Smt. Sangita Paul, Member
This is a case filed by Sri Samir Mondal , S/o. Late Pulin Chandra Mondal and Smt. Krishna Mondal W/o. Sri Samir Mondal of Sonarpur Noapara, Dist. – 24 Pgs (South), Kolkata - 700 150 against Somantha Chatterjee, Sri Tanmoy Mondal and Sri Ranjit Ghosh with a prayer for a direction upon the OPs to execute and register the deed of conveyance in respect of Flat B1, mentioned in the schedule herein under in favour of complainants, to hand over the completion certificate of Flat B1, to pay an amount of Rs.5,00,000/- to the complainant for prolonged harassment, mental agony and pain and to pay a sum of Rs.1,00,000/- as litigation cost.
OP No.1, Sri Somnath Chatterjee S/o. Late Jayanta Chatterjee is the developer.
OP No.2, Sri Tanmoy Mondal, S/o. Sri Bankim Mondal is another developer. Both 1 & 2 reside at 13, R. K. Chatterjee Road, P.S. – Kasba, Kolkata-700 042.
OP No.3 is Sri Ranjit Ghosh, Son of Late Radhanath Ghosh is the Landowner. He resides at Sonarpur, Noapara, P.O. and P.S. – Sonarpur, Kolkata – 700 150.
On 29.08.2012, a Development Agreement was signed between OP No.3 the landowner and the Developers OPs No.1 and 2 to construct multi storied building as per sanctioned building plan. The OP No.3 made a general power of attorney on 29.08.2012 in favour of OPs No.1 and 2 to sell, convey, transfer, agreement for sale with any intending purchaser and receive amount of advance booking or total amount of consideration. The General Power of Attorney has been duly registered before office of the D.S.R. IV 24 Pgs (South).
On 01.05.2014, complainants entered into an agreement for sale with the OPs 1 and 2 to purchase one self contained residential flat in the 1st floor at the Western side being Flat No. B1 measuring a super built up area of 550 Sq.ft. consisting of 2 bed rooms, one kitchen/dinning, 1 toilet and 1 balcony of proposed 3 storied building which is mentioned in the schedule herein under as per terms and conditions mentioned in the agreement at the total consideration of Rs.19,25,000/- (Rupees Nineteen lakhs twenty five thousand) only.
At the time of signing the agreement, the complainants paid Rs.3,00,000/- (Rupees three lakhs) only as advance money by cash on 01.05.2014, they paid Rs.2,00,000/- only on 02.05.2014, Rs.3,00,000/- on 15.05.2014, Rs.7,00,000/- only on 15.07.2014, Rs.3,00,000/- only on 19.09.2014, Rs.2,25,000/- on 07.10.2014 and Rs.1,00,000/- only on 28.11.2014. Thus OPs 1 and 2 received Rs.18,25,000/- (Rupees Eight lakhs twenty five thousand) only. Thereafter the complainants further paid Rs.1,00,000/- only to the OPs 1 and 2, but the OPs 1 and 2 did not issue money receipt to the complainants. As complainants paid entire amount of consideration of Rs.19,25,000/- (Rupees Nineteen lakhs Twenty Five Thousand) only to the OPs as per agreement for sale, OPs 1 and 2 handed over possession to complainants but it was discovered that the flat measured 650 Sq.ft. The price of 100 Sq.ft. is Rs.3,50,000/- only. Complainant paid Rs.1,93,000/- on different dates. Complainants admitted to pay the outstanding amount of Rs.1,57,000/- only at the time of registration, but the OPs did not execute and register the sale deed in the name of complainants. The acts of the OPs amount to deficiency in service. The cause of action arose on 01.05.2014. Hence complainant prays for directing the OPs to execute and register the deed of conveyance in respect of the Flat B1, mentioned in the schedule, in favour of complainants, to hand over the completion certificate of the scheduled flat, to pay an amount of Rs.5,00,000/- only as compensation for prolonged harassment, mental agony and pain and to pay Rs.1,00,000/- only as litigation cost.
OP No.3, in its written version states that the instant case filed by complainant is absolutely meritless and baseless and not maintainable in the eye of law.
That the complainant has no locus standi to file the said application, and the petition has no cause of action.
That the said application is barred by limitation.
