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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI
Prem Narain, Presiding Member and C. Viswanath, Member
Lalita Tripathi and Ors. —Petitioners
versus
Ravindra Nath Verma and Ors. —Respondents
Revision Petition No.2739 of 2010
(Against the Order dated 21/04/2010 in Appeal No.723/2007 of the State Commission Jharkhand)
Decided on 12.11.2020
Counsel for the Parties:
For the Petitioners:Mr. Mithilesh Kumar Singh, Advocate
For the Respondents:Mr. Chandrajit Mukherjee, Advocate
IMPORTANT POINT
Land owner is contractually bound to recognize the agreement to sell entered into by builder and to assign the proportionate land and building to purchasers of flats from the builder.
Headnote:
Consumer Protection Act, 1986—Section 21(b) : [Consumer Protection Act, 2019—Section 58]—Allotment of Flats—Delay in delivery of possession—Scope—Father of respondent nos.1, 2 and 3 entered into a development agreement with respondent no.8 on 15.11.2000 for a multi-storeyed building as his land—As per development agreements the builder was to get 5 flats and the owners were to get three flats—Respondent No.2 sold those 5 flats to five petitioners—Since petitioner did not get the possession of their flats they filed consumer complaints—District Forum allowed the complaint and directed to give possession—State commission however set aside the order of District Forum—As per development agreement, five flats belong to the those of the builder and the owners are entitled only to 3 flats—Thus, respondent nos.1, 2 and 3 have no ownership for there 5 flats and they did not have right to sell these flats—Petitioners are entitled to get the possession of those flats from respondents nos.1, 2, 3 and 8—Petitioner have already paid reasonable amount of price of the flats to the builder-respondent no.8—If respondent no.1-3 are inheriting the property, they would be bound by the agreement—Respondent no.8 directed to refund the amounts paid by petitioners with interest @ 10% p.a.—And also ordered a compensation of Rs. 2 lacs to each of complainants to be paid by respondent no.1 to 3 and respondent no.8 jointly and severely. (Paras 6 to 13)
Result: Petition allowed partly.
ORDER
This revision petition has been filed by the petitioners Smt. Lalita Tripathi & ors. against the order dated 21.4.2010 passed by the State Consumer Disputes Redressal Commission, Jharkhand, (in short ‘the State Commission’) in FA No.723 of 2007.
2. Brief facts of the case are that the father of respondents No.1,2 and 3 entered into a development agreement with respondent No.8 on 15.11.2000 for a multi-storeyed building on his land. As per the development agreement, the builder was to get 5 flats and the owners were to get three flats. It has been alleged in the complaint that respondent No.8 who was opposite party No.2 in the original complaint case sold these 5 flats to the five petitioners/complainants and received the following amounts from the petitioners as major part of the consideration.
i) Petitioner No.1 Smt. Lalita Tripathi Rs. 5,73,952/- including Rs.25,000 for car parking.
ii) Petitioner No.2 Sri Ashim Chakraborty Rs.4,50,000/-
iii) Petitioner No.3 Sri Tapan Dutta Rs.4,60,000/-
iv) Petitioner No.4 Sri Durajay Mazumdar (since deceased) Rs.4,50,000/-
v) Petitioner No.5 Sri Balbhadr Mahto Rs.2,77,000/-
3. As these petitioners did not get the possession of their flats, they filed consumer complaint before the District Forum being consumer complaint No.30 of 2005. The opposite party No.1 the landowner expired during the pendency of the complaint case and his three sons were substituted in his place who are respondent Nos.1,2 and 3 in the present revision petition. The opposite party No.2, the builder did not appear before the District Forum and was proceeded ex-parte. The respondents No.1,2 & 3 contested the complaint on the ground that they did not have any privity of contract with the components as they had not received any amount from them. They are also not party in the agreement to sell which was signed between the complainants and the builder. The District Forum in its order dated 27.9.2007, however, allowed the complaint and directed the opposite party No.1 and opposite party No.2 to jointly and severally to give the possession of the respective flats to the complainants and make payment of interest @12% per annum for the delayed possession, on their respective deposited amounts from the date of filing of the complaint till realization subject to complainants paying the remaining amount of consideration.
4. The respondent Nos.1,2 & 3 preferred an appeal bearing No.723 of 2007 before the State Commission and the State Commission accepted the appeal on the ground that the matter involved complicated questions of facts and law in respect of the possession of the flats in question and therefore, the consumer forum was not competent to decide the same. Accordingly, the order of the District Forum was set aside
5. Hence the present revision petition.
6. Heard the learned counsel for the parties and perused the record. The learned counsel for the petitioners stated that the developer sold these flats out of his share to the complainants and the complainants paid approximately the total consideration. As per the development agreement, the builder was competent to enter into agreement to sell and the complainants are entitled to get the possession of their respective flats. The objection of the respondents No.1,2 & 3 is not tenable because owner had agreed in the development agreement that he shall be liable to assign the flat to the nominee of the builder, as clause 4 and 5 of the development agreement mentions this as under:-
“C. The aforesaid developer offered to develop and construct at its own cost, a multistoried commercial cum residential building on the said property of the owners (hereinafter referred to as the said building) and the owners being desirous of wanted and agreed to acquire flats, offices, and other built up areas of the said building as consideration for part of the said property to be conveyed by the owners to the developer or its nominees including a Co-operative housi
