FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU

The case of the complainant  in short  is that the complainant was interested to purchase one small unit/flat being No.201 measuring about 336 sq.ft (more or less) on the 1^st floor at premise No. 4, Gouri Shankar  Ghosal Lane, Kolkata – 700011 , P.S. Narkeldanga  from the OPs4 to 7 at a total consideration amount of Rs.5,64,000/- . OPs 1 to 3 are the land owners under whom the complainant is a tenant since long . An Agreement for Sale was signed and executed between the parties on 31.12.2012 and the complainant has paid a sum of Rs.3,50,000/- to the OPs 4 to 7. As per the said agreement the OPs 4 to 7 shall hand over the said flat within 24 months to the complainant and make registration of the said flat subject to payment of full consideration amount and the amount shall remain unchanged till the delivery . After elapsing of stipulated period of handing over the possession of the subject flat the developer failed and neglected to handover the said flat . The complainant requested the developers several times to hand over his allocation, but the OPS 4 to 7 did not pay heed . Subsequently one tenant namely Bibhas Chakraborty filed one title suit being No. 24/2017 before the Ld. 1^st Civil Judge (Jr.Div) at Sealdah and praying for permanent injunction for not to transfer , assign, create new interest over the scheduled property and the complainant also joined in the said suit. One MOU was signed and executed between the all parties including the complainant on 05.02.2019 and in the said MOU the OP6 agreed to complete the construction work under OP4 . As per terms and conditions of the said MOU the Title Suit being No. TS24/2017 was withdrawn by the complainant. The OPs 5 to 7 also filed one Title Suit being No. 165/2016 against the OPs 1 to 3 before the Ld. 1^st Civil Judge (Jr.Div.) Sealdah in which the complainant is not the party. The complainant tried to resolve the dispute through the mediation of the Assistant Director of Department of Consumer and Fair Business Practice, Govt of West Bengal, but the OPs 4 to & did not appear there. Therefore , finding no other alternative the complainant filed this case before this Ld. Commission.

OPs 1 to 3 and Ops 4 to 6 have contested the case by filing written version assailing the maintainability of the case and denying and disputing all allegations made out in the complaint petition.

The positive case of the OPs 1 to 3 is that the complainant is not entitled to get relief/reliefs as claimed by him because of suppressing of facts and thereby has not approached before this Ld. Commission with clean hands. OPs 5 to 7 i.e. developer ,  filed one suit being No.165/2016 , thereby the OPs 1 to 3 were debarred from handing over developer’s allocation to intending buyers save and except one as well asto 5 of the tenants out of total 10 , as per agreement .  The OPs 4 to 7 are not completion of the finishing works of the building and not allowed to sell the developer’s allocation save and except Owner’s Allocation and 5 Nos. of tenants out of total 10 Nos.Moreover being aggrieved by the activities of the OPs 4 to 7 the Owner cancelled the Development Agreement as well as the Power of Attorney given to the 4 to 7 vide letter of termination dated 06.09.2019 and subsequently the said landlord Rabindra Nath Sikdar died on 22.05.2019  whereby the said power of Attorney was otherwise seized to be the operative in as much as the legal heirs of the said landlord (since deceased) did not execute any fresh Power of attorney in favour of the developers. Therefore, the developers lost their authority to execute the deed of conveyances in favour of the tenants including the complainant . The OPs 4 to 7 could not hand over the possession of the said flat to the complainant due to non-compliance of the Agreement for Sale dated 31.12.2012. . The OPs 1 to 3 are not responsible to handing over the flat to the complainant in any way and in any manner. The OPs 1to 3 were debarred from executing their part as they were not the party of the agreement and they have not taken any money from the complainant , Moreover neither the OPs 4 to 7 nor the tenants agreed to perform the construction with a sanction plan from the KMC in accordance with law . The erstwhile landlord and his present legal heirs and successors are not cause of all disputes as they have taken the owner’s allocation from the developers in a incomplete portion and violation of the KMC Building Rules the developer could not be able to obtained construction completion certificate from the KMC. OPs 1 to 3 are not in favour of any illegal construction work in the suit property and violation of KMC Building Rules.In view of the above fact that the OPs 1 to 3 were debarred from carrying out their responsibility and the tenants themselves who are refusing access to the said project site to the OPs 4 to 7 in as much as the erstwhile landlord himself cancelled the development agreement as well as the power of attorney granted to the OPs 4 to 7 due to their unfair trade practice. Therefore, OPs 1 to 3  who have no fault of their own for not being able to hand over the allocated flat to the complainant, are not liable to pay any compensation or demurrages whatsoever as alleged or at all and the complainant is not entitled to get any relief . All allegation lying on the OPs 4 to 7.

