Hon’ble Mrs. Dipa Sen (Maity), Presiding Member
The instant complaint U/s. 17 of Consumer Protection Act, 1986 is at the behest of an intending purchaser against the land owner/O.P Nos.1 to 3 and the Developer (O.P Nos. 4, 5, 6 & 7) on the allegation of deficiency in service on the part of them in a dispute relating to housing construction.
Brief fact of the complaint case is that the land owner Smt. Bijoli Prava Dey during her lifetime intended to develop her property by raising multi storied building thereon and for that purpose engaged developer, The O.P No.4 M/s. Paradise Enterprise, represented by its partners O.P Nos. 5 to 7 to develop the same and entered into a development agreement with the O.P No.4 on 18-11-2021. Bijoli Prava Dey also executed a power of attorney in favour of the O.P Nos.5 to 7 and the same was registered before ADSR Cossipore, Dum Dum being No.01069 for the year 2011. The present Complainant Rajarshi Dutta was in search of a suitable residential flat and has entered into an Agreement for sale with the O.P Developers on 23-06-2014 in respect of one self contained flat being No.4 B on the 4th Floor, on the North West side of the said building measuring a super built up area of 716 sq.ft. at premises No. 10 S. K. B. Saranai, P.S-Dum Dum Kol-30, which is morefully described as schedule-‘B’. The said agreement for sale was duly registered before the ADSR Cossipore, Dum Dum.
In pursuant to the said Agreement the Complainant has paid a sum of Rs.19,85,000/- (Rupees Nineteen Lakhs eighty five thousand) only as part payment on different dates out of total consideration amount of Rs.21,83,800/- (Rupees Twenty one Lakhs eighty three thousand & eight hundred) only to the Developer O.P No.4 with valid receipt. The possession of the said flat was handed over to the Complainant on 07-03-2016. The Complainant has expressed his willingness to make payment of the balance amount but in spite of his several request the O.Ps did not deliver any possession letter, completion certificate and not even execute and register the Deed of Conveyance in respect of the said flat in favour of him. The Complainant in the meantime came to know that the land owner Bijoli Prova Dey died in the meantime living behind O.P Nos.1, 2 & 3 the sons and daughter as her legal heirs. Without getting any result the Complainant is compelled to approach before this Commission for redressal of his grievances.
In spite of proper service of notice O.P Nos.2 & 3 did not file any W/V. O.P No.1 and O.P 4 to 7 have filed W/V. As such the case was proceeded for ex-parte against O.P Nos.2 & 3.
By filing W/V O.P No.1 has denied and disputed all allegations made against him and categorically stated that O.P No.1 himself is the victim of the illegal acts and conducts of O.P No.4 to 7. The property in question originally belonged to Bijoli Prova Dey, mother of O.P No.1 and O.P Nos. 2 & 3. Said Bijoli Prova Dey has entered into a development Agreement O.P No.4 M/s. Paradise Enterprise represented by O.P NOs.5, 6 & 7. It was also agreed between the parties that the said project would be completed within 24 months from the date of obtaining sanction plan and will handover peaceful possession within the extended period of 6 months in case of unavoidable circumstances. As per supplementary agreement dated 18-11-2011 it was further agreed that the owner shall get 45% of the sanctioned area as per sanction building plan along with a cash consideration of Rs.1 Lakh which is adjustable money from 45% as owners allocations as per construction price. But even after expiary of stipulated period of 24 months O.P, Developers did not handover peaceful possession of the property. Meanwhile mother of O.P Nos.1, 2 & 3 died on 19-05-2015 and after her demise the property succeeded to her three legal heirs namely i.e. O.P Nos.1, 2 & 3. The plan of G+3 building was sanctioned in the name of Bijoli Prova Dey. But the O.Ps, Developers have started illegal construction and did not keep adequate space as per statute. The O.P No.1 has categorically denied and disputed all allegations and stated that he has no deficiency in service and the cause of action is hopelessly barred by limitation. Till date the Developers O.P 4 to 7 did not handover possession and completion certification to the O.P No.1. The O.P NO.1 will not be able to execute any new power of attorney in favour of the O.P Nos. 4 to 7 unless and until, Municipality takes necessary an appropriate action as per the direction of Hon’ble High Court, Calcutta in connection with the W.P No. 24585.
