PER:HON’BLE MR. SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The instant Complaint under Section 17 (inadvertently mentioned u/s 12) of the Consumer Protection Act, 1986 (for brevity, “the Act”) is at the behest of a couple/intending purchasers against the developer/builder (Opposite party No.1) and the land owners (Opposite party Nos. 2 to 5) on the allegation on deficiency in services on the part of them in a dispute of housing construction.

          Cut short of details, Complainant’s case is that on 25.07.2014 they entered into an agreement with the OPs to purchase of a self-contained flat measuring about 1280 Sq. ft. super built up area being flat No.C-3 in the 3^rd floor and one demarcated car parking space measuring amount 130 sq. ft. in the ground floor together with undivided proportionate share of land and common rights at premises No.16, Ramkrishna Lane, P.S.- Garfa, Kolkata-700031 within the local limits of Ward No.92 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.44,80,000/- i.e Rs.41,80,000/- for the flat and Rs.3,00,000/-  for the car parking space. In the agreement it was stipulated that the OP No.1/developer will deliver possession of the flat and car parking space within 12 months with a grace period  of 3 months from the date of signing of the agreement. The complainants have stated that they have paid the entire consideration amount of Rs.44,80,000/-.  On payment of the same, the OP No.1 delivered possession of the subject flat and car parking space on 15.10.2015.  After obtaining possession of the said flat and car parking space, the complainants’ time without number requested the OPs to execute and register the deed of conveyance in favour of them but the same turned a deaf ear.   Hence, the complaint with prayer for several reliefs, viz-(a) a direction upon OPs to execute and registered deed of conveyance in favour of them; (b) Compensation of Rs.2,00,000/- for harassment and mental agony and (c)  litigation costs etc.

          The opposite party No.1/Developer by filling written version has stated that excepting OP No.2 all other land owners being OP Nos. 3 to 5 have revoked the general Power of Attorney on 08.10.2015 for which he could not execute and register the necessary deed of conveyance in favour of the complainants.

          The OP Nos. 3 to 5 being land owners by filing a separate written version have stated that due to non-compliance of the provisions of the development agreement, non-performance of the work in terms of the said development agreement and other unavoidable circumstances they were compelled to cancel and /or revoked the general Power of Attorney dated 06.12.2012 so granted in favour of OP No.1 on 08.10.2015 through a registered deed of revocation of power of Attorney.

           Complainants and the OP Nos. 3 to 5 have tendered evidence through affidavits.  However, the OP Nos. 3 to 5 did not file any reply against the questionnaire set forth by the complainants.  Besides the same, the parties have relied upon some documentary evidence including the development agreement dated 06.12.2012, general Power of Attorney granted by the land owners in favour of developer dated 06.12.2012, the agreement for sale executed by and between the parties dated 25.07.2014 etc.

           The pleadings of the parties and the evidence on record make it quite clear that OP Nos. 2 to 5 were the owners of a piece of land measuring about 8 cottahs 2 chittacks 15 sq, ft. lying and situated at premises No.16, Ramkrishna Lane, P.S.- Gorfa, Kolkata-700031 within the local limits of Ward No.92 of Kolkata Municipal Corporation (KMC).  In order to raise construction of a G+4 storied building over the said premises the land owners had entered into a memorandum of agreement with the OP No.1/Developer on 06.12.2012.  On that date, the land owners have also executed one registered power of Attorney authorising the OP No.1 to enter into an agreement for sale in respect of developer’s allocation.  For the purpose of raising construction, OP No.1/Developer has obtained sanctioned building plan from the K.M.C on 20.11.2012. 

          By dint of power conferred upon him, OP No.1/Developer had entered into an agreement for sale with the complainants on 28.07.2014 to sell a self-contained flat measuring about 1280 Sq. ft. super built up area being flat No.C-3 in the 3^rd floor and one demarcated car parking space measuring amount 130 sq. ft. in the ground floor together with undivided proportionate share and land and common rights at premises No.16, Ramkrishna Lane, P.S.- Gorfa, Kolkata-700031 within the local limits of Ward No.92 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.44,80,000/- i.e Rs.41,80,000/- for the flat and Rs.3,00,000/-  for the car parking space. In the agreement it was stipulated that the OP No.1/developer will deliver possession of the flat and car parking space within 12 months with a grace period of 3 months from the date of signing of the agreement. Admittedly, the complainants had paid the entire consideration amount of Rs.44,80,000/-.  On payment of the same, the OP No.1 delivered possession of the subject flat and car parking space in favour of the complainants on 15.10.2015. 