OPs 4 to 6 also filed WV by denying and disputing all allegations made out in the complaint petition. Their submission is that the OP4 has not been allowed to do any work in the subject premises by the erstwhile landlord namely Rabindra Nath Sikdar (since deceased) and his legal heirs and successors as wellas the tenants of the premises who are illegally occupying the entire developer’s allocation in the subject premises and have not paid the entire agreed consideration thereby neither the land owner nor the tenants have complied with the terms of agreement dated 05/02/2019  Moreover besides occupying Owner’s allocation the said Rabindra Nath Sikdar has occupied the major portion of the developer’s allocation and have transferred possession thereof to his legal heirs and successors by way of gift illegally without any authority and in contravention of the terms of the development agreement as well as in utter violation of the injunction order as passed by the Ld. 1^st Civil Judge (Jr. Divn.) , Sealdah in Title Suit No. 165 of 2016 as was filed by the OP5 representedby the OPs 6 & 7 as plaintiffs therein, thereby the OPS were debarred from handing over it’s allocation to intending buyers save and except one as well as to 5 of the tenants out of total 10 , as per agreement . Moreover , the erstwhile landlord for his illegal gain cancelled the Development Agreement as well as the Power of Attorney given to the developer vide his letter of termination dated 06/09/2019 and subsequently the said erstwhile landlord Rabindra Nath Sikdar died on 22/05/2019 whereby the said Power of Attorney was otherwise seized to be operative in as much as the legal heirs of the said erstwhile landlord Rabindra Nath Sikdar also did not execute the Deed of conveyances in favour of the OPs 4 to 6 therefore, the OPs 4 to 6 lost their authority to execute the Deed of conveyance in favour tenants including the complainant herein and was literally in a helpless condition . It is false to the extent that the complainant is/was ready and willing to pay  the balance of the consideration as alleged or at all . It is also false to state that the developer refused to receive the balance consideration as alleged or at all. In fact the complainant himself forcefully and illegally has entered into possession of another flat other than that which was agreed to be sold to him and residing thereat since long and in order to deprive the developer in collusion with legal heirs of the erstwhile land owner  Rabindra Nath Sikdar (since deceased) with for his illegal gain with the objective to deprive these developer of the legitimate dues on account of the agreed consideration as he is already in possession of a flat in suit premises . OPs 4 to 6 were debarred from executing their part of the agreement in fulldue to supervening circumstances beyond the control of these OPs 4 to 7 . The landlords and the tenants in collusion and conspiracy with each other obstructed these OPs 4 to 6 from carrying out their bit of the agreement by forcefully and illegally not allowing these OPs 4 to 6 to enter into the subject suit property  as well as by taking forceful possession and also by filing false and vexatious suits with the sole objective to causing loss to these OPs and make illegal gain by thecomplainant as well as the OPS 1 to 3 . In fact the erstwhile landlord and as well as his present legal heirs  and successors are the root of cause of all disputes as they have forcefully and illegally occupied the lion share of the multi-storied building including the developer’s allocation for which these OPs 4 to 6 could not hand over the respective portions of all tenants . Therefore, no deficiency of service or unfair trade practice can be attributable to the Ops 4 to 6 by any stretch of imagination .  

            LD. Advocate for the OP7 appeared before the Commission but failed to file WV within the stipulated period.As such the case has been proceeded Ex parte against them.

In support of his case the complainant has tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition.  Complainant has also filed BNA. OPs 1 to 3 and OPs 4 to 6 failed to file questionnaire and Evidence supported by an affidavit to resist their consumer complaint. No BNA is filed on behalf of the OPS. We have heard argument on merit and have also perused the record.

