Samaresh Kumar Mitra, Member.
This case has been filed by the complainant, Smt. Manisha Chatterjee u/s.12 of the Consumer Protection Act, 1986.
The petitioner states that being attracted by the construction at the Amarendra Sarani, Uttarpara, Hooghly, on search she went upto the opposite party no. 1 and on enquiry, the opposite party no. 1 disclosed himself to be the president of the Abhipsa Apartment and further disclosed that the construction of the Abhipsa Apartment was on the verge of completion and the advance booking for the proposed flat was going on and proposed the petitioner to make booking for purchase of a flat of her choice, otherwise in case of delay, the petitioner would not get any flat, in such situation she had collected land paid money of opposite party Rs. 51,000/- only on account of booking of flat no. AA 402 vide cheque no. 388086 dt. 18.7.06 on UTI Bank selecting to purchase flat no. A 402 at Abhipsa Apartment under Acropolis Builders (p) ltd.
The petitioner also states that although she was pressing for sale agreement and asked the op no. 1 to show if there was any agreement in between the owner of the property and the developers which was re-presented by the op no. 1 or others, if any. On all the occasions, the opposite party no. 1 had assured the petitioner to get it done in proper course of time and she went on making payment of the entire consideration price for booking of the flat no. A-402 of the Acropolis builders (p) Ltd and one car parking space at the ground floor of the said building part by part during 17.7.06 to 11.5.2008.
The petitioner also states that she choose to purchase the flat no. A 402 at Abhipsa Apartment and the possession was handed over the said A 402 flat on completion of total payment of the said flat and a garage at the ground floor of the said Abhipsa Apartment and in course of first booking of the said flat A-402 at 83, Amarendra Sarani at Abhipsa Apartment was settled at Rs. 13,94,000/- only and the garage in the ground floor therein was settled at Rs. 1,00,000/- only and further paid a sum of Rs. 71,236/- only extra work for the flat.
The petitioner also states that although she pressed for copy of the agreement with the owner and the developer for satisfaction of the legal matters including ownership of the property and the condition of agreement but on all occasion assured that she was nothing to be worried and the opposite party no. 1 assured to hand over possession of the flat to the petitioner and would further execute and register the sale deed by the owner and other developers in time and the opposite party no. 1 submitted that the owners opposite party no. 1 and other developer are members of the good family. Handover the possession of the flat and garage and the registration of the sale deed would surely be done, in this way the opposite party no. 1 took time from the petitioner giving one reason and others.
The petitioner also states that ultimately having lost her faith upon the opposite party no. 1 she sent a letter dt. 14.5.18 through his advocate asking the opposite party no. 1 to register the deed of sale within 15 days from the date of receipt of the letter. The opposite party no. 1 has received the Advocate’s letter on 15.5.18 and even on expiry of 30.5.18, the opposite party no. 1 did not arrange for registration of the flat and the garage.
The petitioner also states that whereas she agreed to hold and enjoy a proposed self contained residential flat in the 4th floor, Block no. A-402 measuring 1370 sq ft marked B thirteen seventy sq ft and garage measuring 114 sq ft in the ground floor and paid the entire consideration price as stated earlier. The opposite party no. 1 in consideration of the payment of the entire price for the flat and the garage, has handed over possession to her wherein she and her member of family exerting her right of possession since 2.1.2008.
The petitioner also states that after receipt of the money by the opposite party no. 1 and possession by the petitioner since 2.1.2008 which is a continuous cause of action which has become grave on receipt of the letter asking the opposite party no. 1 to register the sale deed in favour of her and even after delivery of flat in her favour and recording of her name in the Municipal Assessment register has been pressurizing. The opposite party no. 1 to make registration of the flat in question and for that non-registration of the flat in favour of her, the Govt. is deprived of the revenue i.e. stamp and registration fees for a long time.
The petitioner also states that she is entitled to get the registration of the deed in respect of the schedule of the property and the ops are bound to make registration of the deed in respect of the schedule of property.
The petitioner also states that through a Advocate’s letter dt. 14.5.18 asking the opposite party no. 1 to execute and register the proper sale deed in respect of the schedule of the property within 15 days from the date of receipt of the Advocate’s letter dt. 14.5.2018 the period given has already been lapsed and she was always ready and willing to get the sale deed executed and registered with proper stamp duty and registration fees.
