Judgment : Dt.25.9.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act by Sri Sinjan Roy alleging deficiency in service on the part of the Opposite parties (1) Smt. Suparna Chowdhury (Developer), (2) Sri Shyamalendu Chandra, (3) Sri Suvendu Chandra, (4) Sri Biswanath Chandra, (5) Smt. Jhuma Biswas and (6) Smt. Gouri Dutta.
Case of the Complainant in brief is that the Complainant entered into an Agreement for Sale on 11.6.1996 in respect of a flat to be constructed at 2nd floor of North West side along with common roof right of top floor of a proposed buiding within the premises of Mouza-Bansdroni, J.L.No.45, Pargana Magura, R.S.No.389, Collectorate Touzi No.63/64 Part of C.S.Dag No.249, under Khatian No.489, Alipore, P.S.-Regent Park, 24-Parganas under KMC Ward No.113 under Borough No.XII with all easement, measuring 600 sq.ft. more or less on the 2nd floor (Flat No.B2 as per plan) of North West side within the premises No.124, Rifle Club Road, P.S.-Regent Park, Kolkata-700 070, at a consideration of Rs.2,40,000/- with the OP No.1 – Developer Smt. Suparna Chowdhuri who by virtue of a Development Agreement dt.18.7.95 and pursuant to terms of the said agreement a registered power of attorney executed by Basanti Rani Chandra who was land owner and predecessor in interest of opposite party Nos.2 to 6 empowered to do so. It is stated by the Complainant that after receiving the entire amount of consideration, the opposite party Developer handed over possession of the said flat on 5.4.1998 and since then the Complainant has been residing in the said flat. Subsequently, the land owner Basanti Rani Chandra died on 2.11.2004 leaving behind the opposite party nos.2 to 6 as legal heirs. It is further stated by the Complainant that though the Complainant made correspondences to the opposite parties on several occasions requesting them to execute and register the Deed of Conveyance and to provide completion certificate issued by the KMC but the Opposite parties applied dilatory tactics by one pretext or another to that effect. Having no other alternative, the Complainant served notices upon the Opposite Parties to complete the transaction, but no fruitful result has been yielded. Hence, the Complainant filed the instant case, praying for direction upon the opposite parties to pay compensation of Rs.1,00,000/- and cost of litigation of Rs.50,000/- for causing loss and injury suffered by the Complainant for delay on failing to produce the Completion Certificate and unlawful delay in the matter of execution and registration of Deed of Conveyance, to execute and register the Deed of Conveyance in favour of the Complainant in respect of the flat in question.
Notices were served and the opposite parties appeared and contested the case by filing written version.
The opposite party No.1 has filed the written version denying all material allegation made out against her stating, inter alia, that the Complainant in paragraph No.4 of the complaint stated that on receiving the full consideration amount the OP No.1 has handed over the flat in question to the Complainant on 5.4.1998 with full satisfaction and therefore, it is evident that there is no deficiency in service on the part of OP No.1.
It is specifically stated by the OP No.1 that at the time of delivery of the possession, the developer informed and requested the Complainant to get the flat in question registered in his favour within 30th April, 1998 but the Complainant failed to take any initiative to that effect and, therefore, the OP, developer, cannot be held responsible for non-registration of the flat in question. It is further stated by the OP No.1 that the predecessor in interest of OP NO.2 to 6 namely Basanti Rani Chandra executed a power of attorney in favour of the developer but subsequently the same became null and void as the said Basanti Rani Chandra died. The OP, developer, also stated that she is still ready to render all her cooperation to execute and register the Deed of Conveyance at any point of time.
