FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The complainants have filed this petition of complaint U/S 12 read with Section 11(2) (b) of the CP Act, 1986.
The fact of the case in brief is that the complainants have filed this case against the OPs-1 to 3 who are the land owners of a plot of land measuring about 3 cottah 12 chittak 0 sq. ft. (more or less) along with partly two and three storied building thereon partly occupied by tenants situated at premises no. 4, Gouri Shankar Lane, P.S. Narkeldanga, ward No. 30 within the area of KMC. The OP-4 is the developer and service provider in respect of the subject property. The OP-5 is the developer firm and OP-6 and 7 are the partners and representative of OP-5.
It is further stated by the complainants that a development agreement dated 24.06.2011 was signed and executed by and between the landowners namely Rabindranath Sikdar since deceased and the developer for the construction of a multi storied building after demolishing the existing structure thereon.
The developers after observing all sorts of formalities started the construction of the A schedule property as mentioned in petition of complaint. There were several tenants in the existing building thereon and it was agreed by the developer and landowner no tenant shall be evicted there from either by the developer and by the landowner. Accordingly they registered a declaration for no eviction of tenants before the Additional District Sub Registrar, Sealdah and recorded in book No. I Vol-III being No. 01480 for year 2013.
The present complainants of this case are also the tenants of the said building since long back. They were looking for a small residential flat and approached the developer being intending purchaser to purchase one small flat from the developers allocation measuring about 207 sq. ft. (more or less) carpet area in the ground floor at a consideration amount of Rs.4,11,400/-. With a view to avoid all future complications, the complainants entered into a tripartite agreement for sale with the developer and land owner on 22.12.2012 and another agreement for sale was signed and executed in between the complainant and the developer in the month of November 2015 on payment of a sum of Rs.2,00,000/- as part consideration out of total consideration of Rs.4,11,400/- for the subject flat and it was agreed that they are ready to pay the balance consideration amount. The agreement for sale of the subject flat is annexed as annexure A.
as per agreement for sale the developer agreed to transfer the subject flat to the complainants along with undivided proportionate share in the land in question with the common area and facilities within 24 months from the date of agreement and also agreed to make registration of the subject flat on payment of full consideration money the amount of which shall remain unchanged till delivery of the subject flat.
It is alleged that the developer failed to hand over the possession of the subject flat within the specified period. The complainants on several occasions requested the developer to handover the possession of the subject flat and register the deed of conveyance on receipt of the balance consideration money but the developer did not pay any heed to the request of the complainants when the complainants were always ready to pay the balance consideration money of the flat.
In the meantime one tenants / purchaser namely Bivas Chakraborty filed one Title Suit being No. 24/2017 before the Ld. Civil Judge, Jr. Div., First Court Sealdah with a prayer to permanent injunction for not to create any third party interest in the subject property./ the present complainants were also made party in the Suit but subsequently, they withdrawn the suit and photocopy of the order dated 22.02.2019 passed by the Ld. Civil Judge, Jr Div., First Court Sealdah is annexed herewith as annexure B.
Thereafter the complainants made a complaint against the developer before Assistant Director, Consumer Affairs Department, Government of West Bengal to settle the matter through mediation proceeding. Hence, this case is filed by the complainant against the developer before the proper forum.
The complainants repeatedly requested the developer to handover the subject flat and also make registration of the flat on receipt of the balance consideration money but the developer did not give any response rather the developer harassed the complainants neglected their request and cause mental pain and agony. Such conduct of the developer is nothing but the deficiency in service on their part and the complainants being a consumer have filed this case before this forum without having any other alternative.
The cause of action arose on and from 22.12.2012 on which date the tripartite agreement for same was signed and executed by and between the complainants, developer and land owner, hence the instant was / was filed by the complainants with a prayer to give direction to the OPs to handover the possession of the subject flat also to make registration of the deed of conveyance in favour of the complainants on receipt of the balance consideration money and also prayed for giving direction to the OPs to handover the completion certificate of the building to the complainants and to pay the enhanced cost of stamp duty. It is also prayed by the complainants to give direction to the OPs to pay compensation of a sum of Rs.2,00,000/- to the complainants for harassment, negligence and deficiency in service along with litigation cost of Rs.30,000/-.
The OPs have contested the claim application by filing separate WV.
The OPs 1 and 2 and 3 have contested the claim application by filing one WV and the OPs 4, 5 and 6 have contested the claim application by filing another WV.
