1.      This Order shall decide both the Revision Petitions No.910 and 1057 of 2017 arising out from the impugned Order dated 27.04.2017 passed by the learned West Bengal State Consumer Disputes Redressal Commission, Kolkata (“State Commission”) in Appeal Nos.567 and 615 of 2013 whereby the State Commission allowed the Appeals in part against the order dated 16.04.2013 passed by the District Consumer Disputes Redressal Forum, South 24-Parganas, Alipore, Kolkata (“District Forum”) in CC No.171/2010.

2.      For Convenience, the parties in the matter are being referred to as mentioned in the Complaint before District Forum. ‘Sudipta Chowdhury is the ‘Complainant’. While M/s.Vindhya Projects Pvt. Ltd. is ‘OP-1 and ‘Alok Kumar Basu & Ors. is referred as ‘OP-2 to 6’.

3.      Brief facts of the case, as per the Complainant, are that the developer (OP-1) entered into a development agreement with the landowners (OPs-2 to 6/Owners) on 30.11.2003 to construct a multistoried building. An irrevocable Power of Attorney was executed on 23.03.2004 by the owners, allowing the developer to carry out construction and sell flats on their behalf, with a specific allocation of the constructed area (38% to owners and 62% to developer). The developer could not sell any flats until the owners' share of allocation had been demarcated and handed over. The developer entered into an Agreement for Sale with the complainant/ purchaser on 26.08.2005 for a total consideration of Rs.14,80,696/-, which was fully paid by the complainant. The developer handed over possession of the flat to the complainant’s father on 05.06.2007, based on a Power of Attorney executed by the complainant. The owners were dissatisfied because the developer handed over possession of the flat to the complainant before delivering their share of allocation as per the development agreement.  They filed a Title Suit (No. 52/2007) before the Civil Judge, seeking to restrain the developer from transferring any flats until their share had been delivered. The court ordered the developer not to transfer any flats to third parties until the owners received their allocation. The complainant later learned that unknown persons were entering the flat, leading to a proceeding under Section 144(2) of the Cr PC to prevent a breach of peace. Police locked the apartment containing the flat in question, though the record does not clarify the circumstances of police intervention. The developer filed a writ petition before the Calcutta High Court challenging the actions of the police and the Civil Judge’s order. The High Court disposed of the writ petition on 20.08.2009, allowing the developer to seek relief from the civil court. The complainant, being aggrieved, filed a complaint before the District Forum, seeking relief concerning the possession and registration of the flat.

4.      OP-1 Developer) did not file any written version or defense before the District Forum, despite being afforded opportunity to do so. While the landowners (OPs-2-6) filed written version denying the allegations made by the complainant, they accused OP-1 of acting with malafide intent by attempting to transfer the flat, which was part of their allocated share, to the complainant or a third party.  As per them, the flat in question was in their possession, not the complainant’s, and they sought dismissal of the complaint.

5.      The learned District Forum, vide order dated 16.04.2013, allowed the complaint in part as under:-

“ORDERED

  That the case being CC No.171/2010 be and the same is decreed in part exparte against the OP-1 with cost of Rs.20,000/- and dismissed on contest against contesting OPs without  cost.

  The OP-1 is directed to refund the total consideration money of Rs.14,80,696/- with interest @ 18% p.a. from the date of last payment i.e. 22.06.07 till this day, a sum of Rs.20,000/- towards cost and a sum of Rs.3,00,000/- towards compensation within one month from this day and the entire amount shall carry an interest @ 10% p.a. from the date of default.

  The OP-1 is also directed to pay penalty of Rs.5,00,000/- out of which Rs.2,00,000/- were paid to the complainant and Rs.3,00,000/- were paid in Consumer Welfare Fund, within one month.”

6.      Both the developer and the complainant appealed against the District Forum's order dated 16.04.2013 vide FA No. 567 of 2013 filed by the OP-1 and FA No. 615 of 2013 by the Complainant and the State Commission, vide order dated 27.02.2017, partly allowed both the Appeals with the following observations:

“Perused the papers on record. The merit of the issue appears to be hidden in the decision on the following points:-

1. Was there any indication in the Agreement towards earmarking of flats to be shared between the parties under Agreement?

2. Was the Sale Agreement between the parties involved in the knowledge of the O.Ps/Owners?

3. Did the Appellant/Purchaser fulfil his part as per the terms and conditions of the Agreement?

  Page 13, para 19 and page 14 para 20 of the Development Agreement have stipulated the share of allocation in the newly constructed structure between the parties involved. It reveals that the newly constructed space is to be shared between the O.Ps/ Owners and the O.P. No. 1/Developer at a ratio of 38% and 62% respectively. The said Agreement also envisages that the O.Ps/Owners' allocation has to be made first and the allocation of O.Ps/Owners will be demarcated by mutual consent of both the parties, owners and developer, in due course.

