Date of Filing : 17 July, 2019.
Date of Judgement : 30 December, 2022,
Mr. Dhiraj Kumar Dey, Hon’ble Member.
The instant case arises when the Complainant, Sri Gopal Chatterjee, filed a complaint U/S 12 of the Consumer Protection Act, 1986, herein after called the said Act, against the Opposite Parties, namely 1) M/s. Tara Ma Construction, a proprietorship firm represented by it’s owner Smt. Babli Guha, wife of Shib Shankar Guha, 2) Smt, Ratna Dutta, 3) Smt. Tagar Dutta and 4) Smt. Anima Dutta (herein after called the Opposite Parties or O Ps) alleging deficiency of service on their part.
The brief statement of the complaint is that the Complainant entered into an Agreement for Sale to purchase a flat measuring more or less super built up area 720 sft. in the first floor of the building at premises Nos. 3/71 & 3/71A, Azadgarh, P. S. – Jadavpur, Kolkata – 700 040, with Sri Shib Shankar Guha, since deceased, proprietor of M/s. Tara Ma Construction, the O P No. 1 here in above. Total consideration amount for purchasing the flat was Rs. 4,05,000/-. Complainant paid Rs. 1,00,000/- during signing the Agreement for Sale on 16.03.2003. After constructing the building the O P No. 1 handed over the flat to the complainant and issued a possession letter on 27/02/2007. The complainant paid the entire amount of consideration of Rs. 4,05,000/- within 15/04/2007, but the O Ps failed to execute and register the Deed of Conveyance for which the complainant filed the instant complaint praying for execution and registration of the Deed of Conveyance in respect of the said flat, either by the O Ps or by this Commission, a compensation of Rs. 5,00,000/- together with Rs. 1,00,000/- and Rs. 50,000/- as litigation cost and other reliefs as this Commission may think fit.
The Complainants submitted copies of some money receipts issued by O P No. 1 and copy of Agreement for Sale in support of his complaint and possession letter.
On serving Notice upon the O Ps, O P No. 1 appeared though the Ld. Advocate and filed written version in respect of the complaint on 16.10.2019. O P Nos. 2 to 4 also appeared jointly through their Ld. Advocate and submitted their written version on 07.11.2019. Thereafter, Complainant filed his Affidavit-in-Chief. Subsequently O P No. 1 filed questionnaire while O P Nos. 2 to 4 stated that they did not want to file any questionnaire. Reply was filed by the Complainant against questionnaire of O P No. 1. Later O P No. 1 could not file any evidence and O P Nos. 2 to 4 stated that they would not file any evidence. Ultimately arguments were heard. During argument the Complainant filed brief notes of argument.
Gone through the statement of the complaint, submitted records, written versions of the O Ps, questionnaire, reply and brief notes of argument and the only points required determination are:
- Whether the complainant is a Consumer?
- Whether any deficiency has been occurred from O Ps part? And
- Whether the complainant is entitled to get reliefs as prayed for?
Let us take these questions one by one to come to a decision.
Decision with reasons
- It is a matter of fact that the Complainant made an Agreement for Sale on 16.03.2003, which was notarised on 20.03.2003, where the complainant signed as Purchaser, Sri Shib Shankar Guha, the then proprietor of O P No. 1 signed as Developer and O P Nos. 2, 3 and 4 signed as Vendor/Owner, for purchasing the subject flat at a total consideration of Rs. 4,05,000/- and the complainant paid Rs. 1,00,000/- to the O P No. 1 during signing the Agreement as earnest money. Here O P Nos. 2, 3 and 4 are the owners of the premises where the proposed building to be constructed by the Developer i.e., the O P No. 1. So the complainant is a Consumer to the Opposite Parties as defined by Section 2 (1)(c)(ii) of the Consumer Protection Act, 1986 (Sec. 2(7)(ii) of the C P Act, 2019).