The OP No.3 is the absolute owner of land, measuring 3 cottahs and 8 chittaks in District 24 Pgs (South). OP No.3 made a general power of attorney in favour of OPs No.1 and 2 to build, sell, transfer, agreement for sale with any intending purchasers with a condition that all sale proceeds shall be deposited in the principal account. But OPs 1 and 2 in collusion with the intending purchaser did not open any principal account and they did not deposit a single farthing.
The OPs 1 and 2 received all advance money from all intending purchasers including complainants. The OP No.3 requested the OPs 1 and 2 to open the principal “account”. As a result, on 02.03.2016, OP No.3 revoked the power of attorney, executed on 29.08.2012 being deed No.00536 for the year 2012. Then the revocation of Power of Attorney was published by Advocate Debidads Modak on 12.03.2016 in the Ananda Bazar Patrika due to Breach of Development Agreement.
That the OPs 1 and 2 and complainants 1 and 2 in collusion with each other suppressed the fact to OP No.3 regarding the agreement and made payment of the said flat. Complainants filed the case to harass OP No.3.
OP No.3 prays for dismissal of the case with exemplary cost.
OPs 1 and 2, the developers in their written version deny and dispute the allegations contained in the said complaint. That the said complaint is not maintainable. OPs 1 and 2 further state that the said complaint is malafide and speculative. The said complaint is barred under the principles of waiver, estoppel and acquiescence. The complaint does not fall within the purview of Consumer Protection Act, 2019. The said complaint is liable to be dismissed. No deficiency in service and unfair trade practice have been adopted by the OPs. Complainant is not entitled to get any relief as prayed for.
The condition precedent for a complaint is wholly absent in the facts and circumstances of the instant case. That the complainant is not a consumer within the purview of C.P. Act, 2019 and the dispute involved is not a consumer dispute. The complainants and the OPs are the joint owners of the property in dispute and only civil court has the jurisdiction to adjudicate the dispute.
The complainant approached the Honorable Commission with unclean hands. That the said complaint is frivolous, and vexatious. An agreement was executed between OP No.1 and 2 on the one hand and between OP No.3 to construct a multi storied building on the land of 3 cottach and 3 chittak with 300 Sq. ft structure. OP No.3 gave power of attorney to the OPs 1 and 2. An agreement was executed by and between complainant and OPs 1 and 2 in respect of the flat, being No.B1 measuring 990 Sq.ft. on 01.05.2014. However, the power of Attorney was revoked by OP No.3. OPs 1 and 2 are entitled to get Rs.1,00,000/- only from the complainants. Complainants are in possession of the said flat since 16.12.2015.
OPs state that complainant is not entitled to any relief.
The complaint case was filed on 25.09.2020. The case was admitted on 05.10.2020. On 28.06.2022, argument was heard and we proceeded for giving judgement.
Points of Consideration :
- Are the complainants consumers?
- Are the OPs guilty of deficiency in service and unfair trade practice?
03.Are the complainants entitled to get any relief as prayed for?
Decision with Reasons :
- On perusal of existing records and document, it appears that OP No.3 made a general power of attorney on 29.08.2012 in favour of the OPs 1 and 2 to sell, convey, transfer, agreement for sale with any intending purchaser, receive consideration money. A multi-storied building was supposed to be built on the said premises in Touzi No.261, J.L. No.40, R.S. No. R.S. Khatian No.1090, 1098 and 1091, C.S. Dag No.514, R.S. Dag no.567 corresponding to L.R. Dag No.577 under Rajpur Sonarpur Municipality, being holding No.1544 and 64. Complainants entered into an agreement on 01.05.2014 with OPs 1 and 2 for purchasing a flat being Flat no. B1 measuring super built up area of 550 Sq.ft. Complainant paid the total consideration of Rs.19,25,000/- only. At the time of agreement, complainant paid Rs.3,00,000/- only on 01.05.2014 in cash. Again complainant paid Rs.2,00,000/- on 02.05.2014, Rs.3,00,000/- on 15.05.2014, Rs.4,00,000/- on 15.07.2014, Rs.3,00,000/- on 19.09.2014, Rs.2,25,000/- on 07.10.2014 and Rs.1,00,000/- on 28.11.2014. Complainant paid Rs.18,25,000/- in total. Thereafter, complainant paid again Rs.1,00,000/- only as per agreement for sale. Complainant was not delivered money receipt for Rs.1,00,000/-As complainant paid the entire consideration money, he is a consumer U/S 2(7) of Consumer Protection Act, 2019. Hence, the 1st point is decided in favour of complainant.