  Article VII, page 23 of the Agreement at running page 57 elaborates more clearly the provision of allocation while narrating that the developer shall deliver possession to the owner of their share of allocation before the same in respect of other occupiers is delivered.

  It appears that the O.P. No. 1/Developer was holding irrevocable Power of Attorney executed in his favour by the O.Ps/Owners and he signed the Agreement for Sale for self and on behalf of the O.Ps/Owners, being the first party of the Sale Agreement, as their authorized legal representatives on the strength of the said irrevocable Power of Attorney.

   We have not come across any averment of O.P. No.1/ Developer alleging non-compliance of the terms and conditions on the part of the Complainant/Purchaser. The full consideration as per terms of the Agreement was paid to the O.P. No. 1/Developer by the Complainant/Purchaser. The O.P. No. 1/Developer, since tied down under the terms of a valid Agreement for Sale with the Complainant/ Purchaser and since the said Sale Agreement was entered into by him on behalf of the O.Ps/Owners also on the strength of the irrevocable Power of Attorney executed in favour of the O.P. No. 1/Developer by the O.Ps/Owners, is liable to handover possession of the flat to the Complainant/ Purchaser and both the O.P. No. 1/Developer and O.Ps/Owners are liable to execute and register the Deed of Conveyance in favour of the Appellant/Purchaser. In this context we may rely upon the decision of the Hon'ble National Commission in Revision Petition No. 1374 of 2015 reported in 2015 (2) CPR 310 (NC) [Bikhubhai @ Vishalbhai Ishwarbhai Desair - vs. - Hirabhai Kikabhai Patel and Anr.] which has been cited by the Ld. Advocate for the Complainant/Purchaser in course of his argument and wherein it has been observed that the execution of Sale Deed is binding upon the builder after accepting the consideration from the buyers.

  Further, it is well settled that the parties bound under the terms of an Agreement cannot backtrack afterwards from the said terms. The decision of the Hon'ble National Commission-in Revisional Petition No. 288 of 2002, replied in IV (2014) CPJ 302 (NC) [Kaveri Telecom Ltd.-vs- Vijaya Bank & Anr.] is relevant in this regard.

  The O.Ps/Owners in view of the above, cannot deny the validity or acceptability of the Sale Deed since the same was executed on their behalf by their legally empowered Power of Attorney holder being the O.P. No. 1/Developer.

  The order dated 28.09.2007 of the Ld. 5^th Civil Judge, Alipore in Civil Suit No. 52/07 which was passed long after the Sale Agreement was executed, does not negate or nullify the claim of the Complainant/Purchaser over the subject flat.

  Since the Agreement for Sale was executed by the O.Ps/ Owners' legally empowered representative, we may consider the Sale Agreement was entered into on mutual understanding between the parties in Development Agreement, as envisaged at page 13, para 19 of the Development Agreement.

  The dispute, as it appears from the facts narrated above centered around the issue of alleged non-delivery of possession of the O.Ps/Owners share as per terms of the Development Agreement by the OP. No. 1/Developer. That a dispute, between the Owners and Developer cannot stand in the way of interest of Purchaser, has been settled by the National Commission in FA No. 70 of 2012 reported in 2014 (3) CPR 91 (NC) [Smt. Kamala & Ors. - vs. - K. Rajib Rep. by GPA Holder K. V. Babji & Ors.] which has already been referred to by the Ld. Advocate appearing on behalf of the Complainant/Purchaser in course of his argument.

  Besides, it is well settled that the existence of a Civil Case cannot stand in the way of the proceedings under the CP Act, 1986. In this context, we may rely upon the observation of the Hon'ble National Commission in Indrani Chatterjee - vs - AMRI Hospital decided on 07.11.2014 in IA.No. 1746 of 2014 relying on the decision of the Hon'ble Supreme Court in Guru Granth Saheb Sthan Meerghat Vanaras - vs. - Ved Prakash & Ors., reported in (2013) 7 SCC 622 wherein it was held, "as a matter of fact, having regard to the object and intent of the act, summary trial of consumer complaint has to be given precedence over other cases, be it civil or criminal in nature".

  In view of the facts, circumstances and observations of the Hon'ble National Commission, we are of the considered view that the claim of the Complainant/Purchaser deserve consideration.

  Hence, ordered, that both the Appeals are allowed in part with the direction upon the OP. No 1/Developer to deliver physical possession of the subject flat being No. 4D on the 4th Floor of the building concerned as mentioned in the Schedule 'C' of the said Sale Agreement as also to take action for Execution and Registration of the subject flat in favour of the Complainant/Purchaser on receiving the balance consideration, if any due, from the Respondent/ Complainant who is also directed to pay the same. The O.P. No. 1/Developer is directed to pay a compensation of Rs.50,000/- for harassment and mental agony to the Complainant/Purchaser. The O.Ps/Owners are also directed to facilitate the execution and registration of the Deed of Conveyance in respect of the subject property in favour of the Complainant/Purchaser.