From the WV of the OPs 1, 2 and 3, it is found that they contested the claim application denying all the material allegations leveled against them in the petition of complaint. It is stated by the OPs 1, 2 and the 3 that the complainants have no cause of action to file this case. They also stated that the case is not maintainable in the eye of law and the complainants are not a consumer within the ambit of CP Act. It is stated by the OPs 1, 2 and 3 that the OPs 4 has not been allowed to receive the balance consideration as alleged in fact. The OPs/developers could not handover the possession of the subject flat to the complainants due to non compliance of the agreement for sale of a flat dated 31.12.2012. So, the contesting OPs 1, 2 and 3 are not responsible for handing over the subject flat to the complainants and they were debarred from their execution part as they were not party in the agreement and they have not taken any money from the complainants in any way.
It is further case of the OPs 1, 2 and 3 that there was a Civil Suit pending before the Civil Court in respect of subject property which is admitted by the complainants themselves and due to pendency of such suit before the Ld. Civil Judge Jr. Div. Sealdah, the development work of subject flat was also hindered. The OPs 1, 2 and 3 further stated that neither the developer nor the tenants were agreed to perform to the construct work with a sanctioned plan from KMC in accordance with law and developer could not obtained the completion certificate from the KMC as the title suit No. 165 of 2016 is still pending before the Ld. Civil Judge Jr. Div. Sealdah and the OPs 1, 2, and 3 have no fault on their part on the failure of handing over the possession of the subject flat to the complainants and the developers are responsible for this.
It is further stated by the OPs 1, 2, and 3 that there was no deficiency on their part. The delayed as caused in respect of handing over the possession of subject flat to the complainants by the developers for which the OPs 1, 2 and 3 are in no way responsible and they have not resorted to any unfair trade practice rather the OPs 4, 5, 6 and 7 in as much as the erstwhile owner himself have cancelled the devolvement agreement as well as power of attorney granted to the OPs 4, 5, 6 and 7 for their unfair trade practice.
The OPs 4, 5, 6 and 7 were entitled to transfer the allocated portion to the respective tenants. So, the intentional latches, if any is on the part of the OPs 4, 5, 6 and 7. So, there is /was no cause of action for the complainants to file this case against the OPs 1, 2 and 3 . Moreover the title suit No. 165/2016 is still pending before the Civil Court mentioned above. So, this forum cannot adjudicate this case. Thus, the petition of complaint is liable to be dismissed.
The case do run ex parte against the OPs-7 vide order dated 03.02.2020 passed by this forum
The Ops 4 5 and 6 have contested the claim application denying all the material allegations leveled against them.
It is the case of the OPs 4, 5 and 6 that one of the owner Rabindrnath Sikdar has occupied the major portion of the developer’s allocation and have transferred the same to his thereof who is legal heirs and successor by way of gift deed. Without having any authority and in contravention of the terms of the agreement as well as in utter violation of injunction order passed Ld. Civil Judge Jr. Div. Sealdah in title suit No. 165/2016 which was filed by the OPs/developer represented by OPs 6 and 7 as plaintiffs therein, thereby the OPs were debarred from handing over its allocation to the intending buyers save and except one as well as to file the tenants out of total 10 as per agreement.
Moreover, the intending buyers did not pay the total agreed consideration money and the OPs 4,5, 6 and 7 were not allowed to entertain the subject premises by the landlords and tenants which caused delayed in the completion of construction work of subject building and both the landlord and tenants did not allow the developers to sell the developer’s allocations save and except one unit for which the OPs 4 , 5, 6 and 7 sustained huge financial loss.
It is alleged by the OPs 4, 5, 6 in their WV that the erstwhile landlord for his illegal gain has cancelled the development agreement as well as power of attorney given to the developers/OPs vide his termination letter dated 06.09.2016 and subsequently, he died on 22.05.2019. So, the said power of attorney ceased to the operative and his legal heirs also did not execute any fresh power of attorneys in favour of the OPs /developers for which the OPs /developers have lost their authority to execute the deed of conveyance in favour of the tenants including the complainants.
Under such circumstances, there is /was no deficiency in service on the part of the OPs 4, 5 and 6. It is also denied by the contesting OPs 4, 5 and 6 that the complainants is/was ready and willing to pay balance consideration money and it is also denied by the OPs 4, 5 and 6 that they have refused to receive balance consideration money .
