DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _70_ OF ___2016

 

DATE OF FILING : 14.7.2016    DATE OF PASSING JUDGEMENT:  12/04/2018_

 

Present :   President       :   Ananta Kumar Kapri

 

    Member(s)    :    Subrata Sarker  & Jhunu Prasad

      

COMPLAINANT        : 1. Souvik Ghosh, son of Debaprasad Ghosh

2. Jayita Ghosh, wife of Souvik Ghosh

Both are residing at M.N. Roy Road, Barendra Para, P.O Rajpur, P.S Sonarpur, Kolkata – 149 .

 

 VERSUS  -

 

O.P/O.Ps :  1. Mr. Subhasis Mandal, son of Sri Mahadev Mandal of B1/5,002, Prantik, Peerless Housing Society, Sonarpur, Kolkata – 150.

   2.   Karunamoy Nath, Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O Rajpur, P.S Sonarpur, Kolkata – 149. 

   3.   Prabir Kumar Nath at Rajpur Sawraler Bagan, Jugipara Road, P.O Rajpur, P.S Sonarpur, Kolkata – 149. 

4.     Ganesh Chandra Nath, C/o late Durgadas Mitra of Baikunthapur, Vivekananda Road, P.O Rajpur, P.S Sonarpur, Kolkata- 149. 

5.   Dinesh Chandra Nath, Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O Rajpur, P.S Sonarpur, Kolkata – 149.

6.   Kamalesh Nath, Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O Rajpur, P.S Sonarpur, Kolkata – 149.

7.  Samarash Nath, C/o late Durgadas Mitra of Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O Rajpur, P.S Sonarpur, Kolkata – 149.

_______________________________________________________________________

 

J  U  D  G  M  E  N  T

 

Sri Ananta Kumar  Kapri, President 

     The summation and summarization of the facts leading to the filing of the instant case by the complainants  is that O.P-1 is a developer and O.P nos. 2 to 7 are the land owners. Initially there was a development agreement dated 14.9.2011 between one Mithun Mistry and O.P nos. 2 to 7. General Power of Attorney was also executed between them on that day.  An agreement for sale of a self contained residential flat as succinctly described in the schedule of the complaint was also executed between the complainants and Mithun Mistry and O.P nos. 2 to 7 on 21.9.2012 and thereby the said Mithun Mistry agreed to sell a self contained flat to the complainants for a total consideration price of Rs.17,75,000/-. Complainants  paid Rs.6,50,000/- to Mithun Mistry. But Mithun Mistry could not complete the construction within the stipulated time and, therefore, O.P nos. 2 to 7 cancelled the power of attorney of him on 31.10.2014. Thereafter Mithun Mistry assigned his liability to the present O.P-1 by deed of assignment dated 2.10.2014. O.P nos. 2 to 7 also made a development agreement afresh with O.P-1 on 30.10.2014.An agreement for sale dated  19.3.2015 was also executed by and between the complainants and O.P nos. 1 to 7. The complainants  paid Rs.40,000/-to the O.P-1. O.P-1 and O.P nos. 2 to 7 have not delivered the possession of the flat to the complainants ; they have not also registered the deed of conveyance in their favour and, therefore, the complainants have approached the Forum by filing the instant case ,praying for possession of the flat , registration of sale deed and payment of compensation etc. Hence, this case. 

     Written statement is filed by the O.P-1 ,wherein it is contended inter alia that sale agreement dated 19.3.2015 was executed by him in favour of the complainants. According to him, he has taken over the liability of development of the land from Mithun Mistry. Complainants are  liable to pay Rs.11,25,000/- to him by 31.5.2015 i.e the date of registration. Possession was agreed to be delivered to the complainants after the registration of the deed. But, the complainants have not made the aforesaid payment and that he has thereby made a default in the payment of balance consideration price to O.P-1 and, therefore, the developer i.e O.P-1is entitled to terminate the agreement and refund the consideration price received after having deducted Rs.10,000/- therefrom. It is the further case of the O.P-1 that the complainants have forcibly taken possession of the flat and has been enjoying the same without making any payment of the balance consideration price as agreed between the parties. The complainants have not also taken any step for registration of the deed of conveyance. Complainants, being a defaulter in terms of the agreement, are not entitled to any relief , as goes the version of the developer i.e O.P-1. Power of Attorney of him has been cancelled by O.P nos. 2 to 7 and thus he has been rendered toothless and, therefore, he cannot effect registration of the deed of conveyance in favour of the complainants by virtue of the agreement. 