  The instant order has to be carried out within 45 days from the date of this judgment and order, failing which, O.P. No.1/Developer shall be liable to pay simple interest @ 9% per annum on the amount of Rs.14,80,696/- paid by the Appellant/Complainant to the O.P. No. 1/Developer from the date of default till the order is fully carried out. The impugned judgment and order stands modified accordingly. MA/43/2014 relating to Appeal No. FA/567/2013 also stands disposed of.   The instant judgment and order shall govern both the Appeals bearing Nos. FA/567/2013 and FA/615/2013. No order as to costs.”

7.      Being aggrieved, the OPs/Developer and Owners have filed the present Revision Petitions.

8.      In his arguments, learned Counsel for the OP-1/Developer asserted that the complainant/respondent filed a complaint before the District Forum seeking possession of the flat and execution of the deed of conveyance. The District Forum passed an ex-parte order (without the developer's participation in the case), directing OP-1 to refund the consideration amount of Rs. 14,80,696/- along with interest, compensation, and costs. The Forum also imposed a penalty of Rs.5,00,000/-, of which Rs.2,00,000/- was to be paid to the complainant and Rs.3,00,000/- to the consumer welfare fund. The developer, being aggrieved by the District Forum’s order, appealed before the State Commission, which modified the order of the District Forum, directing the developer to hand over possession of the flat to the complainant and to execute the deed of conveyance. The Commission also awarded Rs. 50,000/- as compensation. The counsel for OP-1 argued that the complainant had already received possession of the flat from the developer, which was admitted by the complainant in the complaint and various documents. Thus, there should not have been any further order directing the handover of possession. The complainant had filed an application under Section 144(2) Cr.P.C. before the Executive Magistrate, wherein the complainant claimed to be in possession of the flat and sought an order restraining third parties from entering the flat. This admission, according to the developer, reinforces the fact that the complainant was already in possession.  The complainant had been enjoying the amenities and services attached to the flat, as evidenced by the fact that the complainant had been paying charges for those services. This further indicated that possession was already handed over. The developer argued that both the District Forum and the State Commission did not apply their judicial minds properly and passed the orders arbitrarily and whimsically without considering the factual admissions by the complainant. The developer sought that the impugned order of the State Commission be set aside and that the complaint filed by the respondent/complainant be dismissed in its entirety.

9.      In his arguments, learned Counsel for OPs-2 to 6/Land owners contended that OPs-2 to 6 are the original owners of premises No. 91/1, Bose Pukur Road, Kolkata. They entered into development agreement with OP-1 on 24.11.2003 for developing the property. Under this agreement, the landowners were allotted 10 flats and 817 sq. ft. of car parking space as their share. Despite the said agreement, OP-1 (the Developer) did not provide the possession letter, completion certificate, and approved plans for drainage and sewerage, which hindered the landowners' ability to fully occupy and enjoy their allocation. The landowners filed a Complaint Case (CC No. 78 of 2010) before the District Forum, seeking these documents. The District Forum vide order dated 08.06.2012, directed OP-1 to hand over possession letter, completion certificate, and other necessary documents. OP-1 appealed against this order in the State Commission vide FA. No. 387 of 2012, but the appeal was dismissed on 21.02.2013.

10.    The developer then approached the National Commission vide Revision Petition No. 2561 of 2013, which was also dismissed with costs on 23.07.2013. A subsequent Special Leave to Appeal  Nos.34169-34170/2013 was filed by the developer before the Supreme Court was dismissed as withdrawn on 01.09.2014. In the meantime, the landowners filed an Execution Application No. 56 of 2012 to enforce the order of the District Forum. As a result, on 20.08.2013, the developer complied with the order and handed over the possession letters for the 10 flats and car parking space to the landowners, including Flat No. 4D.

11.    The Complainant, who purchased the same Flat No. 4D from OP-1 and OP-1 failed to deliver its possession. As a result, the Purchaser filed a Complaint Case (CC. No. 171 of 2010) against the developer and the landowners. The District Forum passed a judgment on 16.04.2013 in favor of the Purchaser, directing action against the developer and the landowners. The landowners argued that Flat No. 4D was part of their allocation and had already been delivered to them by the developer on 09.09.2008 as per the development agreement. This was confirmed by the possession letter and supported by various legal orders, including the order of the Hon’ble Supreme Court. The landowners further contended that the Purchaser admitted in documents that the possession certificate dated 05.06.2007 was merely a paper transaction and neither actual possession was delivered nor registration was executed. Thus, the possession claim of the Purchaser lacks merit. The landowners argued that the State Commission in F.A. No. 615 of 2013 ignored these facts, refused to consider relevant documents submitted by the landowners, and denied the landowners a fair opportunity to present their case. The State Commission’s judgment dated 27.02.2017 was delivered without considering crucial documents or giving the landowners an opportunity to be heard.