By filing W/V O.P Nos. 4 to 7 has denied and disputed all allegations against them. They have categorically stated that the Complainant has not made payment as per payment schedule as set out in the Agreement for Sale dated 23-06-2014. The Complainant is the defaulter in making payment and a substantial amount of Rs.1,98,000/- (rupees One Lakh ninety eight thousands) is still due from the Complainant towards the total consideration amount. O.P Nos.4 to 7 were always ready and willing to register the Deed of Conveyance in favour of the Complainant on receipt of the balance consideration amount. In spite of that as a mark of their bonafideness and good gesture they have handed over the possession of the subject flat to the Complainant on 07-03-2016. There is no such clause that the developer has to provide completion certificate in the Agreement for Sale dated 23-06-2014. Though the O.Ps have already obtained completion certificate from the concerned Municipality. It is a matter of fact that the original landowner Bijoli Prova Dey has passed away and succeeded by her legal heirs O.P Nos. 1, 2 & 3. The present O.P No.4 to 7. The Power of Attorney which as granted by the deceased Bijoli Prvoa Dey to the developer got ceased with her death. As such, the present O.P Nos.4 to 7 presently are not legally empowered to get the Deed of Conveyance registered in favour of the Complainant. The present O.P Nos.4 to7 are willing to register with the said flat when call for subject to payment of balance consideration amount of Rs. 1,98,000/- (One Lakh Ninety eight thousand)or as directed by the Commission. The present legal heirs (O.P Nos. 1 to 3) of original landowners did not execute any power of attorney to them and without the cooperation of the present land owners the O.P Nos. 4 to 7 cannot unilaterally execute Deed of Conveyance rather they are willing to cooperate the Deed of Conveyance in respect of the said flat in favour of the Complainant. But the Complainant is not entitled to get any cost and compensation as claimed for as per the fact and circumstances of the case.
In the present case the Complainant & Opposite Party No.1 have submitted separate evidence on affidavit, questionnaire, replies and BNA in support of their respective cases. The O.P Nos. 4 to 7 have filed W/V. O.P Nos. 2 & 3 did not file any W/V.
Hence, the case is taken up for hearing ex-parte against O.P Nos.2 & 3 and in presence of Ld. Counsel of Complainant and O.P No.1.
Ld. Counsel for the Complainant argued that the possession of the subject flat has already been handed over to them on 07-03-2016. But they did not receive any possession certificate or completion certificate from the O.Ps and the O.Ps did not execute and register the Deed of Conveyance. They are willing to make payment of the balance consideration amount but in spite of sending advocate’s letter dated 14-02-2018 to the O.P No.1 to 4 the O.P did not register the subject flat in favour of him. On 21-02-2018 the O.P Nos.2 to 7 have informed the Complainant on 21-02-2018 that they are not able to execute and register the deed of conveyance in favour of the Complainant as Bijoli Prova Dey died and legal heirs of Bijoli Prova Dey did not execute any fresh power of attorney in favour of them. The Complainant has borrowed sum of Rs.18,15,000/-(Rupees Eighteen Lakh fifteen thousand) from LIC Housing Finance Ltd. and due to some negligent acts the Complainant has suffered both physical and mental harassment. The O.Ps deliberately intentionally fails to provide adequate service to the Complainant as they did not register and execute the subject flat in his name and as such they are liable to compensate to the Complainant for his mental agony harassment and execute the Deed of Conveyance in respect of schedule B flat in favour of the Complainant. The Complainant has filed one case law of NCDRC, reported in 2014(3) CPR91 (NC) between Smt.V.Kamala and others K.Rajiv, Rep. by his GPA holder, K.V.Babji and & Ors. in support of his case.
Ld. Counsel for the Opposite Party No.1 has argued that O.P No.1 himself is the victim of the illegal acts and conducts of O.P No.4 to 7. The property in question originally belonged to Bijoli Prova Dey, mother of O.P No.1 and O.P Nos. 2 & 3. Said Bijoli Prova Dey has entered into a development Agreement with O.P No.4 M/s. Paradise Enterprise represented by O.P Nos.5, 6 & 7 on 18-11-2021. It was also agreed between the parties that the said project would be completed within 24 months from the date of obtaining sanction plan and will handover peaceful possession within the extended period of 6 months in case of unavoidable circumstances. As per supplementary agreement dt.18-11-2011 it was further agreed that the owner shall get 45% of the sanctioned area as per sanction building plan along with a cash consideration of Rs.1 Lakh which is adjustable money from 45% as owners allocations as per construction price. But even after expiary stipulated period of time O.P, Developers did not handover peaceful possession of the property. Meanwhile mother of O.P Nos.1, 2 & 3 died on 19-05-2015 and after her demise the property succeeded to her three legal heirs i.e. O.P Nos.1, 2 & 3. The plan of G+3 building was sanctioned in the name of Bijoli Prova Dey. But the O.Ps, Developers have started illegal construction and did not keep adequate space as per statute. The O.P No.1 has categorically denied and disputed all allegations and stated that he has no deficiency in service and the cause of action is hopelessly barred by limitation. Till date the Developers O.P 4 to 7 did not handover possession and completion certificate to the O.P No.1. The O.P No.1 will not be able to execute any new power of attorney in favour of the O.P Nos. 4 to 7 unless and until Municipality takes any necessary and appropriate action as per the direction of Hon’ble High Court, Calcutta in connection with the W.P No. 24585. The plan was sanctioned for G+3 building and the O.P has made construction of G+4 building. Thereafter, as per the order dated 15-06-2018 of the High Court proceeding was initiated by the South Dum Dum Municipality and thereafter, Municipal Authority passed an order on 29-09-2018. In the said order the prayer of illegal construction made by the Opposite Parties was rejected. Challenging the said order dated 29-09-2018 passed by the Municipal Authority, the O.P No.1 preferred another Writ Petition being W.P No.8207 (W) of 2019 which is still pending for adjudication. However, the O.P No.1 has no objection to transfer the said subject flat if Respondent Nos.4 to 7 subject to removal of illegal and unauthorized construction of the building as per the terms and condition of the Development Agreement. In the meantime one photo copy of building Occupancy Certificate and Revised Sanctioned Plan (duplicate issued on 03-01-2023) was received by them.
