DATE OF FILING                    :   08-04-2011. 

DATE OF FINAL ORDER      :   12-03-2012.

Smt. Subhra Basu Mullick,

Wife of Sri Shanti Nath Basu Mullick,

Residing at 91, Ramkrishnapur Lane, P.S. Shibpur,

 District –Howrah----------------------------------------------- ---------------  COMPLAINANT.

-          Versus   -

1. M/s. Shree Gopalu Construction,

    a proprietorship firm represented by the

    sole proprietor, Shri Saptarshi Banerjee,

    son of Late Biswanath Banerjee,

    residing at 1/1, Prasanna Kumar Dutta Lane,

    P.S. Shibpur, District – Howrah,

    and working at registered office

    at 166, Ramkrishnapur Lane, P.S. Shibpur,

    District – Howrah.

2. Smt. Parul Roy,

    wife of Sri Sambhu Nath Roy,

    residing at 87, Ramkrishnapur Lane,

    P.S. Shibpur,

    District – Howrah. . -----------------------------------------------------OPPOSITE PARTIES.

                                                P   R    E     S    E    N     T

                         1.     Hon’ble President    :     Shri T.K. Bhattacharya.

                                C      O      U       N        S        E        L

Representatives for the complainant           :   Shri Sukanta Banerjee,

                                                                             Shri Mithilesh Singh,

                                                                              Ld. Advocates.

Representatives for the opposite party        :   

                                                 F  I   N   A    L       O   R   D    E     R

1.         The instant case was filed by Smt. Subhra Basu Mullick U/S 12 of the  C.P.  Act, 1986, against O.Ps, alleging deficiency in service.

2.         The complainant filed this petition praying for direction  upon the o.ps. for execution of the deed, the compensation for Rs. 50,000/- for harassment and for cost of litigation as the O.P. no. 2 as well as the O.P. no. 1 are not executing the deed of conveyance in spite of full payment of consideration money of Rs. 4,41,000/- with respect to the 2^nd floor flat measuring 477 sq. ft. at holding no. 91. Ramkrishnapur Lane, P.S. Shibpur, District – Howrah. Though the possession certificate has also been issued in favour of the complainant, the O.P. no. 2 is standing  in the way of the execution of the deed. Hence the case.

3.         The O.P. no. 1 contested the case by filing written version contending interalia that this O.P. has no power to assist the complainant as after completion of the project, the O.P. no. 2 has snatched away the power of attorney of the O.P. no. 1 by way of revocation and thereby the obligation of the O.P. no. 1 has been shifted to the owner i.e. O.P. no. 2. In fact  the o.p. no. 1 has supported the case of the complainant.

4.         O.P. no. 2 in his written version challenged the maintainability of the instant  application before this Forum on the ground of Limitation and incorporation of the Clause of Arbitration in the deed of agreement. Her further case is that this case is the outcome of the compromise decree dated 27-11-2007 in T.S. 112 of 2007 and as such entire dispute requires to be settled before the Civil  Court and this Court cannot have any jurisdiction to pass any direction upon the O.P. no. 2.

Upon pleadings of  both parties following points  arose for determination :

1.                  Is the complaint maintainable in its present form before this Forum  ?

2.                  Is the complainant entitled to the relief as prayed for  ? 

DECISION  WITH   REASONS      :

5.                  Point No. 1.

            The O.P. no. 2 in the written version as well as in the argument categorically stated that the instant application is barred by the principle of doctrine of estoppels and  res judicata. It has been further argued that the instant case is barred by Limitation and also in view of the Clause of Arbitration as enjoined in the deed of agreement.

6.   In fact the  case is quite maintainable in view of Section 3 of the Consumer Protection Act, 1986 wherein it has been laid down that the provision of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. Therefore the provisions of this Act give the consumer an additional expeditious remedy. Inasmuch as the complainant entered into an agreement with the o.ps. on 10-05-2006 for the purpose of the flat mentioned in the schedule, the complainant became the consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986.  That apart  the conduct of the O.P. no. 2 comes within the purview of Section 2( r ) i.e.   unfair trade practice. The O.P. no. 2 in fact made a mockery of the existing law in force in adopting unfair method and deceptive practice in withholding the execution of the deed. Accordingly the O.P. no. 2 cannot take refuge to the provisions and the terms of the deed of agreement which is virtually unilateral and intending purchasers like the complainant did not have any scope to go through the agreement in between lines. This is because in most cases the purchasers of the flat or of any sort of accommodation, remains very much concerned for a roof on their head and thereby rather compelled by circumstances to overlook or ignore the particular terms of the agreement involving intricate questions of law and procedure and naturally the O.P. no. 2 cannot reap extra benefit or mileage from the deed of agreement as canvassed.