The Ld. Advocate for the complainant argued that there is gross negligence and deficiency of service on the part of the OPs 4 to 7 as despite payment of Rs.3,50,000/- out of total sale price the construction of the suit project is not completed within the stipulated period of 24 months . The complainant is willing to pay the balance consideration and requested the OPs 4 to 7 to  handover the possession of the flat but in vain .

Before explaining the other issues involve with the complaint case, we try to decide whether the instant case falls within the purview of the Consumer Protection Act 2019 and there is any gross negligence or deficiency in service on the part of the OPs .

We note that admittedly the complainant is a tenant under OPs I to 3 i.e. landowner and booked a flat being No. 201 at the same premises at a total consideration amount of Rs.5,64,000/-. On perusal of money receipts issued by the OPs  4 to 7it is clear that the complainant has already paid Rs.3, 50,000/-  to the OPs 4 to 7 out of total sale price. Thus the complainant comes within the definition of “consumer” according to Consumer Protection act 2019. As per Agreement for Sale, possession of the flat to be handed over within 24 months from the date of execution of the agreement dated 31.12.2012 . But the Ops 4 to 7 did not offer possession of the said flat. The OPs 4 to 7 without complying the contractual obligation had chosen to file one Title Suit being No.165/2016 against the landowner before the Ld. 1^st Civil Judge (Jr.Div) Sealdah.The complainant also accompanied with a Title Suit filed against the Developerbeing No. TS 24/2017 . On 05.02.2019 one MOU was signed and executed between the land owners , all tenants including the complainant and developers and in the said MOU the developer namely Kamaruzzaman Choudhury (OP6) agreed to complete the construction under the name and style of his proprietorship concern M/S Plan Swift Architecture ( OP4 ) and agreed to complete the project within 6 months from the date of signing of the MOU . The landowners , i.e. OPs 1 to 3 , also agreed to execute  a registered Power of attorney in favour of the developer to transfer / convey the developer’s allocation. But after elapsing of stipulated period of handing over the possession of the subject flat the developer failed and neglected to handover the said flat to the complainant after receiving of part consideration amount of the complainant .Having no other alternative , the complainant filed one complaint against the developer before the Assistant Director, Department of Consumer and Fair Business Practice , Govt. of West Bengal and in the said proceedings the developer did not come forward before the mediation proceedings. Therefore, the Dept. of Consumer Affairs requested  the complainant to file a complaint case against the Ops 4 to 7 before the proper forum.

WV have been filed by the OPs 1 to 3 and the OPs 4 to 6,  but  they have failed to file questionnaires and evidence supported by an affidavit though several opportunities were given to them for filing those yet they have failed to file the same  and as such it appears before us that there is continuous negligence and deficiency of service on the part of the OPs, especially OPs 4 to 7 who received a part of the consideration amount from the complainant . First time as per Agreement for Sale dated 31.02.2012 OPs 4 to 7 assured the complainant to handover the possession within 24 months , thereafter, as per MOU dated 5.02.2019 they again made an assurance  to handover the possession of the said flat within 6 months as committed but failed to commit their assurance . It is very unfortunate that the OP 4 to 7 have failed to complete the project within stipulated period as mentioned in the Agreement for Sale and in the MOU . Ops 4 to 6 submitted that they were not allowed to enter and to finish the project in the said premise by the landowners and the tenants .It is also submitted by the OPs 4 to 6 that erstwhile landowner Rabindra Nath Sikdar cancelled the Development Agreement  as wellas the Power of Attorney given to the developer vide letter of termination dated 06.09.2016 and subsequently the said erstwhile landlord Rabindra Nath Sikdar died on 22.05.2019 .Moreover the erstwhile land owner namely Rabindra Nath Sikdar (since deceased) and his legal heirs and successors as well as the tenants illegally occupying the entiredeveloper’s allocation in the subject premises . Photocopy of theMOU signed between the parties furnished by the complainant in which the OP6put his signature goes to show that :

“The owners agreed to execute registered Power of Attorney in favour of the developer to OP6 is agreed to complete the Developer to transfer / convey the Developers Allocation to the Tenants / Buyers , after the Developer and the Tenants withdraw the title suit filed before  Hon’ble Court at Sealdah.”

