SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
The brief facts as set out in the complaint are that OP-2 is the Director of OP-1 M/S M. V. Housing Pvt. Ltd. and OP-3 and Swastik Kumar Gangulee, since deceaced were the joint owners of Plot Nos. P-156 and P-159, Sector-A of Metropolitan Co-operative Housing Society, PS-Pragati Maidan, Kolkata-700105. The OPs-4 and Swastik Kumar Gangulee, since deceased decided to raise a G+IV storied building over the said plots. Development Agreement dated 28.06.2007 was executed between the OP-2 and the joint owners of the Plots Nos. P-156 & P-159, Sector –A, of Metropolitan Co-operative Housing Society, Canal South Road, Kolkata-700105. Complainant interested to purchase a flat on the 3rd floor and one covered car parking space on the ground floor of the proposed building out of the Developer’s allocation situated at Plot No. P-159, Sector-A, Metropolitan Co-operative Housing Society, Kolkata-700105 and also submitted an application dated 06.08.2007 along with a sum of Rs. 1,00,000/- as application money to the OP-1 for purchasing the subject flat and car parking space. An Agreement for Sale dated 28.11.2007 was executed between the complainant as Purchaser, OP-1 as Developer, OP-3 and Swastik Kumar Gangulee, since deceaced as Owners/Vendors. OPs 4 and 5 are the legal heirs of Swastik Kumar Gangulee. Complainant paid the entire consideration amount in respect of the subject flat and car parking space to the OP-1 in terms of the Agreement for Sale. OP-1 delivered vacant possession of the subject flat and car parking space including completion certificate and possession certificate to the complainant on 29.10.2009. Despite that the OPs miserably failed to execute and register Deed of Conveyance of the flat and car parking space. Alleging deficiency in service and unfair trade practice on the part of the OPs developer and owners/vendors, the complainant has thus filed the present consumer complaint seeking reliefs mentioned in the prayer.
Despite service of notices of the complaint, OPs 1 and 2 did not appear to contest the case by filing WV. Thus, the case proceeded ex parte against the OPs 1 and 2.
OPs 3 and 4 have filed their WV and have denied the contents of the complaint. It is stated that the complainant is not a -consumer- within the meaning of Section 2 (7) of the act. Agreement for Sale, if any executed between the complainant and OP-1 in respect of the subject flat and car parking space has been made behind their back. Power of Attorney executed in favour of OP-1 has subsequently been revoked on 10.06.2010. The answering OPs have no monetary transactions which have been made between complainant and OP-1. OPs 1 and 2 deliberately with ill motive failed and neglected to handover physical possession of the owner’s allocation to the OP-3, her husband, since deceaced and OP-4. OP-1 handover the possession of the owner’s allocation to the third party. A criminal case being Tiljala PS case No. 197/2010 U/ss 420/406/423/468/469/472/120B/506 of IPC has been started against OPs 1 and 2. The subject flat and car parking space is not under owner’s allocation. Thus, the answering OPs have no negligence and/or liability towards the complainant. There is no deficiency in service or unfair trade practice on their part and the answering OPs have prayed that consumer complaint be dismissed.
Upon notice, OP-5 appeared and filed the WV denying all the allegations made by the complainant. Preliminary objections about concealment of material facts, complainant is not consumer etc. are raised and requested to dismiss the complaint. OP-5 did not file E/chief in support of his case.
Complainant Sri Deep Narayan Dutta in his evidence has tendered the affidavit which he has reiterated all the averments taken in the complaint and relied the documents annexed with the complaint petition.
On the other hand, in order to reburt the evidence adduced on behalf of the complainant, OP-4 Somedeep Gangulee has also tendered affidavit and further tendered the documents marked annexure A to I.
We have heard the Ld. Advocate appearing on behalf of the complainant and the Ld. Advocate for the OP-4/Joint Owners of Plot No. P-159, Sector-A, Metropolitan Co-Operative Housing Society, Kolkata-700105 and perused the material available on record.
Ld. Advocate for the complainant submitted that there is gross deficiency in service and unfair trade practice on the part of the OP-1/Developer and remaining OPs/owners. Despite receiving entire consideration amount, OPs did not execute and register Deed of Conveyance. It is prayed that his consumer complaint be allowed in terms of the prayer.
Per-contra Ld. Advocate appearing on behalf of the OP-4 has argued that the Agreement for Sale dated 28.11.2007 was executed between the complainant and OP-1 behind their back. It is also stated that the Power of Attorney executed between the OP-3 and her deceaced husband in favour of the OP-1/Developer has been revoked on 10.06.2010. It is further submitted that the OPs 1 and 2 failed and neglected to handover possession of owner’s allocation despite several request and started to handover possession of the owner’s allocation to third party for which a Criminal Case being Tiljala PS case No. 197/2010 was started against the Developer. That there is no deficiency in service or unfair trade practice on their part. He prayed that the complaint as filed by the complainant be dismissed in view of reasons as substantiated above.