          The dispute arose between the parties for non-execution of deed of conveyance.  It is well settled that after accepting the entire consideration amount, it is bounden duty on the part of developer-(a) to hand over possession; (b) to execute the sale deed and (c) to obtain Completion Certificate from the competent authority.  The fact remains that the OPs have not yet executed and registered the deed of conveyance in favour of the complainants. 

          From the averment of written versions filed by OP No.1/Developer and  OP Nos. 3 to 5/Land owners, it becomes crystal clear that the OP Nos. 3 to 5 have revoked the power of Attorney granted in favour of OP No.1 on 08.10.2015 for which OP No.1 is not in a position to execute the sale deed.  In fact, the  OP Nos. 3 to 5 have instituted one Civil Suit being T.S No.107/2016 against the developer and OP No.2 i.e out of the land owners impleading them  as Defendant  Nos. 1&2 respectively in the Court of Ld. Civil Judge (Senior Division), 5^th Court at Alipore and the same is still sub-Judice.

          The contention of the OP Nos.3 to 5 about revocation of Power of Attorney bears no importance since the developer/OP No.1 has agreed to sold out the property in favour of complainants from the developer’s allocation basing upon the power of Attorney granted in favour of him dated 06.12.2012.  The landowners have no locus standi to raise any objection in getting the flat in favour of the complainants from the allocation of the developer.  The landowners may have genuine grievances against the developer for which they have already instituted a Civil Suit but it cannot be detrimental to the interests of intending purchasers.  In a decision reported in (2008) 10 SCC 345 [Faqir Chand Gulati – Vs. – Uppal Agencies Pvt. Ltd. & Anr.] the Hon’ble Supreme Court in Paragrah-23 has observed thus –

          “......where the builder commits breach of his obligations, the owner has two options.  He has the right to enforce specific performance and/or claim damages by approaching the Civil Court or he can approach the Forum under Consumer Protection Act, for relief as consumer against the builder and as a service provider”.

         In a decision reported in 2014 (3) CPR 91 [Smt. V. Kamala & Ors. – Vs. – K. Rajiv] the Hon’ble National Commission has observed that an inter-se dispute between owner and builder cannot be permitted to be used as a ploy to wriggle out of obligations under agreement and leave the buyer in lurch. 

          Whatever dispute be there between the landowner and the developer, the same can be settled in an independent proceeding.  As per agreement, the landowner has given consent to the developer to transfer the property falling to its share.  Therefore, the rights of bonafide purchasers cannot be defeated only on the ground that the landowner was not a party to the Agreement for Sale executed between the developer and the buyer.

          Evidently, the OPs have failed to keep their promise to execute and registered the sale deed in respect of the subject flat and car parking space within 12 months or even within a grace period of three months from the date of execution of agreement for sale and therefore, they are found deficient in rendering services towards the Complainants.           

            The materials on record clearly demonstrate that the complainants being ‘Consumer’ as defined in Section 2(1)(d) of the Act hired the services of Opposite parties on consideration and despite  payment of entire consideration amount  as per terms of the agreement the OPs were found deficient in rendering services in accordance with Section 2(1)(g) read with Section 2(1)(o) of the Act.  Therefore, the complainants are entitled to an order for getting the deed executed in favour of them.  The long delay more than three years by the land owner as well as developer have caused unnecessary harassment and mental agony of the complainants for which they are entitled to compensation.  However, taking into consideration of the fact that the complainants are already in possession from 15.10.2015, we think an imposition of compensation of Rs.25,000/- each by OP No.1 and OP Nos. 3 to 5 will meet the ends of justice. Under compelling circumstances, complainants have to come up in this Commission for which they are entitled to litigation cost which we quantify at Rs.10,000/-.

          With the above discussions, the complaint is allowed on contest with the following directions:

1.      The Opposite party Nos. 1 to 5 are jointly and severally directed to execute  and registered the Deed of Conveyance in respect of the property as mentioned in second schedule of memorandum of agreement  dated 25.07.2014  in favour of  Complainants within 60 days from date, in default, the complainants may get the deed executed and registered through the machinery of this Commission.
2.      The Opposite party No. 1 and OP Nos. 3 to 5 are directed to pay Rs.25,000/- each to the complainants as compensation.
3.      The Opposite party No. 1 and OP Nos. 3 to 5 are directed to pay Rs.5,000/- each to the complainants as costs of litigation.
4.      The above payments must be paid within 60 days from date, in default, the said amount shall carry interest @8% p.a. from date till its full realisation.