SAJAL ROY BARMAN vs PRANTOSH BANDOPADHYAY

THIS revision petition has been filed against order dated 25th June, 2010 passed by State Consumer Disputes Redressal Commission, Kolkata (for short State Commission). Vide impugned order, State Commission modified order dated 18.11.2009, passed by District Consumer Disputes Redressal Forum, North 24, Parganas, West Bengal (for short District Forum).

COMPLAINANT/respondent no.1 case is that he entered into an agreement for sale with petitioner (OP No.1 and constituted attorney of OP No.2 owner of the premises that is respondent No.2 on 24-03-2005 on payment of advance consideration of Rs.3,10,000/- for purchase of a flat at a total consideration of Rs.5,25,000/-. Respondent No.1 on subsequent dates, further paid Rs.1,65,000/- to the petitioner/opposite party No.1, against proper receipt. As per agreement for sale, O.P. was to hand over possession of the suit property within seven months from the date of agreement. However, OP failed to hand over the possession of the flat and execute the Deed of Conveyance. It is also alleged that OP did not complete the pending works in the said flat as well as the building. Due to failure on the part of the OP-1 to comply with the terms and conditions as mentioned hereinabove, respondent No.1 was compelled to arrange hiring of temporary accommodation at a total cost of Rs.7,000/- to Rs.8,000/-. It is further alleged that even after taking housing loan from LIC Housing Finance Ltd. w.e.f. 1.5.2005, respondent No.1 had to bear financial burden of payment of EMI, though he was denied possession of the suit flat. During his visit to the suit premises respondent No.1, found the door of the flat in question under lock from inside and learnt that possession has been delivered to a third party by the OP-1. A complaint was lodged with the local Police Station. Having been denied of possession of the flat by OP-1 despite payment of substantial amount towards consideration, respondent no.1 filed the present complaint alleging deficiency in service and prayed for direction to the O.Ps. to execute the deed of conveyance, handover peaceful and vacant possession of the schedule flat, to deliver possession certificate as will as completion certificate, to provide electric meter, to complete construction of unfinished works in the flat, to pay taxes and duties till the date of delivery of possession, compensation, rental and cost.

Petitioner/OP-1 in its written statement denied having received the consideration money as stated in the complaint. However, petitioner admits that there was a verbal understanding with respondent no.1 that cost of materials to be used of respondent no.1s choice would be adjusted against the cost of those items as to be fixed by the petitioner from the total consideration. However, respondent no.1 never produced the bills towards the cost of purchase of the sanitary items. It is further alleged that in spite of the flat being in readiness for delivery of possession, the same could not be handed over due to fault of respondent no.1. Respondent No.1 failed to contact the petitioner for causing delivery of possession. Petitioner agreed to deduct the actual expenses borne by the respondent for extra works against outstanding consideration money but respondent no.1 took no steps and situation further aggravated due to cancellation of power of attorney by respondent no.2/opposite party no.2. It is the responsibility of respondent no.1 to take steps regarding individual electric meter of the flat. Petitioner is still ready to handover possession of the flat, subject to the payment of balance amount of consideration.

ON the other hand, respondent no.2/OP-2 (being the land owner) in her written statement has stated that there was no agreement for sale between him and respondent no.1 and as such, she has no liability qua respondent no.1. It is further stated that she having possessed the suit property entered into the development agreement with petitioner on 1.3.2002 for construction of multistoried building in the suit property. She also executed the general power of attorney on the same date. It is alleged that petitioner deliberately failed to deliver possession of her allocation in violation of the terms and conditions of the developer agreement. However, petitioner gave possession of the flat to different purchasers but not to her. Accordingly, she was ultimately compelled to revoke the power of attorney on 12.2.2007 in favour of the petitioner. As petitioner has the sole right as per clause 21 of the agreement dated 1.3.2002, to transfer, lease, mortgage and even make registry of his allocated portion, respondent no.2, thus is not liable to take any steps to that effect. It is further stated that unless petitioner delivers vacant possession in full of the owners allocation, she is not in a position to register the deed of conveyance in favour of any flat owner. District Forum vide order dated 18.11.2009, allowed the complaint and passed the following order :- "The opposite parties are directed to execute the deed of conveyance in favour of the complainant respecting flat No.-1B on the 1st floor of the suit premises in favour of the complainant on receipt of balance consideration of Rs.70,270/- and deliver vacant possession within a period of 45 days from the date of order. There shall be no order of compensation and cost."

