Date of Filing : 11 December, 2020.
Date of Judgement : 04 October, 2024.
Mr. Dhiraj Kumar Dey, Member.
This case arises when (i) Sri Ram Bhaju Singh, (ii) Smt. Kamala Singh and (iii) Sri Neeraj Kumar Singh, hereinafter collectively called the Complainants, filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against the (1) Sri Praveen Jain and (2) Sri Raj Kumar Singh, hereinafter collectively called as the Opposite Parties or OPs, alleging deficiency in service on the part of the OPs for non-execution and non-registration of the flat purchased by the complainants and also non-refunding the extra payment made by the complainants for allegedly the area not handed over to them by the OPs.
Facts as emerged from the complaint petition and the annexed documents attached therein, are that the OP Nos.–1 & 2 are the Developers/Owners of the premises no. 25, Sailo Mukherjee Road, P.S.–Golabari, District–Howrah who have constructed a G+4 storied building at this premises. The complainants agreed to purchase a 1250 sq. ft. flat at the eastern side in the 3rd floor of this building and executed an Agreement for Sale with the OPs in the month of September, 2011. Before execution of this agreement /purchasers/ complainants paid ₹10,00,000 out of which ₹3,00,000/- paid through cheque and ₹7,00,000/- paid in cash. Total consideration of this flat was fixed at ₹42,50,000/-, @₹3,400/- per sq. ft. Complainants stated that they have paid the total consideration and the OPs handed over two flats at the 3rd floor measuring 700 sq. ft. and 711 sq. ft. including super built up area to the complainants and for this reason they have to pay an extra amount of ₹5,50,000/- for extra area of 161 sq ft handed over to them. The complainants stated that they also had to make payment of ₹50,000/- for installation of lift in the building. It is their allegation that after making full payment they repeatedly requested the OPs to execute the Deed of Conveyance in respect of the handed over flats and get them be registered. But every time the OPs avoided their appeal and thereby they have not got their flats be registered in their favour. Ultimately, in the month of August, 2016, on their repeated demands, the OPs agreed to execute the Deed of Conveyance and then the complaints paid ₹2,61,565/- for Registration and Stamp Duty. But to their surprise the OPs did not appear at the Registration office at the scheduled time of Registration previously fixed and thereby execution and registration could not be completed. Thereafter the OPs did not pay any heeds on their requests for which they send a legal notice to the OPs through their Ld. Advocate on 29/06/2020 requesting execution and registration of the Deed. But this time also there is no fruitful outcome of the legal notice. Meanwhile the complainants had made measurement of their flats by a registered LBS and found that the total area of the two flats, including super build up area, is 1360 sq. ft. instead of 1411 sq. ft., thereby 51 sq ft less area has been handed over to them. As the OPs failed to execute the sale deed and not refunded the extra amount paid to them, complainants filed this instant complaint praying:
a) to direct the OPs to execute the sale deed in respect of the flat as stated in Schedule – A;
b) to direct the OPs to refund the extra amount of ₹1,73,400/- paid by them for 51 sq ft area not handed over to them;
c) to direct the OPs to pay ₹5,00,000/- for their deficiency in service and damages caused for delay;
d) to direct the OPs to pay ₹1,00,000/- for physical harassment and mental agony;
e) litigation cost and other reliefs as the complainants are entitled to.
Complainants filed copies of (i) the Agreement for Sale executed on 01/09/2011, (ii) two alleged money receipts dated 27/01/2013 & 17/02/2013 for payment of ₹5,00,000/- each, (iii) copy of certified copy of registered Deed of Conveyance executed on 26/11/2015 executed by the OPs and Smt. Shubhangi Rai & Anr., (iv) letter dated 26/06/2019 issued to the OPs, (v) Aadhaar copy of the complainants, (vi) one electric bill issued for the month of April, 2020, (Vii) two receipts showing payments of ₹2,57,495/- & ₹2,61,565/- for Registration Fees & Stamp Duty and some other documents as annexure to the complaint petition. Later, they filed statement of bank accounts through Firisty while filing their Evidence.
Notices were served upon the OPs, after admission, to appear and contest the case by filing their written versions. Both the OPs appeared through their Ld. Lawyers and filed their respective written versions. Then the complainants filed their Evidence on Affidavit. Both the OPs had not filed their respective questionnaires and neither the OPs filed their Evidences. However, OP – 1 filed a petition under Section 40 of the C. P. Act, 2019 praying to vacate the order which restrained him to file interrogatories which was later rejected. Ultimately argument was heard in full of the complainants who filed their Brief Notes of Argument also. Both the OPs did not participate in the argument even they did not filed any Brief Notes of Argument.
