Due to death of one of the land-owners and also due to death of one of the partners of the developing firm, the developers are not in a position to execute and register the deed of conveyance of the flat in question in favour of the complainant. Though the land-owners being OPs No. 4, 5, 6, 7, 9, 10 & 11 have not contested the case it was their duty either to give fresh power of attorney to the developers or to execute and register the deed of conveyance of the flat in question in favour of the complainant. At this juncture, it is the obligatory duty of the OPs No. 4, 5, 6, 7, 9, 10 & 11 to execute and register the deed of conveyance of the flat in question in favour of the complainant. However, we do not pass any order towards compensation against them since it may create another litigation. In course of argument, Ld. Advocate for the complainant has fairly submitted that they complainant is eagerly waiting for the execution and registration of the deed of conveyance of the flat in question. Therefore, for finality of litigation, we are not inclined to pass any order for compensation against the land-owners. Accordingly, the complainant is entitled to get relief in part as prayed for.
As a result, the complaint case succeeds.
Hence,
It is
O R D E R E D
The Complaint case being No. CC/681/2018 be and the same is allowed ex parte against OPs No. 4, 5, 6, 7, 9, 10 & 11 without cost and dismissed against OPs No. 1, 2 & 3 on contest without cost.
The land-owners/OPs No. 4, 5, 6, 7, 9, 10 & 11 are directed to execute and register the flat in question as per schedule mentioned in the petition of the complaint within 45 (forty-five) days hereof.
There is no order as to compensation and costs.
The Complaint case is allowed in part and disposed of accordingly.
Let a plain copy be supplied to the parties free of cost.