The OP Nos.2 to 6 also denied and disputed each and every allegation as made out in the petition of complaint save and except which are admitted stating, inter alia, that Basanti Rani Chandra, w/o Late Sailendra Mohan Chandra was absolute owner of the piece of land lying and situated in Mouza – Bansdroni, J.L. No.45, Pargana Magura, R.S.No.389, Collectorate Touzi No.63/64 part of C.S.Dag No.249 under khatian No.489 within premises No.124, Rifle Club Road, P.S.-Regent Park, Kolkata-700 070 in respect of which executed Development Agreement on 18.7.1995 with the OP No.1, developer, Smt. Suparna Chowdhury and a general power of attorney was executed on 14.8.1996 in favour of OP No.1 empowering her for development of the land by constructing building including the right to enter into Agreement for Sale with the intending purchasers. It is specifically stated in the written version that the Power of Attorney was executed on 14.8.1996 and the Agreement for Sale was executed between the purchaser and developer on 11.6.1996 which implies that at the time of execution of Agreement for Sale i.e.11.6.1996, the Developer was not empowered to do so, since the Power of Attorney was executed on subsequent date i.e.14.8.1996 and thus the Agreement for Sale dt.1.6.1996 is to be considered as null and void. It is further specifically stated by Opposite Party Nos.2 to 6 that they did not receive any consideration amount from the Complainant and therefore, they have no liability to execute Deed of Conveyance in favour of him. It is also stated by the OP Nos. 2 to 6 that the OP No.1 committed breach of contract since she had no right to deliver any flat to any person unless and until the owner had been allotted the portion of the property as per owner’s allocation and therefore, delivery of possession of the flat and car parking space given to the purchaser is not valid and, therefore, the developer is liable to pay penalty @ Rs.500/- per day to the owners till the owners are put in possession at their allocated portion. It is also stated that in the Agreement for Sale dt.11.6.1996, it is stipulated that the purchaser shall not claim any right to any parking space, store room, terrace, etc. as in the schedule B of the Agreement for Sale dt.11.6.1996, the word common roof right has been inserted in hand writing and cannot be considered for adjudication. Accordingly, the OP Nos.2 to 6 have prayed for dismissal of the consumer complaint with exemplary cost.
The Complainant and the OPs adduced evidence on affidavit followed by cross examination in the form of questionnaire and affidavit-in-reply thereto.
The Complainant annexed Photostat copy of Development Agreement dt.18.7.1995, Agreement for Sale dt.11.6.1996, possession letter dt.5.4.1998, Money receipts dt.17.2.1998, 12.1.1997, 1.12.1996, 8.3.1997, 7.11.1998, 21.12.1998, 11.6.1996. 30.4.1997, 23.10.1997, 24.04.1997, 8.7.1997, payment certificate issued by the developer on 5.4.1998, Advocate’s sletter dt.12.09.2016, letter dt.9.8.2016 by Shyamalendu Chandra to the Complainant in reply to his notice dt.14.7.2016 through his Ld. Advocate letter d.28.9.2016, from Suparna Chowdhury to the Ld. Advocate of the Complainant in reply to his letter dt.13.8.2016.
The Opposite Party No.1 annexed Photostat copy of reply dt.28.9.2016 to the Advocate and possession letter dt.5.4.1998.
The OP Nos.2 to 6 have annexed Photostat copy of General Power of Attorney dt.14.8.1996.
In course of hearing Ld. Advocate on behalf of the Complainant reiterated the facts mentioned in the petition of complaint. Ld. Advocate further submitted that though the Complainant got possession of the flat in question on 5.4.1998 still the cause of action is continuing as the registration in respect of the said flat has not been executed so far. Ld. Advocate for the Complainant, furthermore, submitted the inordinate delay on the part of the OPs in execution and registration of Deed of Conveyance made the Complainant to suffer loss for which they are liable to compensate the Complainant.
However, on query the Complainant has submitted that he could not approach the developer & the land owner for execution and Registration of Deed of Conveyance owing to his transferable job.
