The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the behest of the Opposite Party Nos.1 & 2/construction firm and its proprietor to impeach the Judgement/Final Order dated 30.06.2014 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint No. 100/2014. By the impugned order, the Ld. District Forum allowed the complaint lodged by the Respondent No. 1 Sri Apu Poddar Dhar under Section 12 of the Act ex-parte with certain directions upon the Appellants/developer and Respondent Nos. 2 to 4/landowners like – (i) to deliver possession of the subject flat to the complainant/respondent no.1 within 20 days and to execute and register the Deed of Conveyance within one month from the date of order, (ii) to pay Rs.1,00,000/- as compensation for harassment and mental agony and (iii) litigation cost of Rs.10,000/-.
The Respondent No. 1 herein being Complainant lodged the complaint before the Ld. District Forum asserting that on 29.11.2008 he had entered into an Agreement for Sale with the opposite parties to purchase of a self-contained flat measuring about 700 sq. ft. super built up area i.e. entire 1st floor at Premises No.614A, Block-E, Bagahajatin Colony, Kolkata – 700086, Dist- South 24 Parganas within the local limits of Ward No.101 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.9,00,000/-. The complainant paid an amount of Rs.6,50,000/- on diverse dates. Thereafter in the month of January, 2012 the developer handed over the possession later to the complainant but when the complainant went to take physical possession, the OP Nos. 3 to 5/landowners resisted the complainant from taking possession. Hence, the respondent no.1 approached the Ld. District Forum with prayer for several reliefs including a direction upon the opposite parties to deliver possession and to execute and register the Deed of Conveyance etc.
The Appellants or Respondent Nos.2 to 4 being Opposite Parties did not contest.
Relying upon the unchallenged testimony of the complainant and the documents annexed therewith, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint with certain directions upon the opposite parties as indicated above. Challenging the said order, the OP Nos. 1 & 2 have come up in this Commission with the present appeal.
Ld. Advocate for the Appellants has submitted that the impugned order remain silent as to non-payment of balance amount of Rs.2,50,000/-. He has also submitted that due to revocation of Power of Attorney dated 28.11.2011 it is hardly possible on the part of developer to give delivery of physical possession of the flat in question.
Ld. Advocate for the Respondent No.1, on the other hand has contended that an inter-se dispute between the landowner and the developer cannot be used as a ploy to wriggle out the obligation under the agreement and to leave the buyer at lurch and if necessary, the order may be executed through the machinery of the Ld. District Forum.
On the other hand, Ld. Advocate for OP No.3 placing a copy of Death Certificate of respondent no.2/OP No.3 Aroti Dasgupta has informed that the said Aroti Dasgupta passed away on 07.01.2014 prior to lodging complaint on 06.03.2014 and as such the order passed by the Ld. District Forum is a nullity in the eye of law.
Undisputedly, one Hara Prasad Dasgupta, since deceased acquired a piece of land measuring about 2 cottahs 5 chittaks by way of Deed of Gift from the Refugee and Rehabilitation Department of Govt. of West Bengal on 28.05.1992. The said Hara Prasad died intestate on 16.01.2004 leaving behind him his wife – Aroti Dasgupta, since deceased, one son – Sri Arunabha Dasgupta and one daughter, Smt. Rupa Roy Chowdhury (nee Dasgupta). On 11.12.2007 the respondent nos. 2 to 4 being legal heirs of Hara Prasad had entered into an Development Agreement with the appellant no.1 construction firm represented through appellant no.2 its proprietor to develop and raise a multi-storied building at Premises No.614A, Block-E, Baghajatin Colony, P.S.- Jadavpur, Kolkata – 700086, Dist- South 24 Parganas within the local limits of Ward No.101 of KMC. The respondent nos. 2 to 4 being landowners had also executed one Power of Attorney in favour of OP No.2/appellant no.2 on the self-same date authorising him to enter into Agreement for Sale etc. with the intending buyers in respect of developer’s allocation.
