Samaresh Kumar Mitra, Member.

 This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainants, Prabir Kr. Ghosh and Pramit Kr. Ghosh that the property hereinafter to be called as “Case Property”, originally belonged to Susanta Kr. Ghosh who died intestate leaving wife Supriya Ghosh and 4 sons namely petitioners, op no. 1 and Sumit Kr. Ghosh and they became owners of 1/5^th each undivided. Subsequently Supriya Ghosh and Sumit Kr. Ghosh executed and registered a Deed of Gift, Being No. 02249/2012 in favour of petitioners and op no. 1 so far their 2/5^th share is concerned. And they also executed and registered another Deed of Gift in favour of Sumit Kr. Ghosh donating their share in the rest of the property left by Susanta Kr. Ghosh. After such transfer petitioners and op no. 1 got their names recorded mutated both in the local self Govt. as well as in the office of B.L. & L.R.O., Singur and used to pay rent and taxes regularly.

The complainants also state that op no. 1 proposed to raise a multi-storied building after demolishing the existing old building with  a view to develop and proper, adequate accommodation to each co-owners and also to fetch some money by selling flats. Being a developer op no. 1 has got proprietorship firm in the name as “M/S. Transasia Infrastructure” and he swayed away the petitioners by such proposal. The petitioners and their mother were facing tremendous problem in the matter of proper and sufficient accommodation in order to solve the impasse, they gave consent. OP no. 1 prepared 2 deeds, one an agreement for development and another General Power of Attorney. Complainants were arrayed as 1^st party while op no. 1 was figured as 2^nd party in the deed of agreement. It was settled that op no. 1 shall develop the property after demolition of the old building except the portion occupied by Sumit Ghosh and shall construct new multi-storied buildings and developer agreed to convey the flats to different intended purchasers on terms and conditions.

The petitioners also state that from clause 4 of the deed of agreement it has been specifically mentioned that the 2^nd party developer agreed to give 20% covered area to the 1^st party (10% each) out of the total FAR sanctioned in the building by the authority of CMC  and as per clause 5 petitioners on good faith executed and registered Power of Attorney dt. 21.2.2014.

The petitioners also state that op nos. 1 and 2 have been transferring flats one after another vide sale deed 60401485/15 and it is surprising to note that op no. 1 has transferred his portion in the benem of his wife vide Deed No. 60401406/15 dt. 3.6.2015 in respect of S.B.A.1252 sq.ft. and on 12.6.2015 op nos. 1 and 2 again transferred 5BA 950 sq.ft. vide Deed of Gift in favour of his wife, Deed no. 60401501/15 op no. 1 without knowledge and consent of petitioners has done all such act, without raising construction earmarked for petitioners, i.e. 2A and 3A flats. Then the petitioners lodged a complaint to op no. 3 who asked the parties to be present on 17.11.2015 at 12 noon. Though petitioners were present, yet the op no. 1 remained absent. Again petitioners requested the op no. 1 to complete the flats at 2^nd and 3^rd floor, but op no. 1 tarried time under some pretext or other. So it transpires that op no. 1 had no intention to make complete of 20% FAR of the building which tantamount to breach of trust, condition contrary and a complete deviation from agreement vis-à-vis power of attorney dt. 21.2.2014 and same has practically lost its force for non-prosecution.

The petitioners also state that stating all these they sent a lawyer’s letter dt. 26.11.2015 to ops who accepted but failed to reply which is inherent weakness on the part of op no. 1 and op  no. 1 has got no right to digest the entire consideration money by selling all flats and also no right to transfer his share in favour of his wife and op no. 1  cannot bypass the agreement dt. 21.2.2014.

The petitioners further states that op no. 3 has been informed about the developments but took no steps against op no. 1 and the petitioners also requested the op no. 3 not to mutate the names of purchasers of “Suhasini” because if op no. 1 is able to transfer each and every flats to different persons without completing the work earmarked for petitioners then the petitioners will invariably stand to suffer irreparable loss and injury.

The petitioners also state that the cause of action arose on 26.11.2015 when op no. 1 received lawyer’s letter and on 30.10.2015 when petitioners got C.C. of deed of gift dt. 12.6.2015 standing in the name of op no. 1’s wife from office of ADSR at Chandannagore.

