Samaresh Kr. Mitra, Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant, Sanjoy Mukherjee.
The case of the complainant’s in short is that on 20th April the opposite party No. 2 & 3 made a sale agreement with the complainant and after discussion the complainant was agreed to purchase the North-West-East facing a flat on the fourth floor of the said building measuring 1014 Sq ft covered area (approx.) and super built up area 202 Sq ft totaling 1216 Sq ft with a tune of Rs.5,77,600/- only at the rate of 475/- per Sq ft from the opposite party No.2 & 3. On the same day i.e. on 20.4.2004 the complainant paid Rs.50,000/- to the opposite party No.2 & 3 as advance money and for this the opposite party No. 2 & 3 issued money receipt.
On 10th December, 2004 the complainant paid Rs.30,000/- by cheque and Rs.45,000/- by cash totalling Rs.75,000/- to the opposite parties as second installments. On 19.01.2005 the complainant paid Rs.4,00,000/- by cheque to the opposite parties as part payment and on 12.08.2005 the complainant paid Rs.44,000/- to the opposite parties. Thereafter on 12.12.2005 the complainant paid Rs.8,600/- to the opposite party as last installments. The complainant paid total Rs.5,77,600/- (Rs.50,000/- + Rs.75,000/- + Rs.4,00,000/- + Rs.44,000/-+ Rs.8,600/-) to the opposite parties.
After receiving the total payment the opposite parties handed over the physical possession of the said flat to the complainant and the complainant shifted into the said flat and the complainant started to live there. It was decided between the parties that execution of flat (deed of conveyance) will be completed very soon.
The complainant approached the opposite parties as well as land owner to execute the deed of conveyance in favour of the complainant but every time the opposite parties neglected the complainant to execute the deed of conveyance on various plea. The complainant requested all of them year after year but the deed of conveyance was not registered in favour of the complainant. After waiting a prolonged period without getting any intimation or steps from the opposite parties the complainant sent a legal notice to the opposite parties on 24.1.2017 requesting them to execute the deed of conveyance in favour of the complainant. The opposite party No.3 replied that he is ready to execute the deed of conveyance but he cannot take the responsibility of opposite party No.1 & 2.
Finding no other alternative the complainant compelled to file this case before this Forum with a prayer to direct the opposite parties to execute the deed of conveyance of the said flat in favour of the complainant, to appoint the court officer/ advocate commissioner to register the deed of conveyance on behalf of the absent opposite parties in favour of the complainant, to pay Rs.50,000/- towards compensation for mental agony and pain and to pay Rs.10,000/- as litigation cost.
The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that all other flat owners got their respective flats registered before DSR(II) Hooghly and /or ADSR, Chandannagar during the period 2006 to 2009 relying upon the same power of attorney granted by this opposite party to the opposite parties No.2 & 3 but the complainant failed to get his flat registered. This opposite party will refer those deeds at the time of evidence of the parties. It is deemed that the complainant was never ready and willing to get his flat registered for which the deed was not executed within that period, failing which, registration by power of attorney is debarred at present, in fact, the complainant is guilty of his own wrong and with the ulterior motive instituted this case speaking of harassment and deficiency of service.
This opposite party further submits that the complainant is not entitled to get any relief since he was at fault and he is not prejudiced for any acts of the opposite parties but for his own wrong and as such has incurred monetary losses for his own acts and wrongs and these opposite parties are not at wrong nor there is any harassment or deficiency of service on their part. So, this opposite party prayed before this Forum to dismiss the instant case with costs.
The opposite party No.2 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that opposite party No.1 is the owner of the property in question and the opposite party No.2 and 3 are the developers of the project popularly known as M/s.Srishti. This opposite party No.2 being a developer did not receive any consideration money from the petitioner. This opposite party came to learn that opposite party No.3 herein received the consideration amount from the complainant.
