This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not bother to take any step to execute and register the deed of conveyance in respect of the flat in favour of the Complainant and to provide him the completion certificate of the building till filing of this complaint.
The brief fact of the case of the Complainant is that when the concerned building was constructing by the OP-1 and 2 the Complainant was searching of a residential flat for his own along with the family members and according the Complainant came with the contact of the OP-1 and 2 and after perusal of all relevant documents regarding the said property the Complainant agreed to purchase a flat measuring about more or less 400 square feet of super built up area on the first floor front portion on the building together with undivided proportionate share of land, all common facilities and amenities. The total consideration of the said flat was settled at Rs.2,50,000/- and the OP also agreed to sell out the said flat to the Complainant. The OP-1 and 2 are the builders and the OP-3 is the land owner. After completion of the construction except some incomplete or unfinished work of the building as per the sanctioned building plan, the owner’s allocation was handed over to the OP-3 and the OP-3 took the possession as per the terms and conditions of the Development Agreement.
As per the terms and conditions of the Development the OP-1 and were empowered to sell out the remaining flats of the said multistoried building to the intending purchasers like this Complainant. The Complainant being satisfied and influenced with the verbal discussion of the OPs regarding the land and the sanctioned building plan along with its common facilities and amenities had expressed his desire to purchase the said flat and accordingly the Complainant had entered into an agreement for sale with the OPs on 01.08.2002. Initially the Complainant paid a sum of Rs.50,000/- in favour of the OP-1 and 2 in cash and again on 17.08.2002 he paid Rs.2,00,000/- for the proposed flat after obtaining loan. In this manner the Complainant paid the entire consideration amount to the OP-1 and 2. After completion of the entire construction works as per the sanctioned building plan and the agreement for sale dated 01.08.2002 the OP-1 and 2 have handed over the peaceful vacant possession of the said flat in favour of the Complainant on 03.03.2003. But the OP-1 and 2 did not provide any possession certificate in favour of the Complainant till date. Since getting physical possession in the said flat the Complainant has been residing in the said flat and enjoying the same. The OP-1 and 2 promised to hand over a copy of the completion certificate to him, but till date the said certificate has not been provided by the OP-1 and in his favour, rather they did not show their intention to deliver the same.
The Complainant has stated that there is some incomplete and unfinished works in his flat, which has not been completed and finished by the OP-1 and intentionally with a view to harass him. On several occasion the Complainant had requested the OP-1 and 2 to finish the incomplete works, but they did not bother to pay any heed to his request. Due to such negligent act and conduct of the said OPs the Complainant being compelled to reside at the said flat with lots of hazards. In such illegal manner and negligent conduct the OP-1 and 2 have harassed the Complainant both physically and mentally and also threatened him that they will no execute and register the flat and no action will be taken for necessary arrangement for registration viz. preparation of the deed of conveyance and presentation of the same before the competent registering authority.
Several requests were made by the Complainant for this purpose, but to no effect. Lastly on 30.01.2016 the Complainant had issued an Advocate’s letter with registered post in favour of all the OPs requesting to do the needful for registration of the sale deed in his favour in respect of the questioned flat. Upon receipt of the said letter The OPs showed their willingness and readiness to perform their part of duties at the time of registration as well as to complete the registration work of the Complainant’s flat. Similarly the Complainant also showed his willingness and readiness to perform his part of duties to complete the registration work of his flat. But till filing of this complaint the OPs did not take any initiative or positive steps regarding registration of the flat of the Complainant and intentionally duped him after taking the entire consideration amount.The OPs are contractually obliged and liable to execute and register the deed of conveyance in respect of the said flat in favour of the Complainant, but did not pay any respect to the said contract in which they have also put their signatures.
As the OPs did not take any step to redress the grievance of the Complainant, having no other alternative the Complainant has approached before the Ld. DCDRF, Barasat by filing this complaint praying for direction upon the OPs jointly or severally to execute and register the deed of conveyance in respect of the flat specifically described in the schedule of the flat, failing which the deed of conveyance may be registered through the Court/Forum, to pay the enhanced registration cost as per determination of the Ld. Forum, to pay compensation to the tune of Rs.2,00,000/- to him due to harassment, mental agony and negligent act and conduct, to provide him the completion certificate issued by the competent Municipality, to pay the entire tax and rent till the date of receiving the completion certificate and to pay litigation cost to him.