The complainant submitted that as per the terms and conditions of the MOU the Title Suit being No. TS 24/2017 dated 20.02.2019 which was pending before the Ld. 1^st Civil Judhe (Jr.Divn) at Sealdah against the Developer had been withdrawn. Photocopy of the said order passed by the Hon’ble Civil Judge Jr Division dated 20.02.2019 is annexed by the complainantwith the complain petition.It also found in the abovementioned  MOU it is categorically mentioned that :

“The Owners herein agreed to vacate the extra Space under his occupation in the Ground floor after getting 200Sq.ft carpet area  at the 4^th floor.”

In the same MOU it Was agreed between the parties that :

“The developer will complete the construction of the entire tenant’s space within 6 monthfrom the date of signing of the present Memorandum of Understanding , which developer has confirm and assured to provide the same within 6 month.”

Ld. Advocate for the OPs 4 to 6 submitted in the WV that :

“In fact the erstwhile landlord as well as his present legal heirs and successors are the root cause of all disputes as they have forcefully occupied the lion share of the multi-storied building including the developer’s allocation for which opp. Parties could not hand over the respective portions of all tenants.” 

Thus OPs 4 to 6 shifted entire liabilities and responsibilities on the shoulder of the OPs 1 to 3. OPs 1 to 3 also made OPs 4 to 7 liable and responsible regarding the present dispute. But not a single piece of paper is found as evidence in support of their submission .

In view of the above circumstances it appears that the complainant is unfortunately suffering between the dispute of OPs 1 to 3 and the OPs 4 to 7 . It is not our expectation that the complainant by any means suffer from loss of money and time for the breach of the Agreement on the part of the OPs. Therefore we are of the opinion that the gross negligence and deficiency in service on the part of the OPs 4 to 7 and in part on the part of the OPs 1 to 3 is proved and the complainant is entitled to get relief .

The Hon’ble Supreme Court in Fortune Infrastructure Vs. Trevor D’ Limba , I (2018) )SLT556-II (2018) CPJ1 (SC) = (2018) 5 SCC 442 , Pioneer Urban Land & Infrastructure Ltd Vs. Govind Raghavan III (2019) SLT 435 = II 92019) CPJ 34 (SC) =(2019)5 SCC 725 , Kolkata West International City Pvt. Ltd Vs. Devasis Rudra , III (2019) SLT 631 =II (2019) CPJ29 (SC)2019 (6)  SCALE 462 and Wg. Cdr . Arifur Rahman Khan Vs. DLF Southern Homes Pvt Ltd VI (2020) SLT 50=IV (2020) CPJ 10 (SC) =2020 16 SCC512 held the buyer cannot be made to wait for unlimited period for possession. An agreement for Sale signed and executed between the parties and the complainant made part payments out of total consideration to the OPs 4 to 7 and expressed his willingness to pay the remaining balance amount to the OPs 4 to 7 repeatedly and OPs 4 to 7 agreed twice to complete the flat within stipulated period but miserably failed fulfil their commitment.

Based on the discussion above and the law laid down by the Hon’ble Supreme Court we disposed of the consumer case in the following terms:-

1. OPs 4 to 7 are jointly and severally directed to handover the possession of the said flat to the complainant. The complainant is also directed to pay the balance consideration amount to the OPs 4 to 7 at the time of execution and registration of the Deed of conveyance.
2. OPs 4 to 7 are further jointly and severally directed to handover completion certificate of the building to the complainant.
3. OPs 4 to 7 are jointly severally directed to pay an amount of Rs.1,00,000/- to the complainant as compensation and an amount of Rs.25,000/- as litigation cost.
4. OPs 1 to 7 are directed to make an arrangement to execute and registration of Deed of conveyance in favour of the complainant.
5. Abovementioned orders  shall be complied within 06 weeks from the date of this order failing which the aforesaid  amount shall carry interst @ 8% p.a. from the date of the order till its realization .
6. Liberty be given to the complainant toput the case into execution if the order is not complied by the OPs.

Consumer case is thus allowed in part on contest against the OPs 1 to 3 and allowed on contest against the OPs 4 to 6 and allowed ex parte against the OP7 and disposed of as per above observation.

Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this commission forthwith for perusal of the parties.