This opposite party further submits that if the complainant paid the entire consideration money of the flat in question to the developer i.e. the opposite party No.2 & 3, then in that case the opposite parties have no objection to execute and register the deed of sale in respect of the flat in question in favour of the complainant. On 22.4.2007 the instant opposite party No.2 wrote a letter to the opposite party No.3 i.e. the another partner of M/s. Srishti through registered post with A/D wherein the opposite party No.2 asked the opposite party No.3 about the details of payment transaction of the complainant but opposite party No.3 has failed to reply the same. The opposite party No.3 is very much aware that he received the maximum amount of consideration amount. As such this opposite party prayed to dismiss the case with cost.
The opposite party No.3 also contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that opposite party No.3 is a developer in the instant case and on 1.11.2002 the opposite party No.3 made an agreement with Sri Arun Kumar Nandy, the land owner i.e. opposite party No.1 for development of his land and construct the building and to sale the flat to the intending buyers.
On 1.1.2003 the land owner(opposite party No.1) given a Notarial General Power of Attorney to execute the Deed of Conveyance with the intending purchasers before the authority concerned but the office of the ADSR, Chandannagore, Hooghly did not allow the opposite party No.3 to execute the deed of conveyance on the basis of Notarial General Power of Attorney. This opposite party requested the opposite party No.1 repeatedly to come and execute a Registered General Power of Attorney in favour of the opposite party No.3 but the opposite party No.1 did not pay any heed and as a result the opposite party No.3 is being harassed in every steps and he did not execute any deed of conveyance to any purchasers particularly the present complainant. In this regard the opposite party No.3 has no negligence or any deficiency of service towards the complaint.
Complainant & opposite party filed evidence on affidavits which are nothing but replica of complaint petition and 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 Complainant Sri Sanjoy Mukherjee is a ‘Consumer’ 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 complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
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 Complainant Sri Sanjoy Mukherjee is a ‘Consumer’ of the opposite party?
From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the complainant being the intending purchaser paid consideration money and possessing the schedule mentioned flat so he is entitled to get service from the OP as consumer.
(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.60,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses and litigation cost including the cost of the 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 case of the complainant’s in short is that on 20th April the opposite party No. 2 & 3 made a sale agreement to purchase the North-West-East facing flat on the fourth floor of the said building measuring 1014 Sq ft covered area (approx.) and super built up area 202 Sq ft totaling 1216 Sq ft with a tune of Rs.5,77,600/- only at the rate of 475/- per Sq ft from the opposite party No.2 & 3.
The complainant paid total Rs.5,77,600/-(Rs.50,000/-+Rs.75,000/-+Rs.4,00,000/-+ Rs.44,000/-+ Rs.8,600/-) to the opposite parties in total and the opposite party issued money receipt. After receiving the total payment the opposite parties handed over the physical possession of the said flat to the complainant and the complainant is living there since then.
The complainant approached the opposite parties as well as land owner to execute the deed of conveyance in favour of the complainant but every time the opposite parties neglected the complainant to execute the deed of conveyance on various plea. After waiting a prolonged period without getting any intimation or steps from the opposite parties the complainant sent a legal notice to the opposite parties on 24.1.2017 requesting them to execute the deed of conveyance in favour of the complainant. The opposite party No.3 replied that he is ready to execute the deed of conveyance but he cannot take the responsibility of opposite party No.1 & 2.
Getting no other alternative the complainant filed the instant case before this Forum praying direction upon the opposite parties to execute the deed of conveyance of the said flat in favour of the complainant, to appoint the court officer/ advocate commissioner to register the deed of conveyance on behalf of the absent opposite parties and other reliefs as prayed in the prayer portion of the complaint petition.
The opposite party No.1 in his written version & argument averred that all other flat owners got their respective flats registered before DSR(II) Hooghly and /or ADSR, Chandannagar during the period 2006 to 2009 relying upon the same power of attorney granted by this opposite party to the opposite parties No.2 & 3 but the complainant failed to get his flat registered. It is also assailed that the complainant was never ready and willing to get his flat registered for which the deed was not executed within that period, failing which, registration by power of attorney is debarred at present, in fact, the complainant is guilty of his own wrong.