AGGRIEVED by the decision of District Forum, respondent No.1 challenged the same. State Commission, vide impugned order modified the order of District Forum and directed the opposite parties to execute and register the deed of conveyance in favour of the complainant in respect of flat No.1B on the first floor of the concerned premises and to deliver vacant possession of the said flat to the complainant, within a period of 45 days from the date of this order. OP-1 was also directed to pay compensation of Rs.1,29,730/- to the complainant and also pay Rs.10,000/- as litigation cost to the complainant. OP-1 was also directed to deliver completion certificate to the complainant within a period of three months from the date of this order and in default thereof the OP-1 shall be liable to pay a further compensation of Rs.1 lakh to the complainant. In default of compliance by the Ops, the complainant is to be entitled to get his reliefs through the Forum and also to recover the amounts of compensation and cost along with interest @ 10% p.a. for the period of default. It is contended by learned counsel for the petitioner that complainant himself requested to use some material as per his own choice. Petitioner agreed on condition that price for these items shall be borne by the complainant. In spite of repeated request, complainant never produced any bill to this effect. Further, the flat is ready for handover of the possession but the same could not be handed over to the complainant due to his own fault, as the balance amount out of the total agreed sale consideration has not been paid in due time by the complainant. There is no deficiency on the part of the petitioner. It is the complainant who is negligent. Learned counsel for petitioner has also referred to a decision of Supreme Court Bharathi Knitting Co. Vs. DHL World Wild Express Courier Division of Air Freight Ltd. (1996) Vol.4 CTJ 557 (SC).

ON the other hand, it is contended by learned counsel for respondent no.1 that the entire amount as demanded by petitioner has been paid but still petitioner is not handing over the possession of the flat in question. Hence, present revision is liable to be dismissed. In support learned counsel has relied upon decision of this Commission in Lalit Kumar Gupta & Ors. Vs. DLF Universal Ltd. (First Appeal No.88 of 1999 and 345 of 2001) decided on 6.5.2002.

IT is an admitted position that order passed by District Forum was never challenged by the petitioner and as such it has become final qua, the petitioner. District Forum has observed in its order that ; The complainant and the OP-1 and 2 entered into agreement as referred hereinabove which is deemed to be and construed as a concluded contract. The complainant purchaser almost fulfilled his obligation of contract making payment of substantial amount of consideration. We do not find any piece of evidence which go to indicate that the Ops took effective steps in fulfilling their part of contract. Sec.2 (1) (o) defined service to mean service of any description made available to potential users and includes but not limited to various other matters including housing construction. It is held that if there is an agreement for construction of a house with an agreement for execution and registration of a conveyance then, after the delivery of possession, upon full payment of consideration such execution and registration of conveyance would be a service. In such case, where the contract is almost performed in other respects and only the formalities for legally conveying title remains to be performed pursuant to the scheme formulated, as appeared in the present case, the obligation of execution and registration of conveyance would be a service within the meaning thereof as defined in Section 2 (1) (o). Non-execution of deed of conveyance amount to deficiency in service (Lucknow Development Authority) Vs. M.K. Gupta (1994) 1 SCC 243), (AIR 2005 Cal 108, 2005 (4) CHN 694 Mandira Mukherjee Vs. DCDRF and Ors.). In the instant case, the Ops failed to execute the deed of conveyance which amounts to deficiency in service. The allegations against the Ops is, therefore, proved. In the circumstances, the complaint alleging deficiency in service on the part of the Ops succeeds. The complainant should make payment of balance consideration of Rs.70,270/- to the OP-1. On receipt of the balance consideration, the Ops should execute the deed of conveyance respecting the suit property in favour of the complainant. There should be no order of compensation and cost.

Whereas, State Commission in its order observed ; I have considered the contentions of the respective parties and also the materials on record including the records of the Forum. The records and particularly the report of the ld. Advocate Commissioner show conclusively that the OP1 did not complete the construction. The first floor flat to be sold to OP-1 was kept incomplete for such a long time and it is the case of OP-1 that he completed the flat after the report of the ld. Advocate Commissioner was filed. Therefore, there is deficiency in service on the part of OP-1. The complainant has not paid the balance consideration money and apparently the reason is that the OP-1 failed to keep his own commitment. Therefore, non-payment of the balance consideration does not justify the conduct of the OP-1. Though, the OP-2, owner of the property has made certain grievances against withholding the delivery of possession of the area of OP-2 but the present proceeding was initiated by the complainant in respect of his grievance and, therefore, in this proceeding the grievance of the OP-2 cannot be redressed. There were talks of settlement but the same could not take final shape. But this order does not affect the rights of the OP-2 in any manner. In the aforesaid circumstances, I am of the opinion that the complainant is also entitled to compensation and a direction for delivery of completion certificate by the OP-1 to complainant. As the flat to which the complainant is entitled to possession and title by deed of conveyance, was not made available to the complainant by OP-1 not only within the time agreed i.e. within 23.10.2005 but, thereafter also for a long time ultimately the complainant was compelled to seek redress from the Forum below. Deprivation of the complainant of a flat purchased for consideration of Rs.5,25,000/- for such a long period for no fault of the complainant entitles him to get a proportionate compensation which in my opinion should be a sum of Rs.2 lakhs. The completion certificate also is needed vitally and its withholding also entitles the complainant to substantial compensation as the complainant will be exposed to proceedings by Municipal Authorities. From the aforesaid compensation, the amount of consideration payable by the complainant be adjusted. In above view of the findings, the impugned order is modified and the Ops are directed to execute and register the deed of conveyance in favour of the complainant respecting flat no. 1B on the first floor of the concerned premises and to deliver vacant possession of the said flat to the complainant within a period of 45 days from the date of this order. The OP-1 is also directed to pay compensation of Rs.1,29,730/- to the complainant and also pay Rs.10,000/- as litigation cost to the complainant. The OP-1 is also directed to deliver completion certificate to the complainant within a period of three months from the date of this order and in default thereof the OP-1 will be liable to pay a further compensation of Rs.1 lakh to the complainant. In default of compliance by the Ops, the complainant will be entitled to get his reliefs through the Forum and also to recover the amounts of compensation and cost along with interest @ 10% p.a. for the period of default.