We have now come to the position to deliver the Final Order in this case. We have to decide:
(a) whether the complainants are consumers under the OPs in accordance with the C. P. Act, 2019;
(b) whether the OPs are deficient in rendering proper service to the complainants;
and (c) whether the complainants are entitled to get relief(s) as prayed for.
Let us take these points together in our discussion to avoid repetition.
DECISION WITH REASONS
Factual matrix emerged from the complaint:
It is the contention of the complainants that being desirous to purchase a residential flat they entered into an Agreement for Sale with the OPs in September, 2011 intending to purchase a 1250 sq ft flat in the 3rd floor for a total consideration of ₹42,50,000/- at the premises at 25, Sailo Kumar Mukherjee Road, P.S.–Golabari, Howrah, owned and developed by the OPs. They paid the total consideration and the OPs handed over possession of two flats measuring 700 sq ft and 711 sq ft in the 3rd floor instead of 1250 sq ft flat as was written in the sale agreement. They had to pay some extra amount due to enhanced area they had got possession. But till filing this complaint the OPs did not execute the sale deed and register the flats in their favour. Even when it was fixed for registration of the Deed of Conveyance and the complainants paid the Registration Fees and Stamp Duty, the OPs did not appear before the registration authority. Repeated and earnest requests of the complainants are thus denied by the OPs keeping the complainants in a state of physical harassment and mental agony for which they come before this Commission to meet their expectations and demanded compensation.
When we scrutinize and scan the complaint petition and documents annexed we find that the Agreement for Sale was executed between Sri Raj Kumar Singh as Vendor/First Part and (i) Smt. Kamala Singh and (ii) Sri Ram Bheju Singh on 1st September, 2011. According to this agreement the Vendor, the OP – 2 in this case, is the owner of a Bastu land of 04 Cottah 01 Chittack 05 sq ft comprised within HMC Holding No. 25, Sailo Mukherjee Road, P. S. – Golabari, District Howrah, who acquired this premises through a Deed of Sale sold by the then owners Smt. Namita Chakraborty and Tarak Nath Shaw. Throughout this agreement we have not found the existence and role of Sri Praveen Jain, the OP – 1 in this case. However the certified copy of the Deed of Conveyance executed on 26/11/2015 in respect of sale of a flat in the 3rd Floor at the premises no. 25, Sailo Mukherjee Road, P. S. – Golabari, Dist. – Howrah, tells us that this Deed has been executed between (i) Sree Praveen Jain (PAN–ADSPxxxxxM) and (ii) Sri Raj Kumar Singh (PAN–ALFPxxxxxH) as OWNER/VENDOR/FIRST PART and (1) Smt. Shubhangi Rai (PAN–AQQPxxxxxC) and (2) Sri Animesh Kumar Rai (PAN–APFPxxxxxR) as PURCHASER/SECOND PART. This Deed tells us that Sri Praveen Jain was the absolute owner of a Bastu land of 2 Cottah 2 Chittacks 30 sq ft comprised in the premises no. 25/1, Sailo Mukherjee Road, P.S.- Golabari, Howrah (Page–7), whereas Sri Raj Kumar Singh was the absolute owner of a Bastu land of 1 Cottah 14 Chittacks 15 sq ft in the premises no. 25, Sailo Mukherjee Road, P.S.-Golabari, Howrah (Page–8). Two owners then amalgamated these two premises into one property and got renamed by the premises no. 25, Sailo Mukherjee Road, P.S.- Golabari, Howrah (Page–8) and total area thus became 4 cottahs 1 Chittack. This Deed of Conveyance clearly says that the OPs have suppressed the actual fact to the intending purchaser, the complainants herein above, stating that the OP-2 is the Vendor/First part of the scheduled premises thus keeping the OP-1 hidden behind.
Another point is to be noted that the Agreement for Sale was executed between the OP-2 and Complainant Nos.–2 & 1. The Complainant No.–3 was nowhere in this agreement except signing this agreement as a witness. Moreover, in the complaint petition, the complainant No.–3 has described himself as the constituted attorney of the other two complainants but no document in support of this matter has been annexed herein.
