Date of filing : 29.06.2017

Judgment : Dt.03.03.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Prasanta Kumar Banerjee alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Silpi’s Roof and Floors Pvt. Ltd., (2) Sri Asish Baran Chowdhury, (3) Mrs. Silip Chowdhury, (4) Smt. Jayasree Roy, (5) Smt. Rupashree Ghosh and (6) Sri Raja Roy Chowdhury.

            Case of the Complainant, in short, is that Smt. Sadhana Roy Chowdhury, since deceased, was the owner of the property. She entered into a development agreement dt.20.6.1990 with the OP No.1 to 3 to raise a building in the property as described in the schedule of the said agreement as per sanctioned plan dt.17.11.1989, which was obtained from Kolkata Municipal Corporation in the name of the owner namely Sadhana Roy Chowdhury. A General Power of Attorney was also executed by her in favour of the OP No.1 to 3. The Complainant approached the owner and the builder for purchasing a flat along with the proportionate right and ownership of underneath land and the common parts being flat No.3 on the 2^nd floor and one car parking space in the ground floor of the said building, described in schedule of the complaint at a total consideration price of Rs.5,00,000/-. OP No.1 to 3 after construction but some portion of the construction incomplete, gave possession to the Complainant through a possession letter dt.10.10.1994 of his flat and unfinished car parking space as per agreement. So, since 10.10.1994 Complainant is in possession of the same. It was assured by the OPs by the agreement dt.20.6.1990 and the supplementary copy of the agreement dt.24.12.1990 that they would execute and register the deed of conveyance in favour of the Complainant. But in spite of receipt of the full consideration money, deed has not been executed in favour of the Complainant. So, finding no other alternative, Complainant filed the suit for declaration and specific performance of contract before the Ld. Civil Judge, Senior Division, 5^th Court at Alipore, which was subsequently transferred before the Ld. Civil Judge, Senior Division, 8^th Court at Alipore. OPs are deliberately and intentionally trying to delay the said suit. So, notice was sent by the Complainant through his Ld. Advocate on 9.2.2017 asking the OPs to complete the transaction, But the OPs refused to receive the notice. As the OPs have failed to execute and register the deed of conveyance, present complaint has been filed by the Complainant directing the OPs to pay compensation of Rs.10,00,000/- only and Rs.1,00,000/- for loss suffered by the Complainant for delay to produce the Completion Certificate, to complete the residual works in the said flat and common areas, directing the OPs to execute and register the deed of conveyance in favour of the Complainant in respect of the flat described in the schedule and for litigation cost.

            Complainant has annexed with the complaint copy of the agreement for sale dt.20.6.1990, entered into by and between the Complainant, OP No.1 to 3 and the predecessor-in-interest of OP No.4 to 6 namely Sadhana Roy Chowdhury, Copy of agreement dt.24.12.1991 entered into between the parties, copy of the money receipts showing payment of the consideration price, copy of the letter dt.10.10.1994 sent to the Complainant by OP No.1 about the delivery of possession, letter dt.28.10.1994 sent by the Complainant to the OP No.1 acknowledging receiving of the possession of the flat and the garage space, copy of the notice dt.28.6.1998 sent by the Complainant to the OP No.1, copy of the letter dt.19.1.2000, 30.8.2000, sent from the Registry Office to the Complainant, copy of the agreement dt.20.4.1990 entered into between the developer and the owner, copy of the sale deed in the name of one Gour Chandra Paul and also copy of notice dt.9.2.2017 sent by the Complainant through his Ld. Advocate to the OPs.

            On perusal of the record, it appears that even though written version was filed by the OP No.6, but the same was challenged before the Hon’ble State Commission and the Hon’ble State Commission by its order dt.20.11.2018 prevented OP No.6 from filing the written version. However, OP No.6 was given liberty to file questionnaire to test the veracity of the statement of the Complainants and its witnesses and to address in the final hearing in respect of the complaint case. So, the case in fact has proceeded ex-parte barring filing of questionnaire by OP No.6 after the affidavit-in-chief was filed by the Complainant. OP No.6 filed the written notes of argument. Complainant has also filed brief notes of argument. Both parties also advanced their argument.

            So, the following points require determination:

1. Whether there has been any deficiency in service on the part of the OPs?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Both the points are taken up together for a comprehensive discussion.

            It is claimed by the Complainant that by an agreement dt.20.6.1990 and supplementary agreement dt.24.12.1991 he has agreed to purchase a flat and the car parking space as described in the Schedule B of the complaint at a consideration of Rs.5,00,000/-. Copy of the said two agreements has been filed. It has been submitted by the Ld. Advocate for the Complainant that the original of these agreements have been filed in the Civil suit pending before the Ld. Civil Judge, Sr. Division, 8^th Court at Alipore. Certified copy of the evidence of the plaintiff in that suit has been filed wherefrom it appears that the original agreement has been filed in the said suit and they have been exhibited in the said suit.

