Date of hearing : 8th day of September, 2015
Date of Judgment : 17th day of September, 2015
JUDGMENT
The instant appeal u/s 15 of the Consumer Protection Act 1986 (hereinafter referred to as the ‘Act’) is at the instance of O.P. No.1 (Developer) against the complainant (Purchaser) and O.P. Nos.2 & 3 (land owners) to impeach the judgement/final order dated 8th December, 2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24-Parganas at Barasat in consumer complaint No.356 of 2014.
The respondent No.1 herein being complainant initiated the consumer complaint u/s 12 of the Act alleging that the O.P. Nos. 2 & 3 being owners of their respective shares in respect of ‘A’ Schedule property has entered into an agreement for development with O.P.No.1 on 14th July, 2010 and 10th July, 2010. At the time of doing so, they have also executed two Power of Attorney in favour of O.P.No.1 for completion of the development work in respect of G+4 storied building. According to the terms and conditions of the development agreement the O.P. No.1 obtained sanctioned plan from Dum Dum Municipality. Since the O.P’s. jointly have agreed to sell a flat, the complainant entered into an agreement for sale in respect of a flat being No.402 on the 3rd floor, measuring about 550 sq. ft. which is described in the ‘B” schedule of the petition of complaint on 26.2.2012 at a consideration price of Rs.12,00,000/- only. The complainant on the date of agreement has paid Rs.4,00,000/- as consideration amount and subsequently he has made payment on diverse dates totallng Rs.9,50,000/-. The complainant has submitted that he is ready to make payment of balance amount of Rs.2,50,000/- but the opposite party No.1 has avoided to receive the balance consideration amount and refused to execute and register the Deed of Conveyance and to deliver the possession of the flat. Hence, the case with the following prayers viz. – (a) for an order directing O.P. Nos. 1,2 and 3 to execute Deed of Sale in respect of ‘B’ schedule property; (b) to deliver possession of the flat in favour of the complainant; (c) an order of compensation of Rs.4,00,000/- for deficiency in service and unfair trade practice, etc.
The O.P’s. have duly received the notices but did not appear before the DCDRF to contest the same. Therefore, under compulsion the case was heard and decided ex parte against the O.P. No.1 with cost of Rs.500/ and against O.P. No.2 & 3 without any order as to costs. The O.P. Nos. 1 to 3, jointly and severally were directed to execute and register the Deed of Conveyance in respect of the flat in question which prompted the O.P. No. 1 to prefer this appeal.
The point arises for consideration in this appeal as to whether or not the Ld. DCDRF was justified in passing the order impugned.
On a close scrutiny of the materials on record and having heard the Ld. Advocates for the respective parties it emerges that O. P. Nos. 2 & 3 being land owners and O.P. No. 1 being Developer had entered into development agreement on 14th July, 2010 for the purpose of construction of a G+4 storied building at ‘A’ schedule property. Both O.P. Nos. 2 & 3 have executed Power of Attorney in favour of O.P.No.1 for undertaking of such development project. In terms of the agreement for development, O.P.No.1 obtained sanctioned plan from Dum Dum Municipality in respect of ‘A’ schedule property and on 26.2.2012 has entered into an agreement with the O.P’s. to purchase a flat on the ground floor of the said project comprising of an area of 550 sq. ft. at a consideration amount of Rs.12,00,000/- together with proportionate share and facilities. It is also evident that out of total consideration amount the complainant has paid Rs.9,50,000/- and the balance amount of Rs.2,50,000/- is due and payable by the complainant to the O.P.No.1.
Now, the complainant in para 13 of the petition of complaint has specifically averred that he is always ready and willing to perform her part of contract but the O.P. No.1 to 3 refused to do so and they are unwilling to execute a Deed of Conveyance and to hand over the flat in question. It clearly indicates that the relation between the complainant and the opposite party is consumer-service provider exists. In other words, the complainant has paid a bulk of the entire consideration amount therefore she must be construed as a consumer within the meaning of section 2(1)(d) of the Act. At the time of hearing O.P. No.1/Developer has filed one written note of argument wherein it has been mentioned that during subsistence of the agreement he entered into an agreement for sale with One Debabrata Nag on 3rd March, 2014 and after accepting the entire consideration money the possession of the flat in question was handed over to Shri Nag who is in possession of the flat. In this regard, an electricity bill has been filed to substantiate the same. Therefore, it is not possible on the part of the Developer to hand over the possession to the purchaser. It clearly demonstrates deficiency in service as well as unfair trade practice inasmuch as during the existence of a valid and legal agreement without refunding the entire amount with interest when the O.P. No.1 /Developer transferred the property to some other person as stated above, it clearly speaks of highhandedness and arrogance on the part of a Developer which must be termed as unfair trade practice on the part of O.P. No.1.
Ld. Advocate for the respondent has submitted that a builder after accepting the consideration money is bound to execute the Deed of Conveyance. He has referred a decision reported in 2015 (2) CPR 310 (Bhikhu Bhai @ Vishal Bhai Iswar Bhai Desai –vs- Hira Bhai Kika Bhai Patel & anr.) wherein the National Consumr Disputes Redressal Commission, New Delhi has held that builder is to execute Sale Deed after accepting consideration from buyer. The Ld. Advocate for the respondent No.1/Purchaser has also submitted in compliance with the order of the Ld. DCDRF he deposited a sum of Rs.2,50,000/- before the Ld. DCDRF on 5.2.2015 and when he entire consideration amount has been paid, the Developer should have obeyed and carried out the said solemn order and when without doing so, the Developer/owners are opposing the said order, the appeal must be dismissed with exemplary costs.
However, Ld. Advocate for the appellant has filed a brief note of argument wherein several points have been raised.
