Date of judgment : 23.06.2017
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, by Samir Chakraborty, alleging deficiency in service on the part of the Opposite Party Jayanta Nandi.
Case of the Complainant in brief is that the Complainant entered into an registered agreement for sale dt.4.7.2014 in respect of a flat to be constructed on the 2nd floor of a proposed multi-storied building at premises No.46, Baghajatin, J/61, Block-J, Ward No.102 under KMC comprising Mouza-Rajpur, Dag No.490(P), EP No.313, S.P. No.815, P.S.-Jadavpur, Dist.- 24 Parganas South at a consideration of Rs.8,72,000/- only by way of making payment in cash for Rs.2,80,000/- on 11.7.2014, further in cash for Rs.2,92,000/- on 13.7.2014 and by draft for Rs.3,00,000/- on 11.7.2014 and accordingly, the Opposite Party issued a possession letter dt.13.10.2015 in favour of the Complainant, regarding the said flat. The Complainant has stated that the Deed of Conveyance in respect of the said flat was executed on 13.10.2015 in favour of the Complainant. The Complainant specifically stated that the OP developer although issued possession letter to him and caused registration of the Deed of Conveyance in favour of him in respect of the said flat but did not handover key of the flat on the ground stating that some electrical wiring and fittings were yet to be done and, therefore, he had prayed a short spell of time for 15 days and an extra amount of Rs.1,28,000/- to install the same. The Complainant has further stated that in good faith he had paid the extra amount of Rs.1,28,000/- to Mr. Jayanta Nandi (OP herein) on 13.10.2015. It is specific allegation of the Complainant that in spite of receiving the said amount and even after lapse of the said spell of time the OP did not hand over physical possession by way of handing over key of the said flat although the Complainant on several occasions requested him to do so. The Complainant has stated that subsequently he lodged a complaint with Jadavpur P.s. on 12.01.2016 in respect of which an attempt for amicable settlement was initiated by the P.S. but, afterwards that too did not yield any fruitful result. The Complainant has stated that the said flat was being inhabited by third party and on query they claimed to be the rightful owners but failed to show any document to such claim and learning such fact the Complainant rushed to make a search by Ld. Advocate Subhodeep Mitra at the registry office regarding the said property and the report handed over by the said Ld. Advocate dt.31.3.2016 that the flat has been registered in the name of the Complainant and no new Deed of Conveyance is registered by the OP in favour of any third party. Thereafter, as the Complainant stated, that he tried to settle the matter by intervention of Consumer Grievance Cell but that too became fruitless due to inaction on the part of the OP. Accordingly, the Complainant has prayed for direction upon the OP to deliver physical and peaceful possession of the said flat, to handover the entire set of keys of the said purchased flat and not to create any violence by any person at the said premises, to hand over the Completion Certificate including other related documents of the said purchased flat, alternatively, to refund Rs.8,72,000/- towards consideration amount plus Rs.1,28,000/- paid as extra amount plus Rs.2,00,000/- as to registration cost by the OP. Further, the Complainant prayed for payment for Rs.50,000/- towards cost of litigation and Rs.4,00,000/- towards compensation to be paid by the Opposite Party for physical harassment and mental agony.
The Complainant annexed Photostat copies of Deed of Conveyance dt.13.10.2015, money receipts dt.11.7.2014 and 13.10.2015 Demand Draft dt.11.7.2014, complaint dt.12.1.2016 lodged with Jadavpur P.S. along with other documents.
The OP contested and filed written version denying all allegations made out in the petition of complaints paragraphwise stating, inter alia, that the OP entered into agreement for development on 13.01.2014, with Sri Lakshmi Kanta Das, owner of a piece of land lying and situated in Mouza- Rajpur, J.L. No.23, Dag No.490(P) EP No.313, SP No.815 KMC Ward No.102, premises No.46, Baghajatin (J/61), Block-J, P.S.-Jadavpur, Kolkata-700 032, in respect of construction of a three storied building under certain terms and condition. It is specifically stated by the OP that during the period of construction of the said building the OP took loan of Rs.3,00,000/- only by Bank Draft from the Complainant with an undertaking to pay interest @ 4% per month against the said principal amount which the OP had paid to the Complainant and refunded Rs.1,50,000/- out of Rs.3,00,000/- principal amount. It is stated by the OP that for the purpose of security of the said loan amount of Rs.3,00,000/- the OP executed a registered agreement for sale on 14.7.2014, being Deed No.01-06362/2014 in favour of the Complainant and started to pay interest month by month to the Complainant till Sept.2015 along with principal amount of Rs.1,50,000/- out of Rs.3,00,000/-. It is also stated by the OP that the OP took loan for the first time from the Complainant for an amount of Rs.6,20,000/- and executed an agreement for sale on 02.01.2010 as security purpose only and also deposited a cheque for the Rs.2,50,000/- with the Complainant. The OP further stated that subsequently the OP refunded the entire amount to the Complainant with interest and the said sale agreement was cancelled on 7.3.2011 but the Complainant due to his bad intention did not return the said cheque for Rs.2,50,000/-, rather, deposited the same for encashment and thereafter filed a criminal case being No.34687 of 2011 against the OP before the Ld. A.C.J.M. at Alipore. It is further stated by the OP that he lodged a complaint with the Jadavpur P.S. against the Complainant and the Complainant agreed to withdraw the said criminal case and as such in the month of Sept.2015 the entire disputes were settled by and between the OP and the Complainant on the following terms –
The Complainant undertakes to withdraw the aforesaid criminal case No.34687 of 2011 against the OP;
The OP will execute the sale deed in favour of the Complainant in view of the sale agreement dt.14.7.2014 and within ten days from the execution of the said deed the Complainant will execute another sale deed in respect of the disputed flat/suit flat in favour of the nominated person of the OP namely Jayanta Nandi who was in possession and occupation and still in possession and occupation of the said flat.
