In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087.
CDF/Unit-I/Case No. 424 / 2010.
1) Mr. Manik Lal Ghosh and
2) Mrs. Bani Ghosh
14, Ballygunge Station Road, Kolkata-700019. ---------- Complainant
---Versus---
1) M/s. Kamala Properties Ltd.,
2, Biplabi Trailokya Maharaj Sarani, Kolkata-700001.
2) M/s. Halwasiya Housing Private Ltd.,
1, Chittaranjan Avenue, Kolkata-700001.
3) Sri Shrivardhan Mohata,
2, Brabourne Road, Kolkata-700001.
4) Sri Surya Prakash Mittal,
2, Brabourne Road, Kolkata-700001. ---------- Opposite Party
5) Standard Chartered Bank,
41, Chowringee Road, Kolkata-700071, P.S. Park Street. ---------- Proforma Opposite Parties
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member.
Smt. Sharmi Basu, Member
Order No. 18 Dated 19/12/2012.
SHARMI BASU, Member
Complainants Mr.Manik Lal Ghosh and his wife Mrs.Bani Ghosh by filing a petition of complaint u/s 12 of the C.P. Act have prayed for issuing direction upon the o.p. no.1 to o.p.no.4 to execute and register Deed of Conveyance in favour of the complainants in respect of the flat/unit and car parking space as categorically mentioned in the schedule described in the petition of complaints and to award compensation due to mental agony and harassment and litigation cost and pass any such order as the forum may deem fit and proper.
It is the specific case of the complainants that o.p. no.2 is the sole and absolute owner of a plot measuring 25 kottahs 1 chhatak 12 sq. ft. more or less appertaining to premises no.14, Ballygunge Station Road, P.S. Gariahat, kolkata-19 and o.p. no.1 is the developer of the land in question. O.p. nos.1 and 2 entered into an agreement on 5.12.2000 for the purpose of development and construction of a multi storied building on premises no.14, Ballygunge Station Road, Kolkata-19. It was stipulated in the agreement that the owner-allocation shall comprise of 45% of the built up area and the remaining -55% will belong to the developer. It was agreed between the o.ps. 1 and 2 that the land owner shall execute necessary legal documents in order to transfer, conveyance etc. in favour of the developer or its nominee and undivided indefeasible and impartibly 55% share of the land of the said premises together with the flats/units proposed to be constructed thereon and in order to effect the recitals of the agreement the land owner shall execute irrecoverable power of attorney and general power of attorney in favour of the developer so that the developer can independently execute necessary documents of transfer and can submit the same before the appropriate registration authorities. On the same date the o.p.no.2 executed a Power of Attorney in favour of the o.p.no.3 and 4 and o.p5, Bank is the Proforma o.p. and loan was taken by the complainants from o.p.5 and the have no allegation against o.p.5.
After knowing the construction of such multi storied building on the said premises the complainants had jointly approached the o.ps.(except o.p.5) for booking a residential flat and it was agreed on 29.05.2002. that the complainants would purchase flat in question with one covered car parking space at the Surya Fern Enclave, 14, Ballygunge Station Road, Kolkata-19 for a consideration amount of Rs.15,17,720/-. It was also mentioned in the agreement for sale that the developer and the land owner will do all the needful for the purpose of delivery of possession and also for execution of deed of conveyance in favour of the complainants. In compliance of the said agreement for sale, complainants had duly paid the entire consideration money of Rs.15,17,720/- to the o.p. no.1 for the consideration of purchase of the suit property and they had obtained receipts. After completion of the construction, o.p. no.1 duly obtained completion certificate from Kolkata Municipal Corporation on 25.3.04 in respect of the said premises and thereafter had duly issued a letter of possession to the complainants and thereby handed over vacant absolute and peaceful possession to the complainants in terms of the agreement deed dt.28.12.01. After getting peaceful possession the complainants started to reside in the said flat. They were earnestly trying and willing to complete the transaction for transfer of their allotted property by paying appropriate stamp duty, registration fees and other incidental costs. But due to non cooperation, illegal and arbitrary act of o.ps deed of conveyance was not executed and the complainants have informed it to the o.ps. who have not paid any heed to it and finding no other alternative complainants had sent lawyer’s notice to the o.ps. and they have received the same in due course of time and o.p. no.1 admitting all the grievances of the complainants and for the first time made a new fact that the o.p. no.1 had filed one suit bearing no.84 of 2007 (Kamala Properties Ltd. Vs. Halwasiya Housing Pvt. Ltd.) for specific performance of agreement and for execution of necessary deed of conveyance before the Hon’ble High Court, Kolkata and requested the complainants not to take any action and wait till the disposal of the aforesaid suit. Taking resort to this unjustified device the o.p. no.1 had instituted the aforesaid suit in the Hon’ble High Court, Kolkata and the suit for specific performance of contract was filed by o.p. no.1 as the o.p. no.2 have violated specific clauses or stipulation of development agreement dt.5.12.2000. On 24.5.07 o.p. no.2 had gave a reply of the said legal notice dt.8.5.07., wherein it has been mentioned that since there are some disputes in connection with development agreement dt.5.12.2000 and consequent to which the o.p. no.2 the land owner had instituted suit before the Hon’ble High Court, Kolkata being C.S. no.298 of 2004 and during the pendency of the suit o.p. no.2 cannot participate for registration of Deed of Conveyance in any manner as per advice of their lawyer. But the complainants assert that if there be any such dispute that is exclusively between the land owner and the developer and not with the complainants and so such dispute between the o.ps. can in no manner stand in the way of registration of the flat in question in favour of the complainants. So, it is nothing but a dilatory tactic adopted by them for which the complainants have been suffering a lot. The complainants have already sent suitable reply through his advocate to the o.ps. demanding registration of the flat in question within a period of fortnight, otherwise legal consequences would be followed. The o.ps. have received such reply of the complainants in due course of time. But, subsequently on receipt of complainant’s reply o.p. no.1 had replied that deed of conveyance in respect of their flat could not be executed and registered due to the illegal attitude adopted by o.p. no.2. this illegal and wrongful acts of the o.ps. is clear case of deficiency of service which has compelled the complainants to file this case against the o.ps. u/s 12 of the C.P. Act demanding to execute and register Deed of Conveyance in respect of the flat in question in their favour.