Having heard both parties and on perusal of record it clearly appears to us that the Complainant is a consumer U/s. 2(1)(d) of C.P.Act, 1986, as the Complainant has hired services relating to housing construction from the O.Ps after making payment of considerable huge amount of Rs.19,85,000/- (Rupees Nineteen Lakh eighty five thousands) only out of total consideration amount of Rs.21,83,800/- (Rupees Twenty one Lakh eighty three thousands & eight hundred) with valid receipt signed by the (O.P No..4, 5 & 7) representatives of O.P/Developers M/s. Paradise Enterprise. As per the agreement dated 23-06-2014 it was decided between the parties in page no.6, Clause No.14 that the schedule flat will be handed over to the Complainant within 4 (four) months from the date of agreement. The Opposite Parties handed over the possession of the said flat on 07-03-2016 which is further beyond the stipulated period of time. Moreover, The Opposite Parties did not issued any possession letter not even registered the subject flat in favour of the Complainant’s name in spite of his several verbal requests and not even after sending legal advocate’s letter to them. It is the duty of the Developers to hand over peaceful vacant possession as well as to register the Deed of Conveyance of the subject flat in the name of the Consumer. But in this instant complaint case the O.Ps/Developers have replied in the letter dated 21-02-2018 that, “the said owner namely Smt. Bijoli Prova Dey died and legal heirs of the said Smt. Bijoli Prova Dey not executed any power of attorney in favour of us. Several times we request to the legal heirs of said Smt. Bijoli Prova Dey but they are not take any initiative in related to that and denied to given any power of attorney in favour of us. For that reason we are unable to sign as attorney but put our sign as Developers confirming party”.
It clearly demonstrated from the fact of the case that no fresh power of attorney was executed by the O.P Nos. 1, 2 & 3 landowners in favour of the developers O.P Nos.4 to 7. Actually, a dispute has cropped up in between the landowners and developers regarding deviation and illegal construction. The O.P No.1 categorically stated that they have already appeared before the Hon’ble High Court and will not able to execute any new Power of Attorney in favour of the O.P No.1 will not be able to execute any new power of attorney in favour of the O.P Nos. 4 to 7 unless and until Municipality takes any necessary and appropriate action as per the direction of Hon’ble High Court, Calcutta in connection with the W.P No. 24585. The plan was sanctioned for G+3 building and the O.P has made construction of G+4 building. But it also become clear to us that as per direction of Hon’ble High Court the South Dum Dum Municipality after hearing both parties passed an order on 29-09-2018 and there by allegation regarding illegal construction has already been rejected. The O.P No.1/land owners have preferred another Writ Petition being No.W.P No. 8207 (W) of 2009 which is still pending. It also become clear to us that one revised sanctioned plan has already been issued by the South Dum Dum Municipality.
The Hon’ble Apex Court has already decided in a case between Faquir Chand Gulati vs.Uppal Agencies Pvt Ltd reported in II (2008) CPJ 48 (SC) & Anr. that an inter-se dispute between owners and builders cannot be permitted to be issued as a ploy to wriggle out of obligations under Agreements and leave buyer in lurch. Admittedly the Complainant has paid huge amount of Rs.19,85,000/- (Rupees Nineteen Lakhs eighty five thousand) to the Developers and are willing to make payment of balance consideration amount of Rs.1,98,000/- (Rupees One Lakh ninety eight thousands) to the O.Ps. But in spite of that even after expiry of several years O.Ps did not execute the Deed of Conveyance in favour of the Complainant which we consider serious deficiency in service for which the Complainant has to suffer a lot. We are of considered view that rights of the bonafides purchaser who has purchased a flat for his residential purpose with his hard earn money cannot be defeated in any way.
As such, the Complaint case being No.262/2018 is hereby allowed (contested against O.P Nos.1, 4, 5, 6 & 7 and ex-parte against O.P Nos.2 & 3) with the following directions:-
- The Opposite Parties are jointly and severely directed to execute the Deed of Conveyance in respect of the property as mentioned in schedule-B in the Agreement dated 23-06-2014 within 60 days from the receipt of balance consideration amount of Rs.1,98,000/- (One Lakh Ninety eight thousands) from the Complainant.
- The O.P Nos.4 to 7 are further directed to pay compensation of Rs.80,000/- (Eighty thousands) for his mental agony and harassment.
- O.P Nos. 4 to 7 are further directed to pay Rs.20,000/- to the Complainant for cost of litigation.
The above payment of Rs.1,00,000/- (Rs.80,000/- + Rs.20,000/-) must be paid within 90 days from the date of communication of this order.
The Complainant has given liberty to file execution case for non-compliance of the above order.
Let a copy of the Judgment be handed over to the parties free of cost.