     Written statement is also filed by O.P nos. 2 to 7 ,whereby they have contended that they have no knowledge of the agreement dated  19.3.2015 executed between the complainants and the O.P-1. But they have seen the complainants occupying a flat forcibly on the second floor of the case building. Mithun Mistry has assigned his liability to O.P-1 and it is O.P-1 who will have to complete the construction of the building. The execution of development agreement dated 30.10.2014 is admitted by them. They also admit that they have executed general power of attorney dated 30.10.2014 with limited authority in favour of O.P-1. O.P-1 has not acted in terms of the general power of attorney and, therefore, the power of attorney has been cancelled by them . The complainants have taken over possession of the flat by flexing muscle power. They never paid any consideration price to them and they have for the first time come to know of the sale agreement of the complainants on receiving legal notice dated 19.4.2016 . They have no deficiency in service and the case should be dismissed in limini against them. 

     Upon the averments of the parties following points are formulated for consideration.

POINT FOR DETERMINATION

Are the O.P nos. 2 to 7 guilty of deficiency in service in respect of the sale agreement dated 19.3.2015 executed in favour of the complainants?

Is the O.P-1 i.e the developer guilty of deficiency in service in respect of sale agreement dated 19.3.2015 executed in favour of the complainants?

Are the complainants entitled to get the relief or reliefs as prayed for?

EVIDENCE OF THE PARTIES

Evidence on affidavit has been led by the complainants, O.P-1 and also by O.P nos. 2 to 7. Questionnaires, Replies and the BNAs filed on behalf of the parties are kept in the record for consideration. 

DECISION WITH REASONS

Point no.1:-

    Given the facts and circumstances of the case ,it is found that the O.P nos. 2 to 7 are merely land owners. They executed a development agreement in favour of Misthun Mistry, the erstwhile developer and thereafter with O.P-1, the present developer. They also executed a general power of attorney in favour of the said Mithun Mistry and have also executed a fresh power of attorney in favour of the present developer i.e O.P-1. They have authorized O.P-1 by the power of attorney to sell the flat from his developer’s portion in accordance with his choice and also to receive consideration price thereof. 

On perusal of the development agreement dated 30.10.2014 ( copy kept in the record) it is found that the land owners have not promised any kind of services to the complainants. It is the developer i.e O.P-1who has promised to render the services of different kinds to the complainants. This being so, we feel no hesitation to say that the land owners i.e O.P nos. 2 to 7 are not service providers and , therefore, the instant case is not maintainable against them. Hence, this point is primarily answered against the complainants. 

Point nos. 2 and 3:-

O.P-1 is the developer. He executed agreement for sale dated 19.3.2015 in favour of the complainants for a total consideration price of Rs.17,75,000/- . Complainants have paid Rs.6,90,000/- to him . Liability of contract has been assigned to O.p-1 by Mithun Mistry ,the erstwhile developer. General Power of Attorney has been executed by O.P nos. 2 to 7 in favour of O.P-1. All these facts go undisputed. 

The construction of the flat was agreed to be completed within 12 months of the date of agreement dated 30.10.2014 vide clause 19 at page 10 of the agreement. The developer i.e O.p-1 has the right to register the deed of conveyance in favour of intending purchasers of the flats and also to give possession to them and such right is given to the developer by general power of attorney vide clause 21 at page 10 thereof. The possession of the flat was to be given to the complainant on or before 31.5.2015 as per agreement for sale dated 19.3.2015 and the balance consideration price was also tobe paid to O.P-1 by the complainants on or before that date i.e 31.5.2015. It is true that the O.P-1 has not completed the construction of the flat within that period i.e 12 months from the date of agreement dated 30.10.2014. It is deficiency in service on the part of the O.P-1. At the same time, the complainants should have paid the balance consideration price to  O.P-1 on or before 31.5.2015, but the complainants have not paid the said sum to O.P-1 and this is also laches on the part of the complainants. It has been submitted on behalf of the O.P-1 that his power of attorney has been cancelled by the land owners and, therefore, he has been rendered toothless by them and he cannot register any deed of conveyance now in favour of the complainants . The land owners have also submitted that the power of attorney of O.P-1 has been cancelled by them as the O.P-1 acted contrary to the terms of power of attorney. 

Now to see whether the land owners can cancel the power of attorney of O.P-1. 