So the Complainant filed this complaint petition praying directions upon the opposite party to pay sum of Rs.10 lakhs each for mental agony, harassment and deviation of duties and to complete the flats 2A and 3A of “Suhasini” earmarked for the petitioners as per agreement within a stipulated period and to hand over possession of the same to the petitioners and all costs of the case.

The opposite parties contested the case by filing written version denying inter-alia all the material allegations as leveled against them. This opposite parties submit that statements are true to the extent that it was agreed in between the parties that the op no.1 shall allot 20% of the covered area of the multistoried building to the petitioners and in pursuance of the clause no. 5 of the Developer’s Agreement, the petitioners executed a Power of Attorney in favour of the op no. 1 and thereby authorized him to carry out the works and activities in respect of construction as well as negotiate with the intending purchasers of the flats, shops, other covered areas and enter into Agreement for Sale and execute Deeds of Sale in favour of the intending purchasers of the residential flats within the allocation of the op no. 1 and also hand over the possession of the said residential flats to the said intending purchasers.

The opposite parties also submit that in pursuance of the terms and conditions of clause no. 9 of the Developer’s Agreement executed by and between the parties, the op no. 1 has the liberty to negotiate for the sale of the dwelling units, flats, tenements, rights in the building to be constructed and enter into agreement  for sale of the said flats, shops, other covered areas to be constructed on the property which are within the allocation of the op no. 1 and it is evident from the terms and conditions that the op no. 1  has  been permitted by the petitioners to enter into Agreement for Sale with the intending purchasers and has also been granted the absolute right and authority to sign, execute the same and the op no. 1 has the authority to collect advance money or booking amount in connection with the sale of the flats allocated in the portion of the op no. 1 and execute, register Deeds of Sale in favour of the intending purchasers and collect consideration money from the said intending purchasers. The petitioners have given permission to the op no. 1 to handover the possession of the flats allocated in the portion of the op no. 1 to any intending purchasers. It is pertinent to mention that the petitioners have been allocated 20% of the covered area of the multistoried building proposed to be constructed and the remaining 80% of the covered area has been allocated in the portion of the op no. 1.

The op no. 1 further submits that it is not true that the op no. 1 has no intention to complete the 20% of the FAR of the building which tantamount to breach of trust or violation of conditions of contract or there has been deviation from agreement or power of attorney or that the same has practically lost its force for non-performance. It is revealed from the Developer’s Agreement that the development work of construction of the proposed multistoried building will be completed by the op no. 1 within three years from 21^st February, 2014 i.e. from the date of execution of the Developer’s Agreement and only after completion of the proposed flats the op no. 1 shall handover the completed flats of the allocated portion of the petitioners to them and it has also been settled in between the parties that the petitioners shall have no right to interfere in any manner between the period of the handing over of the property for development by the petitioners and handing over of the completed flats of the building to the petitioners. In pursuance of the clause no. 6 of the Developer’s Agreement, the petitioners handed over the property for development after the execution of the agreement i.e. after 21^st February, 2014.

As the parties of this case are family in relation it was further settled in between them under clause no. 16 that the parties will solve all disputes amicably but instead of making any effort to reconcile their differences amicably, the petitioners have directly restored to court litigation even though there has been no breach of trust of the terms of the contract by the op no. 1.

Complainants and the opposite parties filed evidence on affidavit which is nothing but replica of complaint petition and the written version so it is needless to discuss.  

Both sides files written notes of argument which are taken into consideration while passing final order.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Prabir Kr. Ghosh & Pramit Kumar Ghosh are ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainants proved their case against the opposite party, as alleged and whether the opposite parties are liable for compensation to them?

DECISION WITH REASONS

 In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants Prabir Kr. Ghosh & Pramit Kumar Ghosh are ‘Consumers’ of the opposite party?

From the materials on record it is transparent that the Complainants are the owners of the land on which the impugned multistoried building stands. The complainants and the opposite party no.1 agreed to construct a building under development firm of the opposite party no.1 over the said land.  So the complainants are “Consumers” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986  and they are entitled to get service from the opposite party as consumers.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

  Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.10,00,000/- as compensation for mental agony and other expenses  and the delivery of possession of flat ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.   

