SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal has been directed by the Appellants against the order dated 25.02.2020 in Complaint Case being No. CC/227/2018 passed by Ld. DCDRC Kolkata – II (Central).
Initially a complaint case has been filed by the complainants as purchasers of flats against the developing company and developer ( Respondents No. 3 & 4 of the appeal/OPs No. 1 & 2 of the original complaint case) and the landowners (Appellants No. 1,2 3 and Respondent No. 5 of the Appeal/OPs No. 3,5,6 & 4). During the proceeding of complaint case on the landowners namely Sanjay Kumar Mukherjee expired and his legal heir was substituted as OP No. 6/Appellant No. 3. During the pendency of the Appeal two landowners being Appellant No. 1 & 2 expired and in their legal heirs were substituted as Appellants No. 4 , 5 and Appellants No. 6, 7 respectively vide order no 8 dated 18.11.2022.
The facts of the case in brief are that the Respondent No. 3/OP No. 1 is the firm represented by its proprietor, Respondent No. 4/OP No. 2 of the original complaint case who is also an attorney of Appellant NO. 1 , 2 and husband of Appellant No. 3 and Respondent No. 5/ OP No. 4 of the complaint case. The appellants and the Respondent No. 5, i.e., OP No. 4 of the original complaint case are the joint co-owners of the property measuring 4 cottahs 8 ¾ chitacks lying and situated at Premises No. 18, Paddapukur Lane, P.S. Ballygunge, Kolkata-20 under Ward No. 69.
Having satisfied with the agreement for development in between the landlords and the developer of the said property and the registered power of attorney dated 10.07.2003 executed by the land-owners in favour of the OP No. 2/proprietor of OP No. 1, the complainants entered into an agreement for sale on 23.09.2004 with the OP No. 1 represented by its proprietor/OP No. 2/developer duly registered on 23.09.2004 for purchasing a flat on 4th floor being Flat No. 4B measuring 800 sq. ft. super built up area at the premises in question for a consideration of Rs.14,00,000/- in view of the sanctioned plan being No. 80145 dated 28.11.2003 including all common facilities and amenities mentioned in the agreement and one covered car parking space with proportionate undivided share of common land. The said registered agreement for sale has been recorded in the Office of ADSR, Alipore. Having satisfied with the full payment of consideration and allowed expenditure the developer/OP. No. 2 has put the complainants in possession of the said flat on 31.03.2005 in the multi-storied building on the abovementioned premises. In spite of request and reminder several times to OPs for registering the said flat by a deed of conveyance with completion certificate yielded no result. This put the complainants to undergo mental suffering and harassment since possession of the flat in the year 2005. In respect of said flat and possession thereof, a separate assessee has been provided in favour of the complainants by the KMC and the payable tax has been assessed. The complainants have been provided with symbolic possession in the year 2005 but till date the execution and registration of the flat as well as the completion certificate is due. There is gross deficiency in rendering service on the part of the developers/OP as regard to registration of the flat in complaint with the agreement dated 23.09.2004.
Finding no other alternative, the complainants have filed a complaint case before the Ld. DCDRC, Kolkata – II (Central) praying for direction upon OPs to register the deed of conveyance of the flat described in Schedule “B” constructed on the premises described in Schedule “A” as mentioned in the petition of complaint along with compensation of Rs.5,00,000/- and litigation cost of Rs.15,000/-.
Respondents No. 3 & 4/OPs No. 1 & 2 filed their written version before the Ld. District Commission. The specific case of OPs No. 1 & 2 is that OPs No. 3 to 6 being the owners of the property lying and situated at 18 Paddapukur Lane, Kolkata 700020 entrusted OPs No. 1 & 2 for the development of the property and to construct a building after demolishing the existing structure standing thereon. In terms of development, OPs No. 1 & 2 obtained sanctioned building plan from the KMC and constructed the building accordingly. The OPs No. 1 & 2 made some additional alteration of the building at the instance of the landowners and the land-owners also executed a declaration that they would responsible for such additional alteration and the landowners would take the necessary steps. Subsequently, the landowners did not fulfil the declaration and also revoked the power of attorney dated 10.07.2003. The OPs No. 1 & 2/developer could not process for obtaining the completion certificate from the KMC. The OPs No. 1 & 2 duly handed over the possession of the said flat to the complainants with a request of the flat registered but the complainants did not come forward to get it done. Therefore, the complainant should be dismissed with cost.
