DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __132_ _ OF ___2017
DATE OF FILING : 3.10.2017 DATE PASSINJUDGEMENT: 05/03/2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Papiya Chakraborty, wife of Chiranjib Roy at 53/A, Santoshpur Avenue, 2nd floor, Kolkata-75, P.S Survey park.
O.P/O.Ps : 1. Smt. Manju Naskar, wife of late Balai Chandra Naskar
2. Sri Somnath Naskar, son of alte Balai Chandra Naskar
Both of South ghoshpara, P.O & P.S Sonarpur, Dist. South 24-Parganas, Kolkata-153.
3. Sri Subrata Gupta, Prop. Of Uma Associates , son of Sushanta Gupta of 11, Baikuntha Saha Road, P.S Purba Jadavpur, Kolkata-75.
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J U D G M E N T
Sri Ananta Kumar Kapri, President
The facts leading to the filing of the instant case may be epitomized as follows.
O.P nos. 1 and 2 are land owners of the land described in schedule to the complaint and O.p-3 is the developer thereof. O.p-3 was entrusted by the O.P nos. 1 and 2 to construct a building upon the schedule land. O.P-3 constructed it. One Sale Agreement dated 30.9.2011 was executed between the complainant and the O.Ps and thereby O.P-3 agreed to sell a self contained flat with a covered garage as succinctly described in Schedule B to the complaint to the complainant for a total consideration price of Rs.11,50,000/-. Complainant has paid Rs.10,80,000/- phase wise, in all, to the O.p-3. The possession of the flat has also been delivered to the complainant by the O.P-3. But registration of the flat in favour of the complainant is yet to be accomplished. So, the complainant has filed the instant case , praying for registration , payment of compensation etc. Hence, this case.
O.P-3 has not turned up to contest the case. Service of notice is presumed to have been made upon him. He does not appear and ,therefore, the case proceeds exparte against him.
O.P nos. 1 and 2 have filed written statement ,wherein it is contended by them that they executed a development agreement and general power of attorney in favour of O.P-3 i.e the developer. O.P-3 started selling the flats to others without delivering the owners ‘allocation to them and, therefore, general power of attorney was revoked on 20.11.2014. Such revocation has also been advertised in “BARTAMAN” Newspaper dated 26.11.2014. They did not execute the sale agreement of the complainant and, therefore, the complainant is not entitled to get relief against them. The case should be dismissed against them.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence is led on affidavit by the complainant. Written statement is treated as evidence of O.P nos. 1 and 2 vide their petition dated 27.6.2018. BNA filed by the complainant is kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
It is deposed by the complainant that the developer i.e O.p-3 executed the sale agreement dated 30.9.2011 , and thereby he promised to sell a self contained flat for a total consideration price of Rs.11,50,000/-.It is also deposed by him that he has paid Rs.10,80,000/- to the O.P-3 and that the possession of the flat has also been handed over to him. His only grievance is that the developer has not registered the flat in his favour inspite of constant
persuasions by him. These evidences of the complainant have virtually remained unchallenged.
O.P nos. 1 and 2 have submitted that the general power of attorney of the developer has been revoked by them and ,therefore, the developer has no authority to sell any flat to any person. The general power of attorney has been revoked by registered deed on 20.11.2014 and the same has been advertised in the newspaper on 26.11.2014. That the sale agreement, upon which the complainant banks upon, has been executed on 30.9.211 i.e much more before the cancellation of general power of attorney by the O.P nos. 1 and 2. On the date of sale agreement, the power of attorney of the developer was valid and in exercise of the authority conferred by power of attorney ,the developer executed the sale agreement at that time. So, the sale agreement can never be invalid and is binding upon the O.P nos. 1 and 2. The complainant is, therefore, deemed entitled to get relief or reliefs as prayed for.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P1 and 2 without cost and allowed exparte against O.p-3 with a cost of Rs.10,000/-.
The O.Ps are directed to execute and register the deed of conveyance in favour of the complainant with respect to the subject flat within a month of this order.
The complainant is directed to deposit the balance consideration price i.e Rs.70,000/- with the Forum before getting the flat registered in her favour.
The O.P-3 is also directed to pay a sum of Rs.1 lac as compensation to the complainant for causing harassment and mental agony to her within the aforesaid period i.e within a month of this order, failing which, the compensation amount and cost amount will bear interest @12% p.a till full realization thereof.
Let a free plain copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