The petitioner also states that the cause of action has arisen on…1.08 at 83, Rajendra Avenue, Uttarpara, P.S.- Uttarpara, Dist.- Hooghly which is within the jurisdiction of this court and the possession having handed over, there is recurring cause of action till filing of this case.
Complainant filed the complaint petition praying direction upon the opposite parties to execute and registrar the sale deed in favour of the complainant in respect of the schedule flat property at an early date and to pay compensation of sum of Rs.40,000/- only for willful delay and harassment on extension and registration of the sale deed and cost of litigation of Rs.40,000/- in favour of the petitioner and any other reliefs as the Ld. Forum may deem fit and proper.
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 from the statements of the petition it has been admitted by the petitioner that in the year 2008 the flat and garage in question was handed over to the petitioner and since then the scheduled flat and garage are in exclusive possession of the petitioner and in spite of repeated request made him the petitioner never attempted for registration, which was obligatory on part of the petitioner and before handling over the possession of the scheduled flat and garage, petitioner was well aware that he had the power for registration of the flat as he was fortified with the Registered Power of Attorney executed by the land owner but in spite of that the petitioner did not do so and the original land owner died in the year 2014 and after lapse of more than 10 years from the date of handing over of possession suddenly, the petitioner sent a lawyer’s letter which was itself a time barred letter, but in spite of that he categorically stated that the opposite party no. 5 filed a Title suit No. 72912 for the year 2017 and an order of injunction is still pending against him so there was no deficiency in service caused by him and moreover this case is hit by pecuniary jurisdiction of this Ld. Court as the present market value of the schedule flat and garage is valued at more than Rs. 50,00,000/- only.
The opposite party No.5 also contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that the petitioner expressed her willingness before the opposite party no. 1 to purchase a dwelling flat and it is also fact that petitioner made booking for purchase of the flat with her choice and she also paid the sum of Rs. 51,000/- on account of booking for the dwelling flat by cheque at first and to that effect, the opposite party no. 1 is sole responsible to the allegations of the petitioner in her case.
The opposite party no. 5 also states that the petitioner paid consideration money of a lot for purchase of the dwelling flat in question and the opposite party no. 1 has liability to overcome the allegations made by the petitioner in her case and the opposite party no. 1 assured the petitioner to sell the dwelling flat to her and also assured to handover the possession of the flat to the petitioner.
The opposite party no. 5 also states that he is aware to the matter of sending lawyer’s notice to the opposite party no. 1 asking him to complete the sale of the flat and the opposite party no. 1 has been handling all the affairs of the apartment with his whims including the matter of selling flats and others without the consent of opposite party no. 5 who is also one of the directors of the Acropolis Builders (P) Ltd and the petitioner is at liberty to complete the purchase of the dwelling flat, if the allegations of petitioner be adjudicated by the Ld. Forum and the petitioner is further entitled to the reliefs as she prayed.
The opposite party no. 5 also states that there are many cases which are pending before the Ld. Court at Serampore against the opposite party no. 1 regarding evil activities of the opposite party no. 1 in connection with all affairs of the Acropolis Builders (p) Ltd and the opposite party no. 1 disregarding the directorship of opposite party no. 5 of the above noted concern, committed all the acts without the knowledge and consent of opposite party no. 5 and so he is liable to face all legal consequences solely.
Complainant filed evidence on affidavit which is nothing but replica of complaint petition.
Both sides files written notes of argument which are taken into consideration while passing final order.