IT is an admitted case of both parties that sale agreement was executed for a consideration of Rs.5.25 lakhs only. Clause 4 of this agreement deals with the payment schedule. Relevant portion of this Clause read as under ; The property agreed to be sold at or for the consideration of Rs.5,25,000/- (Rupees five lakhs twenty five thousand) only, which shall be paid as follows : i) At the time of agreement Rs.50,000/- (Rupees fifty thousand only) ii) On or before 10.3.2005 Rs.25,000/- (Rupees twenty five thousand only) iii) On or before 5.4.2005 Rs.2,00,000/- (Rupees two lacs only) iv) On or before 5.5.2005 Rs.1,00,000/- (Rupees one lacs only) v) On or before 5.6.2006 Rs.1,00,000/- (Rupees one lacs only) vi) At the time of possession Rs. 50,000/- (Rupees fifty thousand only) TOTAL Rs.5,25,000/- (Rupees five lacs twenty five thousand only).

Provided that the entire balance of the said purchase price, shall be in any event paid before delivery of possession of the said flat is claimed offered. The developer shall deliver possession of the flat within 7 months from the date hereof. Out of total consideration amount, petitioner has already received a sum of Rs.3.10 lakhs and further installments of Rs.1.55 lakhs. Thus, in all petitioner has received till date a sum of Rs.4.65 lakhs. All these payments have been admitted by the petitioner in his written statement. It would be pertinent to point out that above payments were received by the petitioner as early as in the year 2005. After paying substantial amount of total consideration, respondent no.1/complainant is still without any flat.

PETITIONER in its written statement has taken the plea that extra payment is still controversial but he has not mentioned or given any details of the so called extra payment, if due. In the grounds challenging the impugned order, petitioner himself states that State Commission has desired the completion of the flat and accordingly, the flat was made ready and completion for delivery of possession and execution of deed. When as per petitioners own case, the flat is complete and ready then what is preventing petitioner from handing over the possession of the flat in question to respondent no.1 Under these circumstances, petitioner cannot deprive respondent no.1 of his legal rights to have possession of flat in question. Admittedly, till date the possession of the flat has not yet been handed over to respondent no.1 and obviously, there is delay of more than six years in handing over the possession of the flat and execution of deed.

PETITIONER/builder, in the present case wants to have the cake and eat it too as admittedly it has received substantial amount of consideration. Thus, petitioner being the builder, is enjoying possession of the flat as well as substantial amount of consideration paid by the respondent. On the other hand, respondent after having paid substantial amount of consideration is still without any roof.

IN Lalit Kumar (Supra) this Commission has laid down ; That there has been a delay in delivery in handing over the possession of the Town House which is a deficiency in service within the definition of this word as per CPA, 1986. Supreme Court in Mudigonda Chandra Mouli Sastry vs. Bhimanepalli Bikshalu and others, (AIR 1999 (SC) 3095) observed; It was also not open to the High Court in exercise of its revisional jurisdiction to have indulged in a reassessment of evidence and thereby interfered with the finding of the facts recorded by the two Courts below.

Recently, Supreme Court in Rubi (Chandra) Dutta vs. United India Insurance Co. 2011 (3) Scale 654 observed that; Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view that what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken, by setting aside the concurrent finding of two fora.

SUCH type of unscrupulous act on the part of petitioner/builder should be dealt with heavy hands, who after grabbing the money from the purchaser, enjoy and utilize their money but does not hand over the flat, on one pretext or the other. Petitioner has made respondent run from one Fora to other Fora during last six years so that respondent cannot have any roof over his head and he (petitioner) can go on enjoying respondents money without any hindrance. Since State Commission has given detailed and reasoned order which does not call for any interference nor the same suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and the same is totally frivolous in nature, which is required to be dismissed with punitive cost of Rs. 1 Lakh (One Lakh). Accordingly, we dismiss the petition with cost of Rs. 1 lakh.

OUT of this cost, Rs.50,000/- shall be paid to respondent. Petitioner is directed to deposit the cost by way of cross cheque for a sum of Rs.50,000/- in the name of Consumer Legal Aid Account and other cheque in the sum of Rs.50,000/- in the name of respondent, within four weeks from today. In case the costs are not deposited within the prescribed period, the petitioner shall be liable to pay interest @ 9% p.a. till realization.

THE cost awarded to the respondent shall be paid to him only after the expiry of period of appeal or revision preferred, if any.

LIST for compliance on 12-08-2011.