After admission of this complaint before the Ld. DCDRF, Barasat the OP-2 and 3 died and accordingly the names and addresses of the legal heirs of the OP 2 and 3 was incorporated by the Complainant by filing substitution application. Accordingly after receipt of the notices the OP-3(iii) and the OP-2 (i), (ii) and (iv) have appeared by filing vokalatnama respectively. Scope was given to file written version. But the legal heirs of the OP-2 did not file any written version. The legal heirs of the OP-3 did not adduce any evidence.
The petition of complaint has been contested by the OP 3(iii) by filing written version contending that the case is not maintainable against this OP either in law or in facts. The OP-3(iii) has stated that she had already lost her right, title, interest and possession over the portion of the property in question as the portion has already been executed and registered by way of Gift Deed in favour of Sri Prantik Biswas on 26.03.2016 bearing Deed no-2629/2016 and another Gift Deed executed on 23.06.2016 by this OP along with Minati Biswas and Prantik Biswas in favour of Smt. Shawli Sarkar bearing Deed no-4992/2016. The OP 3(iii) has denied all the facts as stated in the petition of complaint and for this reason this OP has prayed for dismissal of the complaint with Cost.
The OP 3(i), 3(ii) and 3(iv) have contested the petition of complaint by filing conjoint written version stating that this complaint is not at all maintainable in its form and nature. These OPs have received the copy of the substitution petition whereby the present OPs are substituted as per the order of the Ld. Commission, but the Complainant knows very well that the predecessor namely Satyen Biswas died on 23.11.2005 and the Promoter died on 08.02.2012. So, no cause of action has arisen against these OPs. In this manner the Complainant has made false and fabricated story to mislead the Ld. Commission. It is further stated by the OPs that the Complainant has been occupying the flats years together and he got enough time to register his flat in his own name as he purchase the flat from the developer’s allocation. The developer never requested these OPs after the death of Satyen Biswas to register the flat in the name of the occupant. So, at this stage the present OPs do not have any power to execute anything without the consent of the substituted OP-2. There was no financial transaction by and between the Complainant and these OPs. Therefore these OPs have no liability to satisfy the Complainant in any respect. According to these OPs the complaint is liable to be dismissed with cost.
It is pertinent to mention that though this complaint was filed before the ld. DCDRF, Barasat, after establishment of the Additional CDRF, Rajarhat, Newtown the case record has been transferred from the earlier Ld. Forum to this Ld. Forum in view of the order passed by the Hon’ble SCDRC. It is necessary to mention that on and from 20.07.2020 the Consumer Protection Act, 2019 has come into force and accordingly the Ld. Forum became Ld. Commission. Henceforth instead of mentioning Ld. Forum, Ld. Commission will be mentioned in the body of this judgment.
During final argument the Ld. Counsel for the Complainant and the Ld. Counsel for the substituted legal heirs of the land owner were present who have advanced their respective arguments.
We have carefully perused the record, documents as available and heard argument at length advanced by the Ld. Counsel for the above-mentioned parties. It is evident from the Agreement for Sale date 01.08.2002 that Tripartite Agreement was executed by and between the Complainant, the OP-1 & 2, being the developers and the OP-3, being the land owner. There was a Development Agreement by and between the OP-3 and the OP-1 & 2, through which it was settled that the OP-1 and 2 shall provide the land owner’s allocation to the OP-3 and from the developer’s allocation the OP-1 and 2 were empowered by the OP-3 through power of attorney to sell out the remaining flats to the intending purchasers.
Accordingly the Complainant had entered into an agreement for sale with all the OPs (Land Owner & Developer) for purchasing a flat in the said constructed building. The entire consideration of the flat was settled at Rs.2,50,000/- and accordingly the Complainant paid the entire amount to the OP-1 and 2. After completion of construction of the flat the OP-1 and 2 have delivered the peaceful physical possession in the said flat and getting delivery of the flat the Complainant has been residing therein. The only dispute is that the OPs did not take any positive step to execute and register the deed of conveyance in respect of the flat in his favour till filing of this complaint. Though several request was made by the Complainant in this regard, to no effect. Finding no other way this complaint is initiated by the Complainant.