- Complainant paid in full the total consideration amount. And OPs 1 and 2 handed over the vacant and khas possession of the said flat on 16.12.2015. Before taking possession it was seen that the measurement increased by 100 Sq. ft. for which, complainant had to pay Rs.3,50,000/- more. Complainants undertook to pay the increased amount and paid Rs.1,50,000 only on 25.02.2019. Altogether complainant paid Rs.1,93,000/- by 15.12.2017 out of Rs.3,50,000/- only. Complainant requested for several times to register the Deed of Conveyance of the subject flat. But the OPs did not pay any heed to the complainant’s request. Complainant sent an advocate’s letter on 18.06.2020 to the OPs 1 and 2 to execute and register the sale deed, but the OPs failed to execute and register the sale deed as per terms and conditions of the Agreement for sale, dated 01.05.2014 which amounted to Deficiency in service on the part of the OPs. After registration OPs are liable to hand over completion certificate to the complainants. The outstanding amount was Rs.1,57,000/-. Complainant undertook to pay the rest amount at the time of registration.
On 02.03.2016 the power of attorney which was given by the OP No.3 to OP Nos.1 and 2 was revoked by OP No.3, the land owner. The OPs 1 and 2, the developer lost the power to do the pending work and to sell the property and to register the deed of conveyance. OP No.3 has given power to OPs 1 and 2 to build the house. After completion of the building, the OP No.3 revoked the power of attorney. Due to dispute between OPs 1, 2 and OP No.3 on the other hand the complainants suffer immensely. It is the unfair and wrong trade practice adopted by the OPs for which complainants had to suffer for no fault of their own. Due to deficiency in service and unfair trade practice adopted by the OPs the flat of complainants is not registered. So the second point is decided in favour of complainants and against the OPs.
- OP No.3 made a general power of attorney in favour of OPs 1 and 2 to build, sell, transfer and make agreement for sale with any intending purchaser, with a condition that the sale proceeds would be deposited in the principal account, but the OPs 1 and 2 did not deposit the sale proceeds by opening an account. In the written argument, OP No.3 states that he did not get the owner’s allocation. Complainants are not responsible for the dispute between OP No.3 on the one hand OPs 1 and 2 on the other. The price of the flat is Rs.22,75,000/- for 650 Sq.ft. Complainants paid Rs.20,18,000/-. It is evident from the money receipts. Complainants also admitted that the rest amount would be paid at the time of registration.
In the meantime, the power of attorney was revoked by OP No.3. and the complainants are put in trouble. Their flat is not getting registered. Complainants spend time in mental agony and pain. Hence, complainants are entitled to get relief as prayed for. Hence, the 3rd point is decided in favour of complainants and against the OPs.
In the result, the complaint case succeeds.
Hence, it is,
ORDERED
That the instant case be and the same is allowed with cost of Rs.30,000/- against the OPs 1, 2 and 3.
That the OPs 1, 2 jointly or severally are directed to deliver the land owner’s (OP No.3’s) allocation as per agreement dated 09.08.2012 within 60 days from the date of this order.
That the complainants are directed to pay the outstanding amount of Rs.2,57,000/- to the OPs 1 and 2 within 60 days from the date of this order.
That the OPs 1 and 2, along with OP No.3 are directed to register the flat in question and take proper steps in getting the completion certificate within 60 days from the date of this order.
That the OPs jointly or severally are directed to pay compensation to the tune of Rs.2,00,000/- to the complainants within 60 days from the date of this order.
That the litigation cost will be paid by the OPs 1, 2 and 3 within 60 days from the date of this order.
Complainants are at liberty to put the order into execution if the orders are not complied with within the stipulated period of 60 days.
Let a copy of the order be supplied free of cost to the parties concerned.
That the final order will be available in the following website www.confonet.nic.in.
Dictated and corrected by me.
(Sangita Paul)
Member