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

    The complainants in their argument stated that the landed property described in the schedule of the complaint petition belongs to complainant No.1 & 2 and the opposite party No.1 who are brothers by relation. The opposite party No.1 being a developer proposed to raise a multistoried building over the aforesaid landed property namely ‘Suhasini’ with a view to accommodate each of this co-sharers by allotment of respective individual flats as well as for the sale of other flats to the intending purchaser within the allocated portion of the opposite party No.1.  The complainants accordingly registered a development agreement between the parties on 21.2.2014 and also registered a power of attorney dated 12.6.2015 empowering opposite party No.1 to carry out the project. Clause-4 of the said development agreement specifically mentioned that the second party/developer agreed to give 20% covered area to the first party out of the total FAR sanctioned in the building by the CMC Authority.  It is also stated in the said agreement in clause-3 that the construction works would be completed within three years from the date of execution of the development agreement.  Subsequently the opposite party No.1 & 2 by violating the terms and conditions of the agreement have been transferring flats one after another vide sale deed 60401485/15 to Biswanath Banerjee etc., showed no initiative to complete and transfer and or hand over possession of the flats earmarked for the complainants as per agreement.  The opposite party No.1 further caused to transfer of his portion in the name of his wife Mousumi Ghosh vide deed No.60401406/15 dated 3.6.2015.  The opposite party No.1 & 2 caused transfer of a super built up area of 950 Sq ft. in favour of his wife Mousumi Ghosh vide registered give deed being No.60401501/15 dated 12.6.2015 without the knowledge and consent of the complainants taking opportunity of the power of attorney.  The opposite party No.1 done all such acts without completing the construction earmarked for the petitioners i.e. flat No.2A & 3A and delivery the same to the complainants.  The opposite party No.1 has raised some illegal constructions violating the building plan sanctioned by the proforma opposite party No.3.  So, the opposite party No.3 served a show cause notice upon the opposite party No.1 and further directed to remove all the illegal constructions.  The petitioners on several occasions requested the opposite party No.1 to complete the flats at second and third floor but opposite party No.1 bypassed time under some pretext or other and had no intention to complete the 20% FAR of the building which tantamount to breach of trust and a complete deviation from agreement vis a vis power of attorney dated 21.2.2014.    The complainants sent lawyer’s notice dated 26.11.2015 to opposite party No.1 but he did not reply any more.  The petitioners assailed that the opposite party No.1 has no right to transfer his share in favour of his wife as if he has no existing interest over the case property and he cannot bypass the agreement dated 21.2.2014.  The complainants further assailed that the opposite party No.1 & 2 contesting this complaint case by filing written version assailing that the case is not maintainable before this Ld. Forum since there is no relationship of consumer with the opposite party but Hon’ble State Commission in RP No.142/2016 affirmed that the complainants are consumers of the opposite party and the dispute relates to a consumer disputes. So, the complaint case is maintainable before the Consumer Forum.

This opposite parties  by filing written notes of argument submitted that it was agreed in between the parties that the op no.1 shall allot 20% of the covered area of the multistoried building to the petitioners and in pursuance of the clause no. 5 of the Developer’s Agreement, the petitioners executed a Power of Attorney in favour of the op no. 1 and thereby authorized him to carry out the works and activities in respect of construction as well as negotiate with the intending purchasers of the flats, shops, other covered areas and enter into Agreement for Sale and execute Deeds of Sale in favour of the intending purchasers of the residential flats within the allocation of the op no. 1 and also hand over the possession of the said residential flats to the said intending purchasers.