The opposite party No.2 contested the case denying all the material allegations and submitted that opposite party No.1 is the owner of the property in question and the opposite party No.2 and 3 are the developers of the project popularly known as M/s. Srishti. This opposite party No.2 being a developer did not receive any consideration money from the petitioner. That on 22.4.2007 the opposite party No.2 wrote a letter to the opposite party No.3 i.e. the another partner of M/s. Srishti through registered post with A/D wherein the opposite party No.2 asked the opposite party No.3 about the details of payment transaction of the complainant but opposite party No.3 has failed to reply the same. The opposite party No.3 is very much aware that he received the maximum amount of consideration amount.
The opposite party No.3 also contested the case and submitted that opposite party No.3 is a developer in the instant case and on 1.11.2002 the opposite party No.3 made an agreement with Sri Arun Kumar Nandy, the land owner i.e. opposite party No.1 for development of his land and construct the building and to sale the flat to the intending buyers. On 1.1.2003 the land owner(opposite party No.1) given a Notarial General Power of Attorney to execute the Deed of Conveyance with the intending purchasers before the authority concerned but the office of the ADSR, Chandannagore, Hooghly did not allow the opposite party No.3 to execute the deed of conveyance on the basis of Notarial General Power of Attorney. This opposite party requested the opposite party No.1 repeatedly to come and execute a Registered General Power of Attorney in favour of the opposite party No.3 but the opposite party No.1 did not pay any heed and as a result the opposite party No.3 is being harassed in every steps and he did not execute any deed of conveyance to any purchasers particularly the present complainant. In this regard the opposite party No.3 has no negligence or any deficiency of service towards the complaint.
After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainant paid the consideration money during agreement for sale and after completion of the flat paid agreed value and in possession since then. Dispute cropped up when the opposite party No.1 to 3 failed to execute & register the deed of conveyance then the complainant filed the instant complaint petition praying direction upon the opposite party to execute and register the flat which has been specifically mentioned in schedule. It is crystal clear that the opposite party No.3 has no allegation against the complainant in respect of execution and registration of flat but he could not register the same due to in apathetic attitude of the landowner. Inspite of several request to execute registered power of attorney the opposite party no.1 pit no bid at the utterance of the developers so the complainant suffered at the behest of negligence on the part of the opposite party for which the complainant compelled to prefer the recourse of law before the Consumer Forum. Opposite party has no allegation against the complainant in respect of payment. So mere direction to execute & register the impugned flat by the opposite party will mitigate the dispute in between the parties. Opposite party No.1 in his written notes of argument assailed that he is not the party of the agreement so there is no question of deficiency of service. The agreement took place in between the complainant and the Opposite party No.2&3. So if any liability arises may be against the opposite party No.2&3.
The opposite party No. 2&3 in their written version and written notes of argument admitted that they have taken the consideration money of the flat from the complainant in different times and gave possession to the complainant so they are under liability to execute and register the sale deed in favour of the complainant but fact remains that the landowners are not willing to give registered power of attorney as the ADSR, Chandannagore, Hooghly did not allow the opposite party No.3 to execute the deed of conveyance on the basis of Notarial General Power of Attorney. So from the face of the case record it is crystal clear that the execution & registration of deed of this complainant could not be done due to deficiency of service of the opposite parties so the opposite party cannot evade their responsibility of paying compensation to this complainant.
It is pertinent to mention that the complainant paid full consideration money, xerox copy of receipt filed and he is in possession since 2006, and the opposite party never disputed the payment.
It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of him but it remained unheeded. The O.P. no.1 tried to evade his responsibility by putting blame on other opposite parties.
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 parties No.1 to 3 are responsible to execute the deed of conveyance in favour of the complainant.
Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the deed executed in his favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the complainant is in possession considering the loss suffered by him, he is entitled to compensation of Rs.10,000/- from the opposite parties.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat by adducing cogent document/evidence so the prayer of the complainant 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 complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant 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.76/2017 be and the same is allowed on contest against the opposite party No.1 to 3 with a litigation cost of Rs.6000/- to be paid by the opposite party.
The Opposite Party No. 1 to 3 are directed to execute and register the deed of conveyance in favour of the complainant in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainant may get the deed executed through the machinery of this Forum.
The Opposite Party No.1 to 3 are directed jointly and/ or severally to pay compensation amounting to Rs.10,000/- to the complainant 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 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.