The OP undertakes to refund the said amount of Rs.1,50,000/- immediately after execution of the sale deed in favour of the nominated purchaser.
It is further stated by the OP that in terms of the said settlement the OP executed the sale deed on 13.10.2015 in favour of the Complainant in respect of the said flat and, further, in terms of the said settlement the Complainant withdrew the said criminal case on the date of execution of the Deed of Conveyance but failed and neglected to execute the sale deed in favour of the OP within ten days from the date of execution of the said sale deed i.e. on 13.10.2015. It is specifically stated by the OP that the Complainant is not a bona fide purchaser since no consideration amount was passed by the Complainant and, therefore, no possession was delivered by the OP in favour of the Complainant and also specifically stated that he has transferred the said flat in favour of one Tapashi Saha who is in possession and occupation of the said flat. Accordingly, the OP has prayed for dismissal of petition of complaint with cost. In support of his contention Ld. Advocate has claimed that he has annexed –
Development agreement dated 13/01/2014,
Power of attorney dated 13/01/2014,
Sale agreement dated 2/01/10;
Money receipt signed by the defendant dated 7/3/11,
Bank Statement for Rs.3,00,000/- paid by the plaintiff,
Bank statement for Rs.1,50,000/- paid by the plaintiff,
Petition for criminal case No.34697/2011,
Plaint in title suit No.1786 of 2016
but, in reality he has filed photostat copy of title suit No.1786/2016 and nothing else.
In course of argument, Ld. Advocate on behalf of Complainant has narrated the facts as stated in the petition of complaint. In support of his contention Ld. Advocate for the Complainant relied upon the decision of the Hon’ble High Court of Andhrapradesh reported in 2007(4) ALD 760 [Goda Bharti Ramarishna Rao and anr. VS B. Sitaramchandra Raju (died) by LRS].
Another decision of Hon’ble High Court of Bombay reported in 2016(5) Bom CR 512 [Dosti Corporation & Ors VS Sea Flama Co-operative Housing Society Ltd. & Ors.].
In course of argument Ld. Advocate for OP Developer has stated that the Developer has delivered the physical possession to the Complainant but, subsequently, the Complainant delivered the same to one Tapashi Saha who is still in possession of the said flat and, therefore, the OP developer is not liable to deliver the possession once again. The Ld. Advocate for OP developer has further submitted that the instant case is not maintainable under C.P.Act and the Complainant ought to have filed a case under Section 6 of the Specific Relief Act to get his grievances redressed.
Points for determination
Is the Complainant a consumer under the Opposite Party?
Is there deficiency in providing service on the part of the Opposite Party?
Is the Complainant entitled to get relief as prayed for?
Decision
Point No.1
It is evident from the Deed of Conveyance dt.13.10.2015 that the Complainant availed housing construction service provided by the OP, Developer, in respect of a flat situated at premises No.46, Baghajatin, J/61, Block-J, Ward No.102 under KMC comprising Mouza-Rajpur, Dag No.490(P), EP No.313, S.P. No.815, P.S.-Jadavpur, Dist.- 24 Parganas South at an agreed amount of consideration and thus has become consumer under the Opposite Party as per provision of Section 2(1)(d) of the Consumer Protection Act, 1986.
Point No.2
The Complainant has claimed to have paid the entire amount of consideration of Rs.8,72,000/- to the Opposite Party in respect of the property in question. It is evident from the page No.20 of the Deed of Conveyance dated 13.10.2015 that the Opposite Party/Developer, has acknowledged the payment made by the Complainant received by him towards full consideration money of the flat in question.