            On a careful perusal of the questionnaire filed by the OP No.6 and the brief notes of argument filed by him, the execution of the development agreement between the owner with the OP No.1 to 3, the developer has not been disputed and denied. It also appears that the execution of the agreement for sale dt.20.6.1990 entered into between the original owner namely Sadhana Roy Chowdhury, Complainant and the developer namely Silpi’s Roof and Floors Pvt. Ltd., has also not been disputed and denied. Supplementary agreement dt.24.12.1991 indicates that the same has been executed by and between the Complainant, OP No.1 being represented by OP No.2 and Promod Ranjan Roy Chowdhury and the OP No.6 as owners. The execution of this supplementary agreement has also not been disputed and denied specifically by OP No.6. On a careful scrutiny of the said agreement it appears that the sale agreement dt.20.6.1990 executed by the original owner Sadhana Roy Chowdhury and the developer in favour of the Complainant has been categorically stated. It is apparent from the copy of the said supplementary agreement that the OP No.1, the developer and the owner being OP No.6 and his father Promod Ranjan Roy Chowdhury agreed to sell the flat on the 2^nd floor measuring about 1200 sq.ft and one car parking space described in the schedule B of the said agreement at a consideration price of Rs.5,00,000/-. Complainant has claimed that she has paid the entire consideration price and has also filed several receipts in order to show such payment to the OP developer. Payment is further strengthened from the possession letter dt.10.10.1994 sent by the OP No.1 to the Complainant for taking possession of the said property as per agreement which has been acknowledged by the Complainant by a letter dt.28.10.1994 that he has received the said flat and the garage space. In the said possession letter there is no mention about any payment due by the Complainant. There is absolutely no material before this Forum that Complainant has not paid the consideration price. So, in the absence of any contrary material and on consideration of the two agreements as referred to above, as deed of conveyance has not been executed and registered in favour of the Complainant in respect of the flat and the car parking space, Complainant is entitled to the execution and registration of the same.

            OP No.6 the only contesting OP in this case, has mainly agitated that a civil suit is pending before the Ld. Civil Judge, Senior Division, 8^th Court, Alipore and it is filed by the Complainant over the self-same cause of action seeking  specific performance of contract. So, Complainant is not entitled to any relief in this case. It is argued that both the cases if proceeded at the same time, there is every possibility of passing conflicting decision. OP No.6 has also contended that a separate suit has also been filed by the OP No.6 for a declaration and permanent injunction and mandatory injunction against the developer which is pending before the Ld. Civil Judge, Senior Division, 5^th Court at Alipore. It is contended that the developer did not raise the construction and did not complete the construction work as per development agreement and so the said suit was filed.

            It is an admitted fact that a civil suit for specific performance of contract has been filed by the Complainant and the same is pending before the Ld. Civil Judge, Senior Division, 8^th Court at Alipore. In this context it may be mentioned here that neither of the parties took any step for stay of the proceeding of one of the cases. OPs have also neither filed any petition before the Ld. Civil Court nor before this Forum praying to stay the proceeding of either the civil suit or this complaint case. Be that as it may, the Complainant in this case by swearing an affidavit has stated that the Complainant shall be withdrawing the said civil suit consequent to the disposal of this case.  Apart from this, it has been held by the Hon’ble SCDRC, West Bengal, in the case of Samik Raha VS Arati Chatterjee and other (reported in (2016)1 WB LR (CPSC) 379 that the summary trial of the consumer complaint has precedence over other case be it civil or criminal in nature. In the said case law, the decision of Hon’ble NCDRC  in M/S Indra Chatterjee VS AMRI Hospital was referred and taken into consideration. So, on consideration of the legal proposition in the said case law and also the affidavit sworn by the Complainant, there is no impediment in disposing this case.

            So far as contention of the OP No.6 that a separate suit is pending between the developer and the OP No.6, the owner. This is now a well settled principle of law that an interse dispute between the developer and the land owner cannot take away the right of a consumer to protect his interest before a consumer Forum.

            Complainant has also prayed in this case for directing the OPs to complete the residue work of the said flat and common areas. But admittedly possession of the flat and the car parking space was handed over on 10.10.1994 to the Complainant and since then he has been in possession of the property. Complainant has not filed any document showing detail particulars of the alleged incomplete work. He also did not take any step for holding an inspection in respect of the residual or in complete work. So, in the absence of any specific material in this regard and also as the Complainant is in possession since 1994, we find no justification to pass any order directing the OP to complete the residue work as prayed by the Complainant. However, Complainant is entitled to the compensation as he will have to pay the stamp duty and registration fee as per present market value. So, an amount of Rs.70,000/- will be justified as compensation.

            Hence

                           ordered

            CC/354/2017 is allowed on contest against OP No.6 and ex-parte against other OPs. OPs are directed to execute and register the deed of conveyance in favour of the Complainant in respect of the property as per agreement dt.20.6.1990 and supplementary agreement dt.24.12.1991 within two months from the date of this order. OPs are further directed to pay compensation of Rs.70,000/- and litigation cost of Rs.12,000/- within the aforesaid period of two months, in default the sum shall carry interest @ 7% p.a. till realization.