In support of such contention, Ld. Advocate for the Complainant relied upon the decision of (1)NCDRC reported in (2002)2 WBLR (CPNC) 664 [M/s Syndicate Bank VS Bangalore Development Authority], (2) Supreme Court reported in AIR 2000 Supreme Court 380 in Civil Appeal No.2418 of 1996 [Lata Construction & Ors VS Dr. Ramesh Chandra Ramniklal Shah & anr.]
Ld. Advocate for opposite party No.1 submitted that the Complainant did not approach her for registration of Deed of Conveyance within specified time still she is willing to cooperate in registration of Deed of Conveyance though the power of attorney executed in favour of her is not in force presently.
Ld. Advocate for the OP Nos.2 to 6 has submitted that the developer had no locus standi to enter into agreement for sale with the Complainant on 11.6.1996 since no power of attorney executed in favour of her was in force on that date to do so. Ld. Advocate for the OP Nos.2 to 6 has further submitted that no money towards consideration has been received by the Opposite Party Nos.2 to 6 from the purchaser/complainant, so the OP Nos.2 to 6 has no liability to execute and register the Deed of Conveyance. Ld. Advocate for Opposite Party Nos.2 to 6 submitted that the developer violated the terms of development agreement by delivering possession of the flat in question prior to put the land owners in their possession, Ld. Advocate has furthermore submitted that the developer herself has no roof right and as such she cannot execute any agreement in respect of delivery of roof right to any one and, therefore, the Complainant cannot claim the roof right.
Points for determination
- Whether the instant case is maintainable before this Forum?
- Whether there is deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 – Admittedly the Complainant availed service of housing construction against making payment of consideration amount to the developer who was empowered to do so vide Development Agreement and Power of Attorney executed by the predecessor in interest of the OP land owners and thus become consumer under the OPs.
Further, the cause of action has arisen within the territorial jurisdiction of this Forum, the cause of action is continuing in nature since the transfer of the title in respect of the flat in question has not been done so far. Considering such aspect, we hold the instant consumer complaint is maintainable before this Forum.
Point No.1 is decided accordingly.
Point No.2 & 3 – Both points are taken up together for comprehensive discussion and decision.
Evidently, the Complainant entered into an agreement for sale with the developer on 11.6.1996 in respect of the flat in question. Admittedly, the Complainant paid the entire agreed consideration to the OP Developer and received possession from the developer without raising any question on 5.4.1998. The Complainant has alleged that the OPs have adopted dilatory tactics in execution and registration of Deed of Conveyance in respect of the flat in question in favour of him. In this respect, specific defence of OP developer is that the Complainant did not approach her at all for registration within specified time though she had delivered possession of the said flat on 5.4.1998. The land owners have stated that they did not receive any consideration from the Complainant purchaser and therefore, they are not liable to execute the Deed of Conveyance. The OP landowners have further stated that power of attorney was executed in favour of the developer on 14.;8.1996 by their predecessor in interest but before having been empowered by the land owner the developer executed Agreement for Sale on 11.6.1996 and, therefore, the said Agreement for Sale is liable to be considered as null and void.
On perusal of document, it appears that a Development Agreement was executed on 18.7.1995 by and between the predecessor in interest of the land owner and developer. As per terms of the said agreement at page No.7 paragraph No.1 & 2 the developer would construct a ground floor + 3 storied building on the premises owned by the land owner at premises No.124, Rifle Club Road, P.S.-Regent Park, Kolkata-700 070 the entire finance of construction of the said building would be provided by the developer who would have absolute discretion to sell the flat and car parking spaces and the covered spaces of the said building except four flats and 36% of common spaces and 36% of the sanctioned car parking spaces in the owners’ allocation. As per owners allocation, the owner would have four self-contained complete flats, 36% of common spaces and 36% of sanctioned car parking space. It is also mentioned in the said agreement under caption “Owners Allocation” that the owner shall not claim all the flats in the 1st and 2nd floor. It is evident that the flat in question is situated at 2nd floor and, therefore, it appears to be of developers allocation. As regards the issue raised by the OP Nos.2 to 6 regarding non-payment of consideration to them by the Complainant, it appears from the development agreement that the developer would receipt the consideration amount as per her discretion in respect of developers allocation portion no question of payment of consideration amount to the land owners arises at all. As regards the issue raised by the land owners that the developer entered into agreement for sale with the Complainant/purchaser before execution of power of attorney in favour of her so that the agreement for sale is to be considered as null and void. It is observed that as per the terms of development agreement the developer entered into agreement for sale with the Complainant and moreover the developer had handed over the possession of the flat in question on 5.4.1998 to the Complainant and, the power of attorney was also executed in favour of the developer also. The terms of the development agreement are binding upon the parties.