Decision with reasons :-
It appears on perusal of the record that even in spite of receipt of notices o.p. nos.1 and 3,4 and 5 did not file their w/vs and accordingly the case was heard ex-parte. O.P.2 contested the instant case through their Ld.Councels and interalia stated that case is not maintainable as Cases between the land owner and developer are pending in other Courts and for the above reason aforesaid registration of deed of conveyance in favour of the complainants could not be performed.
It is the specific case of the complainants that they had paid full consideration of money for purchasing the property in question on the basis of the agreement for sale x-A. We have perused all the documents brought before this Forum and it is beyond that o.p. no.1 filed suit no.84 of 2005 before the Hon’ble High Court, Kolkata for specific performance of the agreement and for execution of the necessary deed of conveyance in favour of the purchaser concerned including the complainants. We have also noticed that as there is dispute between the o.ps. and because a suit bearing no. C.S. 298 of 2004 is pending before the Hon’ble High Court, Kolkata o.p 1 to o.p.4 cannot participate for registration of the Deed of Conveyance till the disposal of the suit before the Hon’ble High Court, Kolkata. In this regard, it is needed to be mentioned that Hon’ble National Commission has been pleased to observe that any dispute between landlords and developers should not deprive any consumer or intending consumer from his legitimate right and non-execution of Deed of Conveyance of the suit-property in favour of the consumer/purchaser by the land owner and/or developer tantamounts to deficiency in rendering service toward the consumer. Pendency of the aforesaid cases in other courts does not stand in the way while passing final order by this Forum whilst no stay order lying with the Record.
Therefore, considering the facts, circumstances, evidence on record both orally and documentary, we are of the opinion that the complainants are entitled to get a favourable order as prayed for because we have already said that the complainants have already paid total consideration amount in terms of the agreement for sale and accordingly, we do not find any fault on the part of the complainants. Further, we have already said that the possession of the flat in question has already been given and the complainants and they have been residing there. For the disputes between the o.ps.(except o.p.5) and for the litigation between them the complainants should not suffer, particularly when there is neither any fault nor any lapse on the part of the complainants with regard to the agreement in question. So, the o.p.no.1 to 4 committed deficiency in rendering service definitely towards the complainants/consumers and the disputes between the land-owner and developers should not deprive the complainants form their legitimate claim. And, complainants should not suffer for illegal inaction of o.p.nos.1 to 4.
It is also highlighted by this Forum that due to non-execution of Deed of Conveyance by o.p.no.1 to 4 complainants have to pay a huge excess amount towards Stamp Duty at the time of aforesaid registration and we are strongly of the opinion that complainants are entitled to get compensation from the o.p.1 to 4 for the above mentioned reason.
Hence,
Ordered,
That the instant case of the complainants is allowed ex-parte with cost against the o.ps.1,3 and 4 and exparte without cost against o.p.5 and on contest with cost against o.p.2.
All the o.ps., except o.p.5 are jointly and/or severally directed to execute and register the deed of conveyance of the suit property in question in favour of the complainants. O.p. nos.1 to 4 are jointly and/or severally directed to pay compensation in the tune of Rs.50,000/- (Rupees fifty thousand) only to the complainants for their mental agony and financial loss due to inaction and deficiency in service of o.p. nos.1 to o.p.4 even after receiving total consideration amount of the suit property from the complainants and to pay Rs.10,000/- (Rupees ten thousand) only to the complainants as litigation cost. All the above orders should be complied within 45 days from the date of communication of this order, failing which each o.p.1 to o.p.4 jointly and/or severally have to pay Rs.50/- (Rupees fifty) only per day on and from 46th day from the date of communication of this order till the date of full and final compliance of this order.
Supply certified copy of this order to the parties.