The present contesting OPs 4, 5 and 6 further stated that in fact that the complainants himself have entered into possession of another flat forceibly and illegally other then the subject flat and is residing there since long by depriving the OPs/developers from legitimate dues Pertaining to the agreed consideration amount.
It is further stated by the OPs 4, 5 and 6 that by the circumstances, the OPs 4, 5 and 6 were debarred from carrying out their responsibilities by the landlords and tenants who restrained the OPs 4, 5 and 6 to access the said project site. So, there is no deficiency in service and unfair trade practice on the part of the OPs 4, 5 and 6 and complainants have no cause of action to file this case. Thus, the case is liable to be dismissed.
In view of pleadings, the points of consideration are as follows:-
- Is the case maintainable in its present form?
- Has the complainant any cause of action to file the case
- Is the complainant a consumer?
- Is there any deficiency in service on the part of the OPs?
- Is the complainant entitled to get relief as prayed for?
- To what other relief or reliefs is the complainants entitled to get?
Decision with Reasons
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On careful consideration of the materials on record, it appears that at the time of filing of this case i.e. on 08.08.2019 that this forum has got territorial as well as pecuniary jurisdiction to try this case.
From the materials on record, it appears that the cause of action arosed to file this case initially on 22.12.2012 when the tripartite agreement for sale was signed and executed between the parties to this case and also on Nov, 2015 when the agreement for sale was executed by and between the parties and thereafter it is continuing till filing of this case. So, from the fact and circumstances of this case it is revealed that there was sufficient cause of action to the complainants for filing this case.
From the materials as well as evidence on record, it is revealed that admittedly, the complainants were the tenants in respect of the A Schedule property as mentioned in the schedule of the petition of complaint. The complainants were interested to purchase one small flat from the developer’s allocation being flat No. 1C measuring about 207 sq. ft. more or less carpet area in the ground floor at a consideration of Rs. 4,11,400/- and with an intention to avoid all future complications and they entered into a tripartite agreement for sale with the OPs on 22.12.2012 and also entered into an agreement for sale. It was executed and signed in the month of Nov, 2015 on payment of a sum of Rs 2,00,000/- to the part consideration money of the subject flat (Annexure-A) from which it is crystal clear that within the ambit of CP Act, 1986, the complainants are the consumers and the OPs are the service providers.
Hence in view of discussion made above, it is revealed that the complainants have filed this case well within the period of limitation and the case is well maintainable in the eye of law.
Now, let us discuss whether there is any sort of deficiency on the part of the OPs or not? It is alleged by the complainants that they were tenants of the subject premises owned by the OPs 1 2 and 3 as described in the schedule petition of complaint. The OP-5 is the developer and the OP-6 and 7 are the partners and representative of the OP-5.
It is the case of the complainants that a Devotement Agreement dated 24.06.2011 was signed and executed by and between the land owner, Rabindra Nath Sikdar since deceased and the developer for a construction of multi-storied of building after demolishing the existing structure thereon and the land owner is also signed and executed a registered power of attorney in favour of the developer. The developer after obtaining the sanctioned building plan started the constriction work in the A schedule property.
It is also complainants case that both the landowner and developer were decided that no tenants shall be evicted either by the developers or land owner and they have executed a registered declaration to that effect. The complainants being the tenants of the A schedule property interested to purchase one small flat in the developer’s allocation of A schedule property being flat No. 1C measuring about 206 sq. ft of carpet area in the ground floor at a consideration of Rs. 4,11,400/- and a tripartite agreement dated 22.12.2012 was executed in between the parties of this case to that effect and thereafter, the complainants also entered into Agreement for Sale with the land owner and developers in the month of Nov, 2015 on payment of a sum of Rs. 2 ,00,000/- as part payment of total consideration money (Annexure-A) . In this respect, the OPs 1, 2, 3, 4, 5 and 6 have categorically stated in their WV as well as written argument and also oral argument that the original land owner Rabindra Nath Sikdar since deceased has revoked the Development Agreement as well as power of attorney as was executed in favour of the OP-5 for development work and construction of A schedule property but barring their opposition in the WV, evidence and written argument as well as oral argument , they failed to prove their case by adducing any document. So, this forum is not in a position to accept this argument or statement of the OPs 1 to 6 .