ISSUES/POINTS FOR CONSIDERATION
1). Whether the Complainant Manisha Chatterjeeis 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 her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
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 Manisha Chatterjee 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 opposite party, as the complainant being the intending purchaser paid consideration money and possessing the schedule mentioned flat & garage, so she is entitled to get service from the opposite party 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 for compensation for mental agony and other expenses 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 is that she intends to purchase a flat being flat no.A-402 & garage situated at the ground floor of a multi-storied building namely “ABHIPSA APARTMENT” at 83, Amarendra Sarani, Chandannagar, District.-Hooghly and accordingly there was an agreement between the petitioner/purchaser and the developer i.e. Acropolis Builders (P) Ltd on 01.08.2008 in respect of purchase of a flat measuring 1370 sq ft & a garage having built up area 114 sq ft including proportionate share of common portions on the ground floor of the building namely ABHIPSA APARTMENT at holding No.85, R.S. Khatian No.155, J.L.No.1, Mouza – Chandannagar, District.-Hooghly. Subsequently the complainant paid the total consideration and she is in possession since completion of construction. The dispute cropped up in between the parties when the opposite party No.1 avoided to execute the deed of conveyance in favour of the complainant inspite of several reminders of the complainant. The petitioner submitted that she went on making payment of the entire consideration money for booking the flat No.A-402 of the Acropolis Builders (P) Ltd and one car parking space at the ground floor of the said building part by part during 17.7.2006 to 11.05.2008. the complainant agreed to hold and enjoyed a proposed self contained residential flat in the 4th floor, block no.A-402, measuring 1370 sq ft and garage measuring 114 sq ft in the ground floor and paid consideration price and after getting the consideration money for the flat and the garage the opposite party handed over the possession to the complainant and the complainant alongwith her family members exerting their right of possession since 02.01.2008 the complainant has already assessed her name in the assessment register of Uttarpara-Kotrung Municipality and paying taxes for the same. But the opposite party No.1 took time from the petitioner giving reasons one after another. That ultimately the complainant lost faith upon the opposite party No.1 and sent letter dated 14.5.2018 through her Ld. Advocate asking the opposite party no.1 to register the deed of sale within 15 days from the receipt of letter but the opposite party No.1 received the letter on 15.05.2018 and even on expiry of 30.5.2018 the opposite party No.1 did not arrange for registration of the flat and garage.
In his written argument the opposite party No.1 averred that the delivery of possession in respect of flat and garage was made in favour of the petitioner in the year 2008 and thereafter on several occasions the opposite party No.1 requested the petitioner for making arrangement of registration which is the obligatory part of the petitioner. But the petitioner did not perform her obligation rather the petitioner took time from the opposite party no.1 giving false pretext and intentionally avoiding to make arrangement of registration work and in the meantime the landowner died in the year 2014 and the said owner during his life time executed Power of Attorney became useless and in this way the petitioner passed away near about 10 years from the date of handing over the possession of the flat and garage. That suddenly after lapse of 10 years a lawyer notice was served upon the opposite party no.1 and the advocate of the opposite party No.1 replied on 24.5.2018 and the answering opposite party no.1 requested the petitioner to make arrangement of registration work. But suddenly after elapsing 10 years he received an advocate notice which is also replied by him and it is also averred by the answering opposite party that a civil suit is pending before competent civil court in the year 2017 and impugned court passed an order of injunction against the opposite party No.1 so there is no deficiency of service on his part.
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 & garage paid agreed value and in possession since then. Dispute cropped up when the opposite party No.1 to 6 failed to execute ®ister the deed of conveyance then the complainant filed the instant complaint petition praying direction upon the opposite party to execute and register the flat & garage which has been specifically mentioned in schedule. It is crystal clear that owners has no allegation against the complainant and they are ready to execute the deed of conveyance but the case filed by the complainant praying reliefs against the opposite party including the owners for getting her Flat & garage executed & registered by the opposite parties.
The opposite party No. 1 in his written version and written notes of argument admitted that he has taken the consideration money of the flat & garage from the complainant in different times and gave possession to the complainant so he is under liability to execute and register the sale deed in favour of the complainant but fact remains that the landowners are not willing/ available to execute and register the deed of conveyance. Delay of execution & registration of deed of this complainant caused 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 she is in possession since 2008, copy of possession letter also filed and the opposite party never disputed the payment. Section 3 of the Consumer Protection Act,1986 clearly speaks that the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force. So this Forum is capacitated enough to adjudicate the case although a civil suit is pending.
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 her 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 party No.2 to 6 are also 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 her 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 her, she is entitled to compensation of Rs.10,000/- from the opposite parties No.1.
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 & garage 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 her case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?
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.75/2018 be and the same is allowed on contest against the opposite party No.1 & 5 and exparte against opposite No 2,3,4 & 6 with a litigation cost of Rs.6000/- to be paid by the opposite party No.1.
The Opposite Party No. 1 to 6 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 is directed 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.