Complainants filed this complaint under Section 35 of the C. P. Act, 2019 but took help of Section of 24A of the C. P. Act, 1984 (Paragraph No.–2). Even when the OP-1 pointed out this defect the complainants have not taken any step to cure it. It is a settled principle that when possession is given but execution and registration have not been made, there exists continuous cause of action. Moreover, as there are multiple complainants no prayer under Section 35(1)(c) has not be filed.
Rival Submissions:
In the written version, OP–1 categorically denied and disputed the statements and allegations made in the complaint petition. He said that he had been implicated in this complaint falsely and frivolously making all sorts of concocted stories by the complainants against him. He vehemently stated that he was not a party in the Agreement for Sale dated 01/09/2011, nor did he receive a single penny from the complainants. According to his statement this petition has been filed by three complainants but no leave was sought for by them under the Act and for this reason alone this instant complaint is liable to be dismissed. It is also his contention that the copy of the Deed of Conveyance annexed with the complaint clearly depicted the “Vendor-Purchaser” relation which falls within the jurisdiction of the Civil Court as the issue is related to simplicitor of sale. Furthermore, as there is no provision of Section 24A under the new Act (2019), rather it was under the old Act (1986), and the complainants referred this Section 24A whereas they have filed this complaint under the new Act, so the instant case is liable to be dismissed at any stage.
OP–2, in his written version, denied and disputed all the allegations put forward against him in the complaint petition. Though he has stated in Para – 7 in his written version that “after Purchasing the property by both the Objectors, raised/Develop a Multi-storued Building that is G+3 planned sanction by the competent Authority i.e. H M C Dept and thereafter one agreement for sale was executed in favour of the petitioners by both the Opposite Parties …”. [Emphasis supplied.] Here, the OP–1 stated that the Agreement in question was executed by both the OPs, but actually in this agreement the OP-2is stated to be the sole Vendor/First Part who has also signed it and the Complainant Nos.-1 & 2 as the Purchasers/Second Part, there was no existence of the OP – 1. In the same paragraph it is also stated that: “…. the Respondent No. 2 is still ready to execute and register the Deed of Sale in favour of the Petitioners on his part. But he has no legal right to execute and register sale deed in favour of the petitioners on the part of the Respondent No. 1 as the respondent No. 1 is personally duly bound to make registration as far as his share in value in this case.” [Emphasis supplied.] This portion of the written statement of the OP-2 clearly direct us on a mysterious nexus between the OPs which had not been cleared in the Agreement for Sale dated 01/09/2011. OP-1 stated that he had not received a single penny but the OP-2 stated that they both had received the total consideration. Moreover the OP-2 emphasised for an independent survey under this Commission on the measurement of the area of flat(s) handed over to the complainants and the burden of proof lies on the complainants. The complainants have not taken any step towards such survey.
The complainants annexed some statement of account in support of payment to the OP-1 but no specific conclusion can be drawn as whether these payments were made to the OP-1 as part payment of consideration as there are no receipts against such payments.
This Commission has no jurisdiction to go beyond the boundary earmarked by the Agreement for Sale dated 01/09/2011 though it is apparent from the documents annexed and the averments made by the OPs that this agreement has suppressed facts to some extent. Though the OP-1 tried to say that this a sale simplicitor but the sale agreement has assured some service to be rendered to the complainants like installation of electric meter, lift etc. and proper water facilities, so question of sale simplicitor does not exist.
Thus, in our view, the above discussion tell us that the complainant petition bears some defects like incorporation of unnecessary party as complainant no.-3, in the cause title emphasis on Section 24A by the complainants, defective sale agreement and handing over possession of such portion which were not written in the sale agreement, even after giving possession any supplementary/modified sale agreement was not executed. These facts refrain us to award any relief/reliefs to the complainants. We think the instant complaint is liable to be dismissed for mis-joinder of unnecessary party in the Cause Title, inappropriate usage of Section 24A, defective sale agreement in the light of the contentions of both the OPs. and the area of possessed flat(s) unmatched with that was written in the sale agreement. However the complainant will have the liberty to file a fresh complaint after curing all defects or they can seek remedy of their grievance under any appropriate Court of law.
So, in the end, it is
ORDERED
that the Complaint Case bearing No. CC/264/2020 be and the same is dismissed on contest against the Opposite Parties for mis-joinder of unnecessary party, inappropriate usage of specific Section of the old Act and inordinate narrative of the complaint.
However, the complainants will have the liberty to file the complaint afresh after curing all the defects or seek remedy under any appropriate Court of law.
Let a copy of this order be issued to both the parties free of cost.
Dictated and corrected by me
Member.
