Date of filing : 8.9.2017
Judgment : Dt.05.02.2019
Mrs. Sashi Kala Basu, President.
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Babulal Pyne and Smt. Babulal Pyne alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Hemanta Sarkar, (2) Sri Nanda Lal Das, (3) Sri Madan Mohan Das, (4) Sri Swapan Kumar Das, (5) Smt. Maya Das, (6) Sri Shyamal Kumar Das, (7) Sri Tapan Kumar Das, (8) Smt. Rita Pramanik, (9) Sri Sunil Ranjan Das, (10) Smt. Mousumi Das, (11) Sri Hirendra Nath Das, (12) Smt. Manisha Dhar, (13) Smt. Gita Das, (14) Sikha Das, (15) Smt. Basanti Das, (16) Sri Jaydeep Das, (17) Smt. Putul Roy, (18) Smt. Bulbul Pramanik, (19) Smt. Aruna Sengupta and (20) Smt. Arati Kayal.
Case of the Complainant, in brief, is that Amarendra Nath Das and Bhupendra Nath Das were the joint owners of the land measuring about 8 cottahs 8 chittaks 21 sq.ft. which was numbered by the Municipal Corporation as Premises No.28/A, 28/B and 28/C, Dr. Nagen Ghosh Lane, Dhakuria, P.S.-Garfa. Said owners executed a general power of attorney on 27.6.2002 in favour of OP No.1 to develop or construct a multi-storied-building and also a development agreement was executed whereby the developer was permitted to sell the developer’s allocation after accepting full consideration. On 30.11.2008 an agreement for sale was executed by and between Sankar Dey and Hemanta Sarkar with the Complainant to sell a flat on the ground floor northern side measuring approximately 500 sq.ft. super built up area at a total consideration of Rs.7,00,000/-. According to the terms of the said agreement, Complainant paid the entire amount on different dates. As per the agreement developer, Hemanta Sarkar was to execute the deed of conveyance in favour of the Complainant within 18 months. But, in spite of the entire payment of consideration amount, the deed of conveyance has not been executed, even though possession of the said flat has been handed over to the Complainant on 27.2.2009. During the passage of time actual land owners Amarendra Nath Das and Bhupendra Nat h Das died leaving behind their legal heirs OP No.2 to 20 in this case. Said owners were also approached for execution of the deed of conveyance. But they did not pay any heed. Ultimately, a notice was also sent by the Complainants through their Ld. Advocate. But the OPs failed and neglected to execute the deed of conveyance. So, the present complaint has been filed by the Complainants directing the OPs to execute and register the deed of conveyance in favour of the Complainant, to pay an amount of Rs.2,00,000/- towards harassment and mental agony and litigation cost of Rs.1,00,000/-.
With the complaint petition, copy of agreement for sale, legal notice, money receipts and property tax receipt showing the name of Complainant Rupa Pyne, are filed.
OP No.1 has filed written version denying the allegations made in the complaint petition stating inter alia that due to the non-cooperation by the owners being OP No.2 to 20, deed of conveyance in favour of the intending purchaser could not be executed. Same has also been intimated to all the purchasers including the Complainant. There has not been latches on the part of the developer and so the OP No.1 has prayed for dismissal of the case against him.
OP No.2 to 20 did not take any step in spite of serving notices and so the case came up for ex-parte hearing against OP No.2 to 20.
Following points require to be determined -
- Whether there has been any deficiency in rendering service?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both the points are taken up together for discussion for the sake of convenience and in order to avoid repetition.
On perusal of the copy of agreement annexed with the written version, it appears that the said memorandum of agreement was executed on 17.1.2002 between Hemanta Sarkar, OP No.1 in this case, as Developer and the owners namely OP No.2 to 8 and OP No.11 to 20 and the name of one Namita Das who appears to be predecessor in interest of OP No.9 & 10. The agreement dt.30.11.2008 between the Complainant and OP No.1 indicates that the possession of the subject flat was already handed over to the Complainants either before or on the date of the said agreement. In the agreement, the developer has also acknowledged about accepting the entire consideration money on different dates. In this context, it may be pertinent to point out that the copies of the money receipts filed in this case are dated 26.11.2008, 30.11.2008, few receipts are of January and February,2009.
On perusal of these money receipts dt.26.11.2008, it appears that the developer had received Rs.3,00,000/- as advance sum out of total consideration of Rs.7,00,000/- and it was directed that the remaining Rs.4,00,000/- shall be paid within 6.12.2008 and on the date of delivery of possession. So, it is apparent that first payment was made on 26.11.2008. If that be so, then the question which requires to be considered is whether the Complainant at all had hired/ availed any ‘Housing construction service’.
“House construction” is for benefit of the person for whom it is constructed. when a purchaser/ a person gets construction of the house through others, he/ she avails their services for consideration, the service falls under Section 2(1)(O) of the Act. In this case, there is absolutely no document that the Complainants in their capacity as purchaser had hired the ‘housing construction service’. On the contrary, the agreement and the money receipts clearly reveal that the Complainants had purchased an already constructed flat. Because, the first payment was made on 26.11.2008 and by or on 30.11.2008, possession of the flat was already handed over to Complainants, which is categorically stated in the agreement. There cannot be any denial that no construction of house could be done within four days. So, this suggests that it was a readymade flat.
So, if no housing construction service was hired then the case can not fall under the provision of Consumer Protection Act and the Complainants cannot be a consumer.
It may also be pertinent to point out that it is agitated by OP No1 in his written version that one of the owners namely Namita Das who had executed the memorandum of agreement dt.17.1.2002 along with other co-owners in favour of OP No.1 for the development of the property, is admittedly dead leaving behind OP No.9 and 10. But, OP No.1 remained silent about the date of her death. Even during questionnaire filed by him against the evidence of the Complainant, he did not mention the date of death of the said Namita Das and has only stated whether the Complainant is aware that one of the land owners viz. Namita Das had died after delivery of the possession. If according to him Namita Das died after possession was delivered then he must be aware as to when exactly Namita Das died but for the reason best known to him, he has not stated the date of death of said Namita Das . The date of death of Namita Das is necessary in this case in order to know whether on the date of execution of agreement for sale between the Complainant and the OP No.1, said Namita Das was alive because if she had died before the execution of the said agreement, then the agreement will not be effective as power of attorney or development agreement if any in favour of OP No.1 will not be operative.
So, in view of the discussion as highlighted above especially when it is an already constructed flat complaint is not maintainable and as such the case is liable to be dismissed.
These points are answered accordingly.
Hence
ordered
CC/527/2017 is dismissed ex-parte against OP No.2 to 20 and on contest against OP No.1.