OPs No. 3 & 5 also filed their written version before the Ld. DCDRC. Substituted OP. No. 6 adopted the written version of OP. No. 3& 5. The main contention of the OPs No. 3 & 5 is that the consumer case is barred by limitation as per Section 24A of CP Act, 1986. The complainants are not the consumers since they have transferred the subject flat to the third party. The OPs No. 3 & 5 and OP No. 6 namely, Sanjay Kumar Mukherjee (since deceased) filed three consumer cases against OPs No. 1 & 2 before the Ld. District Commission Unit-I, Kolkata. Those cases were disposed of and OPs No. 1 & 2 were directed to supply the completion certificate and the occupation certificate to the OPs No. 3, 5 & 6 (since deceased), within three months failing which the developer would be liable to pay damages @ Rs.30 per day till supply of the completion certificate and occupation certificate. The OPs No. 1 & 2 neither complied with the order nor paid the compensation of Rs.5,000/- and litigation cost of Rs.1,000/- as per order. The developer was also directed to pay the rent for interim accommodation @ Rs.5,500/- for the months from April to June, 2005 failing which the amount shall carry instalment @ 8 % p.a. Then OPs No. 1 & 2 filed an appeal before this Commission and this Commission upheld the order of Ld. DCDRC with little modification. Then the developer filed application under Section 227 of the Constitution of India challenging the orders of this Commission being C.O. No. 1158 of 2018, C.O. No. 1162 of 2018, and C.O. No.1164 of 2018 and those applications are still pending. The general power of attorney executed by the landowners has already been lapsed in 2005 and the OPs No. 1 & 2/developer has no selling right in respect of 4 flats in the constructed building and hence the landowners/OPs have prayed for dismissal of the case.
Respondent No. 5/OP No. 4 of the complaint case did not appear before the Ld. District Commission to contest the case. As such, the case was proceeded ex parte against the Respondent No. 5/OP No. 4 before the Ld. District Commission.
The Ld. District Commission allowed the complaint case on contest against the developers/OPs No.1 & 2/Respondent No. 3 & 4and the land-owners/OPs No. 3,5 & 6/Appellant No. 1, 2 & 3 and allowed ex parte against other land-owner/OP No. 4/Respondent No. 5 with the directions which is reproduced as under:
“i) The OPs are directed to execute and register Deed of Conveyance in respect of flat No. 4B measuring about 800 sq.ft. super built up area consisting of 02 bed room, 01 living, 01 dining room, 01 kitchen, 02 bath cum privy on the 04th floor of Premises No. 18. Paddapukur Lane, Kolkata- 700 020 with right to park a motor care on the ground floor of the said building in favour of the complainants.
ii) The OPs are jointly and severally directed to make payment of Rs/ 10,000/- as costs of litigation in favour of the complainants.
iii) The complainants shall bear the stamp duty and cost of registration also.
Time of compliance is 60 days from the date of order failing which complainants may enforce the order u/s 25 & 27 of the C.P. Act, 1986 against the OPs and also execute and register Deed of Conveyance of the subject flat through the machinery of the Forum.”
Being aggrieved by and dissatisfied with the above order, the landowners namely, Sri Ashok Kumar Mukherjee, Dr. Ajay Kumar Mukherjee, and Smt. Mina Mukherjee filed the instant appeal against the complainants/Respondents No. 1 & 2, OPs NO. 1 & 2/Respondents No. 3 & 4/developer and other landowners namely, Sri. Ashok Kumar Mukherjee/the OP NO. 4 of the complaint case ( the Respondent No. 5 of the instant appeal).
The appellants filed the instant appeal since the judgment passed by the Ld. District Commission is one sided, biased and is based on presumption and assumption. The Ld. District Commission has erred in law holding that Complainants No. 1 & 2 i.e., the purchasers committed fraud upon the Forum by deliberately removing Page No. 4 containing Clause No. 10.08 of the development agreement dated 14.12.2002 where it is clearly mentioned that the developers shall make a payment to the landowners for execution and registration of the deed of conveyance but in the present case no such payment was made by the developers after receiving the completion certificate.
Ld. Advocate for the appellants has also submitted that the complainants committed fraud in relation to court proceedings which is criminal offence and thus, the complaint case is not maintainable. Moreover, the Ld. Advocate has submitted that the Respondents No. 3 & 4 i.e., the developing firm and the developer committed breach of contract by not adhering to Clause No. 10.08 of the development agreement dated 14.12.2002 which is mandatory on the part of the developer. There is no deficiency on the part of the landowners. The appellants/landowners alone execute and register the deed of conveyance in favour of the complainants unless as per Clause No. 10.08 of the development agreement payment is raised by the developer because the flat is sold from the developer’s allocation and unless such payment is raised by the developer the grand-sons have no liability whatsoever and the Ld. District Commission overlooked this clause and came to an erroneous conclusion by allowing litigation cost against the landowners. The developer is solely responsible for not registering the deed of conveyance and as such, no liability whatsoever can be attached to the present appellants/the landowners. Due to deficient and negligent act on the part of the developer, the land-owners were compelled to file complaint case being No. CC/203/2005, CC/204/2005 and CC/205/2005 before the Ld. District Commission at Kolkata Unit-I for redressal of their grievances against the Respondents No. 3 & 4/developers and the Ld. District Commission was pleased to hold that OPs No. 1 & 2/developer are liable for deficiency in service and it also holds that the landowners were victimized by the developer. But in the instant case, the Ld. District Commission did not at all consider this point and wrongly hold that the land-owners are deficient in service.