The opposite parties also averred that in pursuance of the terms and conditions of clause no. 9 of the Developer’s Agreement executed by and between the parties, the op no.1 has the liberty to negotiate for the sale of the dwelling units, flats, tenements, rights in the building to be constructed and enter into agreement  for sale of the said flats, shops, other covered areas to be constructed on the property which are within the allocation of the op no. 1 and it is evident from the terms and conditions that the op no. 1  has  been permitted by the petitioners to enter into Agreement for Sale with the intending purchasers and has also been granted the absolute right and authority to sign, execute the same and the op no. 1 has the authority to collect advance money or booking amount in connection with the sale of the flats allocated in the portion of the op no. 1 and execute, register Deeds of Sale in favour of the intending purchasers and collect consideration money from the said intending purchasers. The petitioners have given permission to the op no. 1 to handover the possession of the flats allocated in the portion of the op no. 1 to any intending purchasers. It is pertinent to mention that the petitioners have been allocated 20% of the covered area of the multistoried building proposed to be constructed and the remaining 80% of the covered area has been allocated in the portion of the op no. 1. The op no. 1 further submitted that it is not true that the op no. 1 has no intention to complete the 20% of the FAR of the building which tantamount to breach of trust or violation of conditions of contract or there has been deviation from agreement or power of attorney or that the same has practically lost its force for non-performance. It is revealed from the Developer’s Agreement that the development work of construction of the proposed multistoried building will be completed by the op no. 1 within three years from 21^st February, 2014 i.e. from the date of execution of the Developer’s Agreement and only after completion of the proposed flats the op no. 1 shall handover the completed flats of the allocated portion of the petitioners to them and it has also been settled in between the parties that the petitioners shall have no right to interfere in any manner between the period of the handing over of the property for development by the petitioners and handing over of the completed flats of the building to the petitioners. In pursuance of the clause no. 6 of the Developer’s Agreement, the petitioners handed over the property for development after the execution of the agreement i.e. after 21^st February, 2014.

As the parties of this case are family in relation it was further settled in between them under clause no. 16 that the parties will solve all disputes amicably but instead of making any effort to reconcile their differences amicably, the petitioners have directly restored to court litigation even though there has been no breach of trust of the terms of the contract by the op no. 1.

After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainants being the consumers of the opposite party No.1 service provider filed the instant complaint petition for getting their shares in the constructed building over schedule mentioned property in accordance with the agreement dated 21.2.2014. Dispute cropped up when the opposite party No.1 failed to deliver the possession& to execute and register the deed of conveyance after completion of work in earmarked flats being Nos.2A & 3A to these complainants as per agreement. The opposite party No.1 by filing the written version as well as evidence on affidavit never showed his good gesture by handing over the flat in question even after filing the complaint petition.

 It is crystal clear that owners has allegations against the developer regarding the owners allocation and they filed this case for getting their share in accordance with the terms of the agreement and other reliefs against the opposite party No.1.

It is trite law that executing the agreement for development and getting power of attorney, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer/landowner. There is document available on the record that the complainants made several requests to the opposite party No.1 to get impugned flat handed over the deed executed in favour of them but it remained unheeded. The O.P. no.1 tried to evade his responsibility.

  Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties.  So we may safely conclude that the opposite party No.1 and the complainants being the landowners are also responsible to execute the deed of conveyance in favour of the complainants and other intending purchaser.

 Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting delivered the possession& to execute and register the deed of conveyance after completion of work in earmarked flats being Nos.2A & 3A  as per agreement for deed. Since the opposite party No.1 being landowner as well as well as developer did not take appropriate steps for delivery of possession & execution of sale deed in favour of the complainants within the time period  as per terms of the agreement, it has caused tremendous mental agony and pain to the complainants. However, considering the loss suffered by the complainants they are entitled to compensation of Rs.10,000/- from the opposite parties No.1.

  Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party No.1 for non delivery of possession, execution & registration of the impugned flats after completion of work by adducing cogent document/evidence so the prayer of the complainants is allowed on contest. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainants abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance.

ORDER

 Hence, ordered that the complaint case being No.222/2015 be and the same is allowed on contest against the opposite party No.1&2 and ex-parte against opposite No 3 with a litigation cost of Rs.6000/- to be paid by the opposite party No.1&2.

The Opposite Party No. 1 to 2 are directed to handover the flats after completion of work being No 2A & 3A in the “Suhasini” earmarked for the complainants  in accordance with the terms of the agreement dated 21.2.2014 within 45 days from the date of passing this order.

    The Opposite Party No.1&2 are directed to pay compensation amounting to Rs.10,000/- to the complainants for mental pain and agony within 45 days from the date of passing this order.

    At the event of failure to comply with the order the Opposite Party No.1&2  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.