Firstly, the maintainability of the case has been challenged on the ground that in accordance with the observation of Hon’ble High Court in Rita Das-vs-Mrs. Jayashree Ghosh & ors. reported in 2012 (3) CLJ 291 and the decision reported in connection with Krishna Abasan Pvt. Ltd. –vs- Krishna Sarkar and anr. in C.O. No.2986 of 2013 datd 07.11.2014 a Consumer Forum has no authority to exercise its jurisdiction in accordance with the provisions of Section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993. On the other hand, Ld. Advocate for the respondent No.1 referring a decision of National Consumer Disputes Redressal Commission, New Delhi reported in 2012 (4) CPR 191 (Arun Khanna –vs- Smt. Sashi Sharma and ors.) has contended that a consumer complaint cannot be construed as a suit within the meaning of section 9 of the Civil Procedure Code and as such a Consumer Forum has the right to entertain such an application as an additional remedy in accordance with section 3 of the Act. He has also referred a decision of Hon’ble National Commission reported in 2008 CTJ 954 (NCDRC Bar Association –vs- Davinder Malhotra & others) wherein it has been held that Consumer Fora in the country are bound to follow the decision rendered by the National Commission in the consumer cases filed under the provisions of Consumer Protection Act. Ld. Advocate for the respondent No.1/Purchaser has also referred a decision of Hon’ble Supreme Court of India reported in 2009 SC 3127 (EICM Exports Ltd. –vs- South Indian Corporation (Agencies) Ltd. & anr.) In para 11 of the said decision it has been observed – ‘‘The word ‘suit’ has a technical meaning which denotes proceedings instituted under section 9 of the Civil Procedure Code. 1908. All legal proceedings in the country are not suits. There are petitions/complaints/applications before various tribunals or authorities but they are not suits as per Section 9 of the CPC. In our opinion, a complaint before Consumer Forum is not a suit, and hence, the Indian Carriage of Goods by Sea Act, 1925, is not applicable to the facts of the present case and the Consumer Protection Act, 1986 will only be applicable’’.
Therefore the submission as to challenge the maintainability does not appear to us substantial inasmuch as the relation between the parties as consumer-service provider exists and as such we discard it.
Secondly, it has been submitted that the Ld. DCDRF has passed order ex parte and disposed of it in hot haste without giving adequate opportunity to the appellant to contest the same. Such a submission also could not inspire us. The record speaks that notices were duly served upon the O.P’s and in spite of that they did not appear. Section 13(3) of the Act provides -‘no proceedings complying with the procedure laid down in sub-sections 1 an 2 shall be called in question in any court on the ground that principles of natural justice have not been complied with.’ In our case, when notices upon the O.P’s have been duly served, the question of early disposal in hot haste does not arise because a Consumer Court is under obligation to dispose of proceedings preferably within 3 months.
Thirdly, it has been submitted that the complainant was not ready and willing to perform her part of contract and in accordance with the provisions of section 16(c) of the Specific Relief Act, 1963 the complaint must plead and prove that he/she is ready and willing to perform her part of contract. In support of his contention he has placed several decisions. Those decisions are of irrelevant consideration in this case because we are not dealing with regular suits like Specific Performance of Contract for Sale before a competent Civil Court. We are dealing with a matter of consumer dispute in a summary procedure for a limited purpose. The fact remains that the complainant being consumer has paid Rs.9,50,000/- out of Rs.12,00,000/- as consideration price in favour of O.P. No.1 and O.P. No. 1 being service provider should have acted accordingly. Moreover, in the Deed it was specifically mentioned that conveyance will be registered by O.P. No.1 in favour of the complainant within one month from the date of delivery of possession of the flat. Surprisingly enough, without delivering the possession, the O.P. has taken the stand that complainant was unwilling to perform her part of contract. In para 13 of the petition of complaint the complainant has specifically mentioned that she is always willing to perform her part of conduct but the O.P. Nos.1 to 3 are not performing their part of contract. Therefore, the decisions referred by the Ld. Advocate for the appellant reported in AIR 1996 SC 116 (Thirurnajam –vs- Dr. R. Jaganmohan Rao & ors.; AIR 2004 (SC 3504 (P.D. Jain and another –vs- Gopala Krishna) and other decisions have no manner of application in our case.
Lastly, Ld. Advocate for the appellant has submitted that the agreement for sale is not properly stamped and unregistered and as such the Ld. DCDRF was under obligation to impound the same before admission in accordance with the provisions of section 22 to 38 of the Stamp Act, 1899. In reply to the same Ld. Advocate for the respondent No.1 has placed reliance to a decision reported in (2008) 3 WBLR (CPSC) 174 (Smt. Rita Das –vs- Luci Dutta and others) wherein the question has been settled to the effect that where the opposite parties had entered into an agreement on a non-judicial stamp paper and undertook to develop the property, they cannot take advantage of their own wrong. Therefore, the submission of Ld. Advocate for the appellant in this regard also is devoid of any merit.
After giving due consideration to the submissions advanced by the Ld. Advocates for the parties and on going through the materials on record we do not find any reason to interfere with the order passed by the Ld. DCDRF. Being a builder/developer the opposite party No.1 is bound to execute the sale deed in favour of the complainant and as such the appeal being meritless deserves dismissal.
For the reasons aforesaid, the appeal is liable to be dismissed with costs of Rs.5000/- to be payable by the appellant in favour of respondent No.1.
In the result, the appeal is dismissed on contest with cost of Rs.5000/- payable by the appellant in favour of respondent No.1, i.e., the complainant of the case.
The judgment/final order dated 8th December, 2014 passed by the District Consumer Disputes Redressal Forum, North 24-Parganas at Barasat in consumer complaint No.356 of 2014 is hereby affirmed.