The Ld. Advocate for the appellantshas also submitted that the complainants filed the complaint case in collusion with OPs No. 1 & 2 to harass and malign the landowners. The Complaint case is not at all maintainable. Hence, he has prayed for modification of judgment dated 25.02.2020 to the extent by setting aside the litigation cost of Rs.10,000/-.
Ld. Advocate for the complainants/Respondents No. 1 & 2 has submitted that the disputes as alleged by the landowners have been started between the developer and the landowners and the complainants are denied their legitimate right of registration of the deed of conveyance in respect of the flat and right of a car parking space in ground floor for no fault on the part of the complainants. The complainants/purchasers are duty bound to uphold the rights as put on the record in the registered agreement for sale with the developer and landowners executed on 23.09.2004. The rift, if any, between the developer and the landowners have put the complainants to undergo immense mental sufferings and financial hardship towards cost of registration besides other incidental cost due to non-registration of the flat.
Ld. Advocate for the complainants has further submitted that in case of construction of a multi-storied building belonging sanctioned plan, completion certificate under KMC is mandatory and in absence of which the complainants would be denied all facilities to be provided by the KMC under law. The Ld. District Commission has discussed at length in the final order dated 25.02.2020 and passed its order without direction upon the developer to provide completion certificate without considering the Paragraph No. 11 of the complaint petition and the prayer E which runs as “ ……… and passed such order or orders which was honoured deem fit and proper for the ends of justice.”
Therefore, the Ld. Advocate for the complainants has prayed for direction upon the landowners and developers to cause execution and registration of the deed of conveyance in view of the registered agreement for sale dated 23.09.2004 in connection with development agreement dated 14.12.2002 and further the complainants have prayed for direction upon the developer to provide completion certificate and an amount of compensation to the complainants due to their mental sufferings and harassment. Providing completion certificate by the developer is a legal obligation and immaterial whether prayed for or not by the complainants. In support of his argument, Ld. Advocate for the complainants referred the following judgments:
- 2014 (3) CPR 91 (NC)
- 2018 (1) CPR 112 (NC)
- 2018 (4) CPR 724 (NC)
- 2017 (4) CPR 709 (NC)
- 2015 (1) CPR 230 (NC)
- 2019 (2) CPR 577 (NC)
Ld. Advocate for the Ops No. 1 & 2/the proprietorship firm and the developer has submitted before this Commission that Appellant No. 1 (since deceased) Appellant No. 2 (since deceased) and the Appellant No. 3 filed three separate cases before the Ld. District Commission, Kolkata Unit- I being case No. CC/203/2005, CC/204/2005 and CC/205/2005 respectively alleging non-supply of completion certificate and occupancy certificate by the developers. Subsequently, the Ops No. 1 & 2 moved before the Hon’ble Commission and also before the Hon’ble High Court challenging the order passed by the Ld. Commission time to time. Appellant No. 1 (since deceased), Appellant No. 2(since deceased) and Appellant No. 3 received money @ Rs. 2,00,000/- in the execution proceedings before the Ld. District Commission upon amicable settlement. Appellants-landowners deliberately suppressed the fact while preferring the instant appeal.
Ld. Advocate for the developer/OPs No. 1 & 2 has further submitted that as on date the OPs No. 1 & 2/developers are not holding any power to execute and register the deed of conveyance in favour of the complainants. The developing company and the developer has no intention to stand in the way if the deed of conveyance are registered through court. Therefore, OPs/developing firm and the developer humbly pray before this Commission to dismiss the instant appeal otherwise the developer will be highly prejudiced.
Upon hearing the parties at length and on perusal of entire materialson record, it is admitted fact that complainants entered into a registered agreement for sale with the developer/Ops No. 1 & 2 on 23.09.2004 for purchasing a flat on 4th floor being flat No. 4B measuring 800 sq. ft. super built up area consisting of two bed rooms one living, one dining room and one kitchen, two bath-cum-privy in the G+4 storied building besides right to park a motor car in the ground floor on the land of the landowners at the Premises No. 18, Paddapukur Lane, Police Station Ballygunge, Kolkata-700020.