The OPs 4, 5 and 6 also stated in Written argument that the erstwhile landowner, Rabindra Nath Sikdar who died on 22.05.2019 has cancelled the devolvement agreement as well as power of attorney which has executed in favour of the OPs 5 and 6 and the legal heirs of Rabindra Nath Sikdar since deceased did not execute any fresh power of attorney in favour of the OPs 5 and 6. So, that they can continue the devolvement work and hand over the possession of the flat in question to the tenants/complainants.
They also stated that a tripartite MOU dated 05.02.2019 was executed by and between the tenants including the complainants and the present landowner i.e. OPs 1, 2 and 3 and by virtue of that MOU dated 05.02.2019, the complainants agreed to take 200 sq. ft. in the ground floor as tenants. So, the complainants are not the intending purchasers. They are mere tenants under the landlordship of OPs 1, 2 and 3 but this story has got no leg on stand upon without having any cogent document to that effect because both the OPs 1, 2 and 3 and the OPs 4, 5 and 6 have stated in their WV that they intend to handover the possession of the subject flat to the complainants but the complainants did not pay the balance consideration money and also there was a Civil Suit pending between the parties before Ld. Civil Judge, Jr. Div. First Court Sealdah.
In this respect, though the complainants stated that he paid Rs. 4,00,000/- in execution of Agreement of Sale but practically, the complainants paid Rs. 2,00,000/- as shown from money receipt filed by the complainants on 09.11.2015. However, though the OPs stated that they did not handover the possession of the subject flat in faovur of the complainants due to non payment of balance consideration money but once they have taken this plea that the complainants did not pay the balance consideration money again they have stated that neither the complainants are not consumers nor they are intending purchasers rather they are mere tenants under the landlorshiop of the OPs 1, 2 and 3. The OPs are again stated that a Title suit being No. PS 165/2016 is pending in respect of the subject property before the Ld. Civil Judge, Jr. Div. at First Court, Sealdah but they did not file any documents to that effect. So, the case of the OPs that the complainants are not the consumer and they are not intending purchasers of subject flat has no basis at all, rather from their pleadings and evidence. It is established that the complainants paid Rs. 2,00,000/- to the OPs towards the consideration money of the subject flat being consumer and is entitled to get the relief as prayed for. From the certified copy of order passed by Ld. Civil Judge, Jr. Div. First Court, Sealdah. it found that the Title Suit No. 24/2017 has been dismissed being withdrawn in the month of Feb, 2019.
Hence, in view of discussion made above, it is palpably clear that the complainants being the intending purchaser agreed to purchase a subject flat as mentioned in the schedule of the petition of complaint from the OPs as per Agreement for Sale executed in the month Nov, 2015 . But the OPs tried to depriving the complainants and they did not handover the possession of the subject flat to the complainants by executing the Deed of Conveyance in their favour on receipt of balance consideration money.
In this respect this commission is of view that though the complainants have stated that they paid a sum of Rs.4,00,000/- to the developer till execution of Agreement for Sale but from the materials on record, it appears that they could be able to produce the money receipt of Rs 2,00,000/- only though the complainants alleged that the developer received another Rs. 2,00,000/- from them without issuing any money receipt but that cannot be accepted by this forum without having any cogent evidence.
On the basis of discussion made above, it is opined by this forum that the OPs did not pay any heed to earnest request of the complainants to handover the possession of subject flat and to execute the deed of conveyance in favour of them on receipt to balance consideration money but they harassed them by several means and neglected them and caused mental pain and agony to them which amounts to deficiency in service on their part and for such conduct, the OPs would be liable to pay compensation to the complainants.
In view of discussion made above, it is held by this forum that being a consumer the complainants could be able to prove their case beyond all reasonable doubt and is entitled to get relief as prayed for.
All the points of consideration are considered and decided in favour of the complainants.
The case is properly stamped.
Hence,
Order
that the case be and the same is decreed on contest against the OPs 1 to 6 and ex parte against the OP-7 with cost of Rs. 5,000/-.
The OPs are directed to handover the possession of the subject flat and to execute the registered deed of conveyance and to handover the completion certificate of building in favour of the complainants as mentioned in the schedule of the petition of complaint on receipt of balance consideration money from the complainants within 45 days from this date of order.
The OPs are further directed to pay compensation of a sum of Rs. 30,000/- to the complainants for harassment, mental pain and agony along with litigation cost of Rs 10,000/- within 45 days from this date of order, I.d. the complainants will be at liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the forum for perusal.