It is not specifically mentioned anywhere in the power of attorney that the said power of attorney may be cancelled by the land owners at any point of time. By the said power of attorney O.P-1 has been authorized to construct and develop the land and also to sell the flats constructed by him , having received the consideration price from the prospective buyers. So, it is found that the developer i.e O.P-1 has acquired sufficient interest in the transaction made by the land owners in his favour. When the developer has acquired sufficient interest in the transaction, the land owners cannot revoke the power of attorney and the power of attorney in a case of such kind becomes irrevocable. Section 202 of Contract Act lays down that where the agent has himself interest in the property which forms subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest. There is no express contract to the effect that the power of attorney may be terminated by the land owners and regards being had to this aspect and the legal provision as pointed out above, we feel not a least hesitation to say that the power of attorney executed in favour of O.P-1 by O.P nos. 2 to 7 is an irrevocable one and that can never be revoked by the O.P nos. 2 to 7. The said Power of Attorney was in force and  is still in force and by virtue of that power of attorney the O.P-1 is still authorized to dispose of or  sell the flats constructed by him to the prospective purchasers. The developer i.e O.P-1 has still the lawful authority by virtue of the said power of attorney to execute and register the deed of conveyance in favour of the complainants with respect to the flats agreed to be purchased by the complainants. 

Now we like to address ourselves to the question how much consideration price has been paid by the complainant either to Mithun Mistry ,the erstwhile developer or to the O.P-1 i.e the present developer. It is the version of the complainants that he has paid a total sum of Rs.7,60,000/- to them including payment of Rs.40,000/- to O.P-1. O.P-1 has stated that he has received Rs.40,000/- from the complainants and that the complainants paid Rs.6,50,000/- to Mithun Mistry.  So, according to him, a total sum of Rs.6,90,000/- has been paid by the complainant as consideration price. According to O.P-1 he has received Rs.6,90,000/- as consideration price. But complainant has stated that a further payment of Rs.70,000/- has been made to O.P-1 by him. In his reply to question of O.P-1, the complainant has stated that he paid Rs.70,000/- to O.P-1 but he has no money receipt to prove such payment. In absence of cogent evidence, i.e the money receipt we fail to believe the version of the complainant that he paid Rs.70,000/-to O.P-1 and regards being had to this aspect we do hold that the complainant has paid Rs.6,90,000/-only to the developers as consideration price. He is still under a liability to pay the balance consideration price i.e Rs.10,85,000/- (Rs.17,75,000/-  - Rs.6,90,000/-) till now to O.P-1.  

The complainants have already taken over possession of the subject flat. It is the case of the O.Ps that complainants have taken possession by flexing his muscle power with the help of antisocial elements.  The complainants have prayed for handing over peaceful vacant possession of the flat to him as they have taken only symbolic possession thereof. The nature of the prayer of the complainants regarding delivery of possession of the subject flat indicates and indicates only that the version of the O.Ps carries a good quantity of truth and it is established by their version that the complainants have taken possession of the flat forcibly by flexing muscle power. Be that as it may, the possession of the flat has been secured by the complainants ,be it in fair way or foul way. 

Now the question which arises for consideration in the backdrop of above fact of the possession of the flat as taken by the complainants is whether the complainants are entitled to get any compensation from the developer i.e O.P-1. There is a legal maxim that, “He  who seeks equity must do equity”. A person who takes law in his own hand is not entitled to claim equitable justice. The complainants have taken forcible possession of the subject flat without making payment of balance consideration money to O.P-1. They have taken the Law into their own hands and, therefore, in equity they are deemed to be not entitled to get any compensation from O.P-1. They are only entitled to get the registration of the deed of conveyance on payment of balance consideration price of Rs.10,85,000/-. 

The above points are thus answered accordingly. 

In the result, the case succeeds in part. 

Hence, 

ORDERED

That the complaint case be and the same is decreed in part on contest against the O.P-1 with cost of Rs.5000/- and dismissed on contest against O.P nos. 2 to 7 without cost. 

O.P-1 is directed to execute and register the deed of conveyance in respect of the subject flat in favour of the complainants, having received the balance consideration price of Rs.10,85,000/- from the complainants within a month of this order and, in case complainants fail to make payment/deposit of the balance consideration price as aforesaid within the above period, the case shall stand automatically dismissed. 

     Let a free copy of this order be given to the parties concerned at once. 

 

 

 

      President

I / We agree

                   Member Member

 

Dictated and corrected by me 

 

 

President 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is

 

ORDERED

That the complaint case be and the same is decreed in part on contest against the O.P-1 with cost of Rs.5000/- and dismissed on contest against O.P nos. 2 to 7 without cost. 

O.P-1 is directed to execute and register the deed of conveyance in respect of the subject flat in favour of the complainants, having received the balance consideration price of Rs.10,85,000/- from the complainants within a month of this order and, in case complainants fail to make payment/deposit of the balance consideration price as aforesaid within the above period, the case shall stand automatically dismissed. 

     Let a free copy of this order be given to the parties concerned at once. 

 

 

Member Member President