12.    The landowners now seek to have the order dated 27.02.2017 passed by the State Commission in F.A. No. 615 of 2013 to be set aside.  They further request that the order passed by the District Forum on 16.04.2013 in CC. No. 171 of 2010 be affirmed, which recognized the landowners' rightful possession of Flat No. 4D and the car parking space.

13.    In his arguments, the learned Counsel for the Complainant reiterated the facts of the case and sought the entire deposited amount be refunded along with interest @ 24% from the filing of the complaint before the District Forum.

14.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by learned Counsels for all the Parties.

15.    There is a clear conflict between the developer and the owners regarding the ownership and allocation of the flat. The owners claim is that the flat is part of their allocation under the development agreement and that the developer is attempting to wrongfully transfer it to the complainant. The developer failed to submit a written version before the District Forum, as they did not contest the allegations in the formal legal proceedings before the District Forum.  The owners are asserting their rights over the flat based on the development agreement and are claiming that the developer is wrongfully trying to transfer the flat without delivering their rightful share. It is a matter of record that the landowners had also filed a Consumer Complaint No. 78 of 2010 before the District Forum, seeking these documents. The District Forum passed an order on 08.06.2012, directing the developer to hand over the possession letter, completion certificate, and other necessary documents. The developer appealed against this order in the State Commission vide FA No. 387 of 2012, but the appeal was dismissed on 21.02.2013. The developer approached the National Commission vide Revision Petition No. 2561 of 2013, which also dismissed the petition with costs on 23.07.2013. A subsequent SLP was filed by the developer before the Supreme Court, which was dismissed as withdrawn on 01.09.2014.  

16.    In the meantime, the landowners filed Execution Application No. 56 of 2012 to enforce the order of the District Forum. Thus, on 20.08.2013, the developer complied with the order and handed over the possession of 10 flats and car parking space to landowners, including Flat No. 4D. The Complainant - Purchaser entered into an agreement with OP-1 (the Developer) for purchasing the same Flat No. 4D, which is now not available due to handing over to the landowners. Now, the only way feasible to address the grievance of the Complainant is to cause refund of the entire amount deposited with respect to the flat in question by the Complainant with OP-1 i.e. Rs.14,80,696/-, along with compensation in the form of interest.

17.    As regards the rate of interest applicable and the scope for payment of compensation in such matters, Hon’ble Supreme Court in Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor, in Civil Appeal No.6044 of 2019 decided on 7.4.2022 has held that:-

“We are of the opinion that for the interest payable on the amount deposited to be restitutionary and also compensatory, interest has to be paid from the date of the deposit of the amounts.  The Commission in the Order impugned has granted interest from the date of last deposit.  We find that this does not amount to restitution. Following the decision in DLF Homes Panchkula Pvt. Ltd. Vs. DS Dhanda and in modification of the direction issued by the Commission, we direct that the interest on the refund shall be payable from the dates of deposit. Therefore, the Appeal filed by purchaser deserves to be partly allowed. The interest shall be payable from the dates of such deposits.

At the same time, we are of the opinion that the interest of 9% granted by the Commission is fair and just.”

18.    A consumer cannot be made to wait unendingly and has right to seek refund of the amount paid with reasonable compensation. At the same time, the Complainant is not entitled for additional forms of compensation for the same deficiency, after interest component is awarded. The Hon’ble Supreme Court in DLF Homes Panchkula Pvt. Ltd. Vs. D.S. Dhanda, in CA Nos. 4910-4941 of 2019 decided on 10.05.2019 has held that multiple compensations for singular deficiency is not justifiable.

19.    In view of the facts of the case, the submissions made by the learned Counsels for both the parties and the established precedents by the Hon’ble Supreme Court in the matter, the impugned Order dated 27.02.2017 in Appeal No.567 and 615 of 2013 passed by the learned State Commission, is modified with the following directions: -

ORDER

1. The OP-1/Developer shall refund Rs.14,80,696/- to the Complainant along with simple interest @ 9% per annum from the date of deposit till the date of full realization, within a period of one month from the date of this order. In the event of delay, the amount payable shall carry interest @ 12% per annum from the date of expiry of one month till the realization of the entire amount.

2. The OP-1/Developer shall also pay cost of litigation quantified as Rs.50,000/- to the Complainant, within one month from the date of this order.

20.    The Revision Petition Nos.910 and 1057 of 2017 are disposed of accordingly.

21.    All the pending Applications, if any, stand disposed of.

22.    The deposited amount, if any due, by Developer OP-1 may be refunded as per law, after due compliance of this order.