We have given our thoughtful consideration to the various pleas raised by the Ld. Advocate for the parties and find that the OP-3 and her husband Swastik Kumar Gangulee, since deceaced entered into a Development Agreement dated 28.06.2007 with OP-1 for construction of G+04th storied building on Plot Nos. P-156 and P-159 in Sector-A of the Metropolitan Co-operative Housing Society, Kolkata-700105. Owners & Builders Allocation have been described in schedule B1 and B2 of the said Development Agreement. From the record, it is seen that OP-3 and her husband, since deceased executed and registered a Power of Attorney dated 25.07.2005 in favour of OP-2 and one Mohan Kumar Gupta. Record further speaks that OP-3 and her husband revoked the Power of Attorney dated 25.07.2005 by executing and registering a Deed of Revocation dated 09.06.2010.
A perusal of the Minutes dated 22.08.2007 executed between OP-3, her husband and OP-2 it appears to us regarding owner’s allocation and Developer’s allocation. Developer’s Allocation is entire 2nd, 3rd and 4th floor of Premises No. P-159, Sector-A, Metropolitan Co-Operative Housing Society, Canal South Road, Kolkata-700105 and Owner’s Allocation is entire 1st floor of Premises No. P-159, Sector-A. Thus, it is clear that complainant’s flat falls under the allocation of Developer.
The admitted facts of the case are that the complainant entered into an Agreement for Sale dated 28.11.2007 with OP-1 in respect of the subject flat and car parking space. Complainant has paid the entire consideration amount, flat and car parking space are delivered to him. Completion Certificate and possession certificate are also given to the complainant.
In the Development Agreement (Para-3 of Article-IV Considerations) it is mentioned that the Builder shall be entitled to receive all the money from the intending purchasers in respect of Developer’s Allotted portion and the owners shall not claim and/or demand any amount from the builder regarding the sale of the said Builder allocated portion and the owners shall be bound to execute and register Deed of Conveyance prepared by the Builders and/ or intending purchasers at their costs in respect of the said flat/spaces of the Builders allocation in the proposed building. Thus, the owner’ are liable to execute and register Deed of Conveyance of the subject flat and car parking space in the favour of the complainant. Pendency of criminal case against the Developer is no ground for refusal of execution and registration of the Deed of Conveyance. Complainant alleged that despite several request the OPs 3 to 5 did not perform their obligation in terms of the Development Agreement. Complainant cannot be made to wait indefinitely for execution and registration of the Deed of Conveyance on account of internal dispute between the Developer and Owners.
It is pointed out that the purported dispute between the Owners’ and Developer had arisen in the month of June, 2010 and the Agreement for Sale was executed on 28.11.2007. Thus, the purported dispute between the owners and developer cannot vitiate the action taken on 28.11.2007. OPs/owners fail to produce any document showing pendency of Civil Suit before the competent Civil Court in respect of the subject flat/building. Even the owners fail to produce any injunction order in respect of the subject flat/building. Thus, the Commission has the authority to pass appropriate order in this complaint case.
It is settled law that the complainant being the purchaser of the flat for residential purpose is a -consumer- under the provision of Consumer Protection Act, 2019. There is no avernment in the WV of the owners that complainant purchase the subject flat for commercial purpose. Therefore, the Consumer Commission has jurisdiction to entertain the complaint.
In the light of the above discussion, we find both deficiency in service within the meaning of Section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OPs.
In view of the above discussions, the present consumer complaint is allowed on contest against the OPs 3 to 5 and ex parte against the OPs 1 and 2 with the following directions:-
1. OPs 3 to 5 are directed to execute and register Deed of Conveyance in respect of the subject flat on the 3rd floor and car parking space on the ground floor of Premises No. P-159, Sector-A, Metropolitan Co-operative Housing Society, Canal South Road, Kolkata-700105 in favour of the complainant.
2. OPs 1 and 2 are directed to pay Rs. 1,00,000/- (Rupees one lac) only as compensation to the complainant for mental agony and harassment.
3. OPs 1 to 5 are further directed to pay Rs. 15,000/- (Rupees fifteen thousand) only to the complainant towards litigation costs.
4. The aforesaid direction shall be complied with within a period of six weeks from today, failing which the amount of compensation shall carry interest at the rate of 10 percent p.a. till its realization.
Copy of the judgment be supplied to the parties as per rules and also be uploaded forthwith on the website of this Commission for perusal of the parties.