By dint of the Development Agreement and the Power of Attorney conferred upon them, the appellants/OP Nos. 1 & 2 on behalf of themselves and also on behalf of landowners had entered into an Agreement for Sale with the respondent no.1/complainant to sell a self-contained flat measuring about 700 sq. ft. super built up area i.e. entire 1st floor at Premises No.614A, Block-E, Bagahajatin Colony, Kolkata – 700086, Dist- South 24 Parganas within the local limits of Ward No.101 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.9,00,000/-. The money receipts available with the record indicate that complainant/respondent no.1 has paid an amount of Rs.6,50,000/- on diverse dates out of total consideration amount of Rs.9,00,000/-. The appellants, however, handed over possession certificate to the respondent no.1 in January, 2012 but the respondent no.1 found it difficult to get possession on account of resistance made by the landowners. In fact, the landowners revoked the Power of Attorney on 28.11.2011.
It is well settled that after accepting the consideration amount, it is bounden duty on the part of developer – (a) to deliver possession, (b) to execute Sale Deed and (c) to obtain Completion Certificate from the local authority and until and unless it is done, the developer/respondent no.1 cannot shirk off his responsibility. In this regard, the landowners have no locus standi to raise any objection in getting the flat in favour of Respondent No. 1 from the allocation of the developer. The landowner may have genuine grievances against the developer but for which they may take action against the developer. In a decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati – Vs. – Uppal Agencies Pvt. Ltd. & Anr.] the Hon’ble Supreme Court in Paragrah-23 has observed thus – “ We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a Civil Court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider”. In a decision reported in 2014 (3) CPR 91 [Smt. V. Kamala & Ors. – Vs. – K. Rajiv] the Hon’ble National Commission has observed that an inter-se dispute between owner and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreement and leave the buyer in lurch.
Whatever dispute be there between the landowners and the developer, the same can be settled in an independent proceeding. As per agreement, the landowners had given consent to the developer to transfer the property falling to its share. Therefore, the rights of a bonafide purchaser cannot be defeated only on the ground that the landowners were not a party to the Agreement for Sale executed between the developer and the buyer.
What I find from the order that the Ld. District Forum has disposed of the complaint in a cryptic manner by observing thus – “From the unchallenged testimony of the complainant, the case of the complainant is proved. We find no reason to disbelieve the same”. The record reveals that the Ld. District Forum did not consider any materials whatsoever on the record and in a birds eye view proceeded to dispose of the complaint. The caption ‘Decision with Reasons’ does not show any reason how the complainant has been able to prove his case and how the opposite parties were found deficient in rendering services to the respondent no.1. It is also not clear how the Ld. District Forum has arrived at a conclusion that the notice upon OP No.3 could be served, particularly when OP No.3 was no more in this world at the time of filing petition of complaint. I also do not find any discussion as to non-payment balance amount of Rs.2,50,000/- by respondent no.1/complainant.
The Hon’ble Supreme Court in a decision reported in AIR 2010 SCW 1753 (Secretary & Curator, Victoria Memorial – vs. – Howrah Ganatantrik Samity) has observed – “Thus, it is evident that the recording of reasons is principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who adversely affected may know, as why his application has been rejected”.
It is quite apparent that the order is a cryptic one without having any reason. Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substituted subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a Higher Forum.
Considering all the above, I have no other option but to remit the case on remand for disposal of the same afresh by a speaking order.
In view of the above, the appeal is allowed on contest. There will be no order as to costs.
The impugned judgement/final order is hereby set aside.
The parties are directed to appear before the Ld. District Forum on 05.07.2018 positively and on that date the Opposite Parties must file written version and if it is so filed, the Ld. District Forum will proceed to dispose of the case on merit. It is made clear that the name of OP No.3 Aroti Dasgupta, since deceased be strike off from the petition of complaint as the legal heirs of OP No.3 are already on record and in this regard the Respondent No.1/complainant must file an amended copy of petition of complaint on that date positively.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information.