The Complainant has alleged that the physical possession of the said flat has not been delivered to him so far though a possession letter dt.13.10.2015 was issued in favour of him and he received the same. In course of argument, Ld. Advocate, for the OP, Developer, has submitted that the Developer delivered the physical possession of the flat in question to the Complainant on 13.10.2015, but, the Complainant himself dispossessed him therefrom by delivering possession of the said flat to one Tapasi Saha and, therefore, the Developer is not liable to hand over possession of the said flat to the Complainant once again. However, on perusal of written version filed by the OP/ Developer, it appears from the paragraph No.16 thereof that the OP/ Developer, by swearing affidavit has stated, - “The Opposite Party has transferred the schedule flat in favour of Tapasi Saha and the said Tapasi Saha is in possession and in occupation in respect of the said flat”. Further, in paragraph 17 of the said written version, the OP/ Developer stated – “No consideration amount was passed by the Complainant and no possession was delivered by the Opposite Party in favour of the Complainant.” Therefore, it is evident that non delivery of possession by the OP Developer is admitted by swearing affidavit.
The Developer raises an issue of non performance on the part of the Complainant as per terms of an amicable settlement as stated to have been taken place between the parties whereby parties agreed to the point that the flat in question would be registered in favour of the Complainant by the OP Developer pursuant to an agreement for sale dated 14.07.2014 and thereafter from 10 days to the date of execution of Registered Deed of Conveyance the Complainant would execute and register the said flat in favour of the OP Developer. However, no document like written document of amicable settlement has been filed to support such peculiar claim and as such that claim has not been sustained.
The OP Developer to substantiate the claim for amicable settlement took between the parties has stated that the Complainant preferred a criminal case under Section 138 of the N.I.Act, before Ld. ACJM at Alipore and as per terms of the settlement withdrew the said case on the date of registration of the Deed of Conveyance i.e. on 13.10.2015. However, any person can withdraw any case initiated under Section 138 of the N.I.Act, and, therefore, the course of action on the part of the Complainant in respect of withdrawal of the said case does not necessarily mean that pursuant to any term of settlement he has done so.
Ld. Advocate for the OP, Developer, referred Section 6 of the Specific Relief Act, 1963 to substantiate that the instant case is entertainable under Section 6 of the Specific Relief Act and not under the C.P.Act. However, Section 3 of C.P.Act runs as “Act not in derogation of any other law – The provisions of this Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force” and, therefore, the instant case is very much maintainable under the C.P.Act.
In the light of the discussion as made hereinabove, it is evident that the Complainant passed the consideration amount for hiring housing construction service to be provided by the OP Developer who received the consideration amount in full and executed and registered Deed of Conveyance in favour of the Complainant but did not deliver possession of the said flat. This non-delivery of possession is a glaring example of deficiency in service on the part of OP Developer.
Point No.2 is decided accordingly.
Point No.3
The Complainant has prayed for direction upon the OP to deliver possession of the flat in question, since it has been substantiated that the OP/ Developer received the amount of consideration in full and executed a registered Deed of Conveyance in favour of the Complainant and, therefore, he is liable to hand over peaceful vacant possession to the purchaser.
The OP being the Developer of the property in question also liable to handover copy of the Completion Certificate to the purchaser.
The Complainant made an alternative prayer for refund of (Rs.8,72,000/- + Rs.1,28,000/- + Rs.2,00,000/-) Rs.12,00,000/- to him by the OP Developer. However, it has been established by way of register Deed of Conveyance that the Complainant has got the title of the said property. Therefore, we are inclined not to allow this alternative prayer.
The Complainant has prayed for direction upon the OP to pay Rs.4,00,000/- towards compensation for causing mental agony and harassment. It is true that there is no yardstick to measure the mental agony but the series of events which occurred in respect of possession of the flat reflects to some extent the possible mental state under which the Complainant had to undergo. In the instant case, it is evident that the OP Developer in spite of existence of a register Deed of Conveyance in favour of the Complainant delivered possession to a third party and has been continuously trying to deprive the Complainant of his lawful right. Considering the overall situation, we think it will be just and proper if the OP/Developer pays Rs.4,00,000/- to compensate his pain. The Complainant prays for Rs.50,000/- towards cost of litigation since non-delivery of possession on the part of the Developer compelled the Complainant to file instant case we are of opinion that the OP/ Developer is liable to bear the case which as per our consideration Rs.10,000/-
Point No.3 is decided accordingly.
In the result, the petition succeeds.
Hence,
ordered
CC/443/2016 is allowed on contest.
The OP is directed to deliver possession of the flat situated at premises No.46, Baghajatin, J/61, Block-J, Ward No.102 under Kolkata Municipal Corporation comprising Mouza-Rajpur, Dag No.490(P), EP No.313, S.P. No.815, P.S.-Jadavpur, Dist.- 24 Parganas South, within one month from the date of this order.
The OP is further directed to pay Rs.4,00,000/- as compensation and Rs.10,000/- towards litigation cost within aforesaid period. Failing which the total amount shall carry interest @ 10% p.a. for the default period.
In the event of non-compliance of this order or any part thereof the Complainant is at liberty to execute the same under the provision of law.