From the terms and conditions of the Agreement for Sale it is also evident that the OPs are legally bound to register the sale deed in favour of the Complainant as also to provide the possession letter and the completion certificate of the concerned building issued by the competent Authority (Municipality). But the record reveals that till filing of this complaint the OPs did not register the said flat in the name of the Complainant nor deliver any completion certificate to the Complainant. The Complainant got physical possession in the said flat on 03.03.2003. From the date of possession till filing of this complaint about 13 years have already been lapsed. Therefore the OPs have intentionally and deliberately harassed the Complainant for a prolonged period for which the Complainant is suffering from pecuniary damage, mental and physical agony.Due to such unnecessary harassment the Complainant in our opinion is very much entitled to get compensation from the OPs. Undoubtedly due to inaction and deficient services of the OPs the Complainant being compelled has filed this complaint for redressal of his grievance and for this proceeding the Complainant has to incur some expenses for which he is also entitled to get litigation cost.
For computation of the compensation amount we have to mention some facts of this case further. The agreement for sale by and between the Complainant and the OP-1 & 2 and OP-3 reveals that agreement for sale was executed by and between the abovementioned three persons i.e. the land owner, the developers, and the purchaser. For determination of compensation amount we are to rely on the Reportable judgment passed by the Hon’ble Supreme Court in the case of Chandigarh Housing Board vs. M/s. Parasvanath Developers Private Limited & Another, passed Civil Appeal no-10748/2016 (Civil Appellate Jurisdiction), dated 17.12.2019, wherein it has been held that in case of Tripartite Agreement i.e. builder-landowner-purchaser, if compensation be imposed on the builder due to deficiency in service, then proportionate compensation should be imposed on the land owner.
It is true that as per the development agreement the landowner gave the power of attorney to the developers for erection of the building on the said land and against the land the OP-1 &2 were under the obligation to provide the land owner’s allocation as mentioned in the development agreement along with others. In the said development agreement it was mentioned that after completion of the construction of the building, the owner shall be entitled to entire ground floor similar to 1st, 2nd and 3rd floor of the building as per the building plan to be sanctioned by the Baranagore Municipality consisting of two flats together with fixtures, fittings and amenities and attachment ….. with undivided proportionate share of land including common facilities and amenities related to the said building……the developer shall also pay the sum of Rs.1,90,000/- only to the said owner as owner’s allocation.
Therefore it is clear that percentage of allocation has not been mentioned in the development agreement. For this reason we are to calculate the ratio as 20:80, which means 80% of the construction will be the developer’s allocation from where he was empowered to sell out the flats to the intending purchasers. It is pertinent to mention that in any stage of this proceeding the OP-1 & 2 were never asked by the landowners as to what prevented the OP-1 & 2 to execute the sale deed in favour of the purchaser. Without taking any action the land owners kept themselves silent over the entire episode, which in our view proves the deficiency in service on the part of the land owners.
Therefore having regard to the abovementioned judgment passed by the Hon’ble Supreme Court, we cannot exonerate the land owners from imposing penalty on them and as the land owner was a party to the agreement for sale, then he/they also cannot avoid his/their liability for making payment of compensation in proportionate of his allocation, which he/they was/were entitled to get in view of the development agreement. In the relied case land owner’s allocation was specifically mentioned in percentage (%) in the development agreement, so it was mentioned that in 70:30 the compensation should be given by the developer and the land owner respectively. Similarly in the case in hand the ratio is 20:60. So we are inclined to impose compensation on the developers based on the same ratio. Thus it can be said that the Complainant is entitled to get compensation from the OPs.
Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/87/2020 is hereby allowed on contest against the OP 3(iii) & OP 3(i), 3(ii) and 3(iv) with cost and allowed exparte against the other OPs with cost.
The OPs are directed to execute the deed of conveyanceof the respective flat in favour of the Complainant within 45 days from the date of passing of this judgment, in default the Complainant will be at liberty the execute the sale deed through the machinery of this Ld. Commission in accordance with law. The OPs shall pay compensation to the tune of Rs.2,00,000/- to the Complainant, out of which the developer shall pay 80% of the above sum of Rs.2,00,000/- to the Complainant and the land owners shall pay 20% of the compensation amount to the Complainant within 45 days from the date of passing this judgment. The developer (OP-1 and 2) are further directed to pay a sum of Rs.20,000/- to the Complainant as litigation cost within the abovementioned period, in default the Complainant will be at liberty to put the entire order/decree in execution as per provision of law.
Let a plain copy of this judgment be given to the parties free of cost as per CPR.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