In view of the development agreement between the landowner and developers executed on 14.12.2002 and having satisfied with the flat belonging to developer’s allocation the complainants have paid full consideration of Rs.14,00,000/- to the developer. On full satisfaction the complainants were put in possession of the flat on 31.03.2005.It is also admitted fact that the land owners of the property revoked the power of attorney in the year 2005. Due to non execution and registration of deed of conveyance in respect of the flat , the complainant has filed the complaint case before the Ld. DCDRC. Both the Ld. Advocates on behalf of the landowners and the developers have submitted before this Commission that the power of attorney has been revoked by the landowners which was given to the developer. The main allegations of the appellants/landowners except one landowner namely Sri Ashok Kumar Mukherjee (who has not filed this instant appeal and being Respondent No. 5 of the instant appeal) is that the developer has cheated the landowners and more precisely the developer has not obeyed the clause no. 10.08 of the development agreement dated 14.12.2002. Ld. Advocate for the developer has submitted that after revocation of power of attorney they are not in a position to execute and register the deed of conveyance in favour of the complainants for the flat in question. The Ld. Advocate for the developer has further submitted that the Commission may order to execute and register the deed of conveyance in favour of the complainants for the flat in question by the machinery of the District Commission on their behalf. It is their bona fide that as per agreement for sale they have given the possession to the complainants in the year 2005 but after revocation of power of attorney by the landowners they could not execute and register the deed of conveyance in favour of the complainants, therefore, there is no deficiency in service on the part of the developing company and the developer.
In course of argument, Ld. Advocate for the landowners , who has filed the instant appeal has submitted that they have revoked the power of attorney in favour of developer. The Ld. Advocate for the developer has conceded to the same.
Based upon argument on behalf of all sides, we are of the view that the landowners and the developers are passing buck each other and for their dispute the complainants are suffering. Relying upon the judgement passed by the Hon’ble National Commission in Smt. V. Kamala & Ors. Vs K.Rajiv, Rep. By his G.P.F. Holder, K.V. Bhabji, & Ors. Reported in 2014 (3)CPR 91 NC the disputes between the owners and builder cannot be permitted to be used as a ploy to wriggle out of obligations under Agreements and leave buyers in lurch. In this case also the agreement for sale of the subject property was entered into way back in the year 2004. Though the landowners revoked the power of attorney in favour of the developer the Ld. District Commission has passed its order to execute the deed of conveyance along with the other reliefs by all the OPs. Since the developers /OPs No. 1 & 2 have not filed any appeal against the order of the Ld. DCDRC , we are of the view that the developers /OPs No. 1 & 2 are not aggrieved with the said order. Therefore, we are not in a position to modify the order to the extent by dismissing the complaint case against the developing firm and the developer /OPs No. 1 & 2. It is the obligatory duty of the landowners and the developer to execute and register the deed of conveyance of the flat owners in the name of the complainants. The complainants are in possession of flat since 2005.
The argument on behalf of the Appellants that ‘ the developer has not obeyed the Clause No. 10.8 of the development agreement’ cannot be acceptable since this Clause belongs to development agreement entered by and between the landowners and the developer. Moreover, this Clause relates ‘obligations of the owners’. Therefore, it is crystal clear that complainants cannot be suffered for not adhering Clause No. 10.8 by the parties , if any.
In view of the above discussion, we find that there is no need to interfere with the order passed by the concerned Ld. District Commission. Accordingly, the order of the Ld. DCDRC is hereby affirmed.
Since appellants No. 1 & 2 already expired and the appellants No. 4, 5, 6 & 7 have been substituted as their legal heirs and the date of compliance of the order has already been expired, the order the Ld. District Commission be modified to the following extent:
The landowners being Appellants No. 3,4,5,6, 7 and Respondent No. 5 and the developing firm and the developer being Respondents No. 3 , 4 & 5 are directed to execute and register Deed of Conveyance in respect of flat No. 4B measuring about 800 sq.ft. super built up area consisting of 02 bed room, 01 living, 01 dining room, 01 kitchen, 02 bath cum privy on the 4th floor of Premises No. 18. Paddapukur Lane, Kolkata- 700 020 with right to park a motor care on the ground floor of the said building in favour of the Respondents No. 1 & 2/ purchasers within 60 days from passing of this order.
Appellants No. 3,4,5,6, 7 and Respondent No. 3,4 & 5 are jointly and severally directed to make payment of Rs/ 10,000/- as cost of litigation in favour of the Respondents No. 1 & 2/ purchasers.
The Respondents No. 1 & 2/ purchasers shall bear the stamp duty and cost of registration also.
Time of compliance is 60 days from the date of order failing which Respondents No. 1 & 2/ purchasers may enforce the order u/s 25 & 27 of the C.P. Act, 1986 against the Appellants No. 3,4,5,6, 7 and Respondent No. 3,4 & 5 and also execute and register Deed of Conveyance of the subject flat through the machinery of the Ld. District Commission.
As a result, the appeal is dismissed on contest with above modification.
The appeal is , thus, disposed of accordingly.