7.   The T.S. No. 112 of 2007 ended in compromise. Therefore, it cannot be agitated that the complainant has no cause of action against the o.p. no. 2 to institute the instant case. The agreement between the parties was executed on 10-04-2006 and the compromise decree was passed on 27-11-2006 i.e. after 7 months of the deed of agreement. So the attempt of the O.P. no. 2 to put an  imaginary embargo  upon the complainant is just a amateurish attempt to take away the bonafide right to the complainant. The attempt of the O.P. no. 2 to disentitle the complainant by drawing reference of Section 4 of the Sales of Goods Act, 1930 in total disregard of Section 12 of the Consumer Protection Act, 1986 is just a gesture to commit anachronism as because the complainant was delivered the possession of the flat after receiving the full consideration money; possession certificate and was issued thereto; only the execution of the deed remains due. Therefore, Section 4 of the Sales of Goods Act, 1930 has no scope in this case. The O.P. no. 2 in fact has adopted a delaying tactics only to teach a good lesson to the O.P. 1 for their personal estrangement.

8.         Likewise the case  cannot be barred by limitation as the complainant is on continual possession of the flat in dispute since after delivery of the possession. With respect to the argument that in view of the Arbitration Clause in the deed of agreement, the jurisdiction of this Forum has been excluded, we are of the view that such contention is not tenable in view of the observation of the Hon’ble Apex Court in the judgment reported in 2000 Supreme Court Cases Vol. 5 Page C 294, simultaneously reported in AIR 2000 ( Supreme Court Page 208 ) wherein Hon’ble Supreme Court held that existence of an Arbitration Clause in the agreement is no bar to entertain the complaint under the Consumer Protection Act, 1986 as the remedy under this Act is in addition to the provision of any other law.

9.         Therefore, in view of the settled principle law on this score after the Pronouncement of the Hon’ble Apex Court we are of the view that the dispute over the exclusion  of jurisdiction of this Forum in view  of incorporation of Arbitration Clause in the agreement is set at rest. The case is quite maintainable. The point  is accordingly disposed of.

Point No. 2

10.       The instant case is a classic example of the adamancy of the O.P. no. 2 who persistently has been trying to deprive the complainant from the right of execution and registration of the deed of conveyance. We are shocked and surprised how the O.P. no. 2 relying on fragile subterfuge has been taking  recourse to delaying  tactics with the help of one side view of particular point of law and conveniently utilizing the same for shelving the execution of the deed of conveyance. The complainant has paid up the full consideration money ; he is in possession of the flat as mentioned in the schedule ; received the possession certificate but not having his deed of conveyance registered for the adamancy of the O.P. no. 2. We are of the view that the O.P. no. 2 did not discharge the basic obligation under the contract and it was just a mockery on the part of the O.P. no. 2 in refusing to execute and register the deed of conveyance with respect to the flat. This is therefore a fit case for passing necessary order with respect to the execution of the deed as well as handsome compensation against the O.P. no. 2 for  his deliberate inaction. The O.P. no. 1 has expressed his inability to assist the complainant as the power of attorney granted to him has already been revoked by the O.P. no. 2. Therefore, this is fit case where the deficiency of service within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986 has been perpetrated. The point no. 2 is accordingly disposed of.       

            Hence,

                                    O     R     D      E      R      E        D   

      That the HDF Case No. 24 of 2011 be disposed on contest with cost against O.P. no. 2 and without cost against O.P. no. 1.  

      The O.P. no. 2 be directed to execute and register the deed of conveyance in favour of the complainant within one month from the date of this order.

      That the complainant is further entitled to a compensation of Rs.40,000/- for mental  agony and harassment.

      That the complainant be further entitled to a cost of Rs. 10,000/- towards litigation.

      Both the orders be complied within 30 days hereof  failing the  complainant is at liberty to put the order into execution.

      Be it further mentioned that the total cost of Rs. 40,000 + 10,000 = Rs. 50,000/- if not paid within 30 days from the date of this order, it shall carry 10% interest till the date of full satisfaction of the decree.

      Supply the copies of the order to the parties, free of costs, as per rule.