- Before concentrating our attention to the 2nd question let us go through the copy of the Agreement for Sale. Here we find that the OP Nos. 2 and 3, together with Smt. Nirupama Dutta, all are daughters of Late Akhil Chandra Dutta, are the joint owners of a land measuring more or less 1 cottah 7 chittaks with a building at 3/71, Azadgarh, P S Jadavpur, Kolkata – 700 040 since 1989. One Sri Susil Chandra Dutta was the owner of a land measuring more or less 1 cottah 3 chittaks at 3/71A, Azadgarh, P S Jadavpur, Kolkata – 700 040 since the year 1988. Later Sri Sushil Chandra Durra executed a registered Deed of Settlement in the year 1993 before the A D S R, Alipore, in favour of the O P Nos. 2 to 4 together with Smt. Norupama Dutta. Thus the two plots of land, after amalgamation in 1993, came under possession of O P Nos. 2 to 4 together with Smt. Nirupama Dutta, and the total land became 2 cottah 10 chittaks lying and situated at 3/71 and 3/71A, Azadgarh, P S Jadavpur, Kolkata – 700 040. Later they made a Development Agreement with and granted General Power of Attorney to M/s. Tara Maa Construction, wherein Sri Shib Shankar Guha was the sole proprietor, on 20.12.2002 intending to construct a four-storied building in the said amalgamated premises. The complainant then made an Agreement for Sale on 16.03.2003 intending to purchase a flat at the first floor from the developer’s allocation measuring more or less 720 sft along with common facilities for a consideration of Rs. 4,05,000/- and paid Rs. 1,00,000/- during entering into this Agreement for Sale. In Clause 4, together with Clause 7 of this Agreement, it was assured that the flat would be handed over to the purchaser/complainant within 12 months from the date of execution of this Agreement. However, the Complainant got possession of his flat on 27.02.2007 and total consideration money was paid by him on 15.04.2007. But despite his repeated requests complainant alleged that he failed to get the Deed of Conveyance being executed and registered in his favour. In the year 2014 Smt. Nirupama Dutta died leaving behind the O P Nos. 2 to 4 as Successors to her interests in the property. On 12.11.2018 Sri Shib Shankar Guha died intestate at Central Correctional Home at Alipore leaving behind his wife, Smt. Babli Guha living at her residential address at 45, Regent Colony, P S Jadavpur, Kolkata – 700 040. But before his death and before his jail custody Sri Shib Shankar Guha never attempted to execute and register the desired Deed of Conveyance for the subject flat as is revealed from the statement of the complaint, written version of Smt. Babli Guha on behalf of O P 1 and the written version of O P Nos. 2 to 4. Even after the sad demise of Sri Shib Shankar Guha his wife, Smt. Babli Guha, never tried to execute and register the Deed of Conveyance. Rather, in her written version she denied every point the complainant raised in his complaint. She even stated in her written version that after the demise of her husband the business of his company, M/s Tara Maa Construction, has been shut down. She stated that after her husband’s demise the land owners denied to recruit his legal heir as the Power of Attorney holder and so his legal heir is nowhere liable for any discrepancies arising out of the failure to comply with the agreement. She even stated that she has no Power of Attorney and has not signed in the Agreement for Sale as annexed with the complaint petition, nor she has any knowledge about the same. So she prayed that this complaint should be dismissed by the Commission and she should be exempted from the false allegations against her as stated in the complaint.
This Commission thinks that the prayer of Smt. Babli Guha to exempt her from the allegations stated in the complaint is not justified. The legal heirs of a proprietorship company cannot deny to bear with the liabilities of the company after the death of the proprietor. Here Smt. Babli Guha is the wife of Late Shib Shankar Guha, who was the proprietor of M/s. Tara Maa Construction and the company has made an Agreement for Sale with the Purchaser/Complainant to sale a flat and after full and final realisation of the total consideration the company is bound to execute and register the Deed of Conveyance in respect of the subject flat and this is a promised fact according to the Agreement for Sale. So, after the demise of the proprietor his legal heirs cannot evade the liabilities of the company. Smt. Babli Guha stated in her written version that after the demise of her husband the land owners refused to allow her the Power of Attorney. The land owners can refuse to offer Power of Attorney to the legal heirs of the company for development works to be executed in future, but they cannot deny to include legal heirs of a company to which they entrusted some works to be done by the company through the Development Agreement. The liabilities arising out of such works should be borne by both the land owners and the executing company even after the demise of the proprietor of the company. So, in the instant case, the land owners cannot, in any way, refuse to accept the legal heirs of the company to execute and register the Deed of Conveyance in favour of the purchaser/complainant as all the land owners has signed in the Agreement for Sale together with the Developer and the purchaser. This has been expressly stated in Clause 13 of the Agreement for Sale. It is also said in this Clause that the owners and/or her legal heirs are bound by this indenture to execute all acts and deeds and conveyance which may be required by the purchaser from time to time at the cost of the purchaser in respect of the said flat. So in our view she is liable to execute and register the Deed of Conveyance on behalf of the Developer together with the land owners in favour of the purchaser/complainant at purchaser’s cost.
In their written version O P Nos. 2 to 4 jointly echoed the facts stated in the complaint. They stated that, according to the Development Agreement and General Power of Attorney, it was the duty of the O P 1 to execute and register a Deed of Conveyance in favour of the purchaser/complainant after taking the balance consideration amount. They even expressed their willingness to abide by the order to be passed by this Commission. But they never came forward to direct the developer company to execute the Deed which is evident from the statement of complaint and written versions of all the O Ps for which they were bound to do so as per Clause 13 of the said Agreement for Sale dated 16.03.2003.
So, deficiency must have been caused from the part of the O. Ps. and Smt. Babli Guha cannot evade her duty to execute the Deed of Conveyance in favour of the complainant and the O. Ps. 2 to 4 should have to come forward for such execution by adopting O P – 1 as the Developer in place of her deceased husband Shin Shankar Guha.
- Considering the facts and discussions stated herein above we are of the view that there is a gross deficiency in providing promised service to the consumer/complainant occurred from the part of the Opposite Parties for which the complainant has every right to get relief for such deficiency in service.
Thus this Commission thinks that the complaint is maintainable on its merit and the Complainant has every right to get his grievance be redressed for such deficiency in service occurred from O Ps part and the O Ps are liable to compensate for the negligence in rendering services properly. The complainant is entitled to get litigation cost also since he have to reach at the door of this Commission to get his grievance be redressed.
Hence,
it is
ORDERED
That CC/354/2019 is allowed on contest.
All the Opposite Parties are directed to execute and register the Deed of Conveyance in favour of the Complainant as per the Agreement for Sale dated 16/03/2003 within 3 (three) months from the date of this order. Cost of registration of the Deed will be borne by the complainant. O. Ps. are directed to pay the Complainant a sum of Rs. 20,000/- as compensation and Rs. 8,000/- as litigation cost within the aforementioned period of 3 (three) months, of which 50% will be borne by the O. P. No, 1 and remaining 50% will be borne by the O. P. Nos. 2 to 4 jointly.