The OP landowners also raised issue that the developer has violated the terms of the development agreement delivering the possession of the flat in question prior to put the land owners in their possession. In this regard, we are of opinion that if the developer failed to hand over possession of the owners allocation to the land owners, the matter to be adjudicated separately and due to such dispute the Complainant cannot suffer. Moreover, the developer has expressed her willingness to co-operate for registration of the deed of conveyance in favour of the Complainant though the power of attorney is not in force now. The OP No.2 Shri Shyamalendu Chandra by his letter dt.28.9.2016 requested to provide him within 15 days from receipt of the letter duly attested copies of (i) possession letter, (ii) the payment certificate and receipt(s), (iii) agreement dt.11.6.1996 to resolve the issue and expedite the matter. It is implied that he is also agreeable to execute the deed of conveyance.
Regarding the issue raised by the OP Nos.2 to 6 that the Complainant shall not claim any right to any parking space, store room, terrace etc. as in the schedule B of the agreement for sale dt.11.6.1996, it appears from the development agreement dt.18.7.1995 that the developer’s allocation portion includes that the developer shall sell the flat and car parking spaces, covered spaces but does not include roof rights and as such the developer is not entitled to sell the roof right to the purchaser. In such view of the matters, we are of opinion that the Complainant is not entitled to have common roof right.
As regards the issue raised by the Complainant that dilatory tactics adopted by the OPs caused sufferings to him for which they are liable to pay compensation. However, as we observe, that the Complainant failed to produce a single piece of document that he had approached either of the OPs for registration of deed of conveyance before 2016 since receiving possession of the said flat on 5.4.1998. Moreover, in course of hearing Ld. Advocate for the Complainant has submitted that due to his transferable job, the Complainant could not arrange for registration of deed of conveyance. Therefore, it is evident that the Complainant has failed to prove his such allegation. Therefore, no question of payment towards compensation by the OPs arises at all.
In such view of the matter, we do not think that the OPs compelled the Complainant to file the instant case in respect of the attempts made by him for execution and registration of deed of conveyance by the OPs and, therefore, no order as to payment of cost is awarded in favour of the Complainant.
In the light of discussion made herein above, it is evident that the Complainant is a bona fide purchaser in respect of the flat in question, and, therefore, the said flat should be registered in favour of him.
The Complainant is also entitled to get a copy of completion certificate from the developer.
The decision of Hon’ble NCDRC upon which the Complainant have relied regarding award of compensation is not applicable to the instant case since in the instant case no allegation have been made regarding delay in delivery of possession whereas the case before NCDRC was of delay in delivery of possession.
Point Nos. 2 & 3 are decided accordingly.
In the result, the petition succeeds in part.
Hence,
ordered
The CC/521/2016 is allowed in part on contest against the OPs without compensation and cost.
The OP Nos.2 to 6 are directed to execute and register the deed of conveyance in respect of the flat on the 2nd floor, North West side being No.B2 within the premises No.124, Rifle Club Road, P.S.-Regent Park, Kolkata-700 070 along with undivided proportionate share of land within the said premises with help of the OP No.1 developer within one month from the date of this order.
The OP No.1 developer is directed to cooperate with the land owners by preparing Draft Deed etc. for registration of Deed of Conveyance as and when approached by the land owners.
