West Bengal

South 24 Parganas

CC/139/2015

Sourav Das, S/O - Sri Akhoy Kumar Das. - Complainant(s)

Versus

1.Dola Das, W/O Sri Santu Das. - Opp.Party(s)

Ramanuj Banerjee.

28 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _139_ OF ___2015_

 

DATE OF FILING : 23.3.2015                     DATE OF PASSING JUDGEMENT: 28.03.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Subrata Sarkar

                                                                             

COMPLAINANT        :    Sourav Das,s/o Sri Akhoy Kumar Das of F/28, Katjunagar,                             P.S Jadavpur, Kolkata – 32. 

 

•  VERSUS  -

 

O.P/O.Ps                            :  1. Dola Das, w/o Sri Santu Das of F/28, Katjunagar, P.S. Jadavpur,Kol-32

                                               2.  Subhas Sil, s/o Late Ram Prosad Sil of F/28/1, Katjunagar, P.S. Jadavpur,Kol-32

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Udayan Mukhopadhyay, President

The short case of the complainant is that O.P.-2 is the absolute owner of the plot measuring 1 cattah 4 chittak 15 sq.ft at premises no. F/28/1, Katjunagar, P.S. Jadavpur,Kol-32 as wellas premises no. 139/199, Prince Golam Hussain Shah Road. O.P-1 is the developer and made a development agreement with the O.P-2 and thereafter complainant entered into an agreement for sale with the O.P-1 to purchase a room along with privy in the top floor at the said premises and paid full consideration money of Rs.2,50,000/- to the O.P-1 who has received the same and O.P is also bound to execute and register the sale deed in the name of the complainant but inspite several requests even sending lawyer’s letter , though O.P-1 admitted the agreement but expressed his inability to execute and register the sale deed since General Power of Attorney has already been cancelled by the O.P-1 on 14.1.2015 . Hence, this case for registration of the deed of conveyance as well as compensation and litigation cost.

            O.P-1 contested the case by filing written version and has admitted receipt of Rs.2,50,000/- from the complainant and to execute and register the sale deed  in respect of the schedule property. It has further stated that O.P-2 cancelled the power of attorney on 14.1.2015 for which he could not execute and register the sale deed and cancellation of power of attorney is filed. Hence, he has no laches on his part in the matter of execution and registration of sale deed and prays for dismissal of the case.

            O.P-2 also filed written version  and has denied all the allegations leveled against him. It is the positive case of the land owner that in terms of the development agreement the ground floor and the first floor will be the property of the land owner and second floor and third floor will be the property of the O.P-1 Dola Das ,for which, G+3 storied building was constructed by the promoter in terms of the development and subsequently the promoter Dola Das , O.P-1 handed over possession of the ground floor, first floor leveled to the land owners ,O.P-2, and O.P-1, Promoter, also sold out  her own second and third floor flat to competent parties executing deed of conveyance. So, the terms and conditions of the development agreement and the registered power of attorney was satisfied and there is no existence of any 4^th floor in the Master Plan of the  building . It has further submitted that stair case room and common room is on the roof of the G+3 building  which was to be handed over to the True and lawful owners of the G+3 building i.e. the owners of the 4 nos of flats of the said G+3 building. It has claimed that O.P-1, the promoter and her workers used to say in the stair case room and common room as their store room where a portable generator, a portable pump set, cement bags, colour bags and other equipments were kept and the key was kept by the promoter Dola Das, the O.P-1 . O.P-1 with ill motive did not hand over the key and possession of stair case room and common room  to the owners of the said building and thereby one joint meeting was held on 17.9.2014  where all the four owners were present and Sri Santu Das husband of the promoter Dola Das was present but he denied to put his signature on the meeting book though the meeting was continued. The husband of the O.p-1 denied to hand over the key and possession of the said stair case room and common room, for which a joint letter was sent to the promoter Dola Das by all the flat owners to hand over the key of the stair case room and common room and to complete the seven numbers of unfinished works of the G+3 building, but no reply form the O.P-1 was received by the four nos. of owners of the said building. In this circumstances Land owners revoked the power of attorney on 14.12.2011 by executing and registering the deed of revocation on 14.1.2015. Accordingly this O.P-2 strongly claimed that he has no relation with the complainant and in collusion and conspiracy with the O.P-1 he is illegally claiming one room with privy as described in the schedule of the application. Complainant has no right, title and interest in the said flat .Apart from that, O.P-1 has no right and/or authority to sell the flat or collect  the money of the said building and the said property is not developer’s allocation. So, complainant is not a bonafide purchaser and he is illegally claiming the room in question. Accordingly O.P-2 prays for dismissal of the case.

Points for decision in this case is whether there is any deficiency in service on the part of the O.Ps or not.

                                                                        Decision with reasons

            In order to pass effective judgment the development agreement between the O.P-1 and O.P-2 is required to be verified, wherein we find that it was agreed by and between the parties that second party will raise G+3 storied building over the said property at his own risk, cost and responsibility  within  18 months from the date of execution of the agreement ,from where owner will get 50% as owner’s allocation  of the proposed construction and developer will get 50% of the proposed construction in respect of the schedule property. It has also stated in page 5 that the second party developer shall sell or sign in the deed of conveyance in favour of any intending purchasers  from the developer’s allocation only after handover legally the said 50% of the proposed construction to the owner/1^st party as per this agreement . It has also stated at page 6 of the development agreement that ground and 1^st floor will get by the owner and it will be treated as owner’s allocation and 2^nd floor and 3^rd floor get by the developer and it will be treated as developer’s allocation. Roof of the premises will remain common by the owner and the developer and their men, agents associate and purchaser. The owner and the developer both ahs every right transfer sold their respective allotment or share to the intending purchasers. It has specifically mentioned that second party has every right to enter into an agreement with the intending purchaser for sale or receive advance money from the intending purchasers for his allotted share and the first party is bound to execute and register the general power of attorney in the name of the developer for development of the property or execute or register the sale deed in the name of the intending purchasers in respect of the development agreement.

            This is the Development agreement in between O.P nos. 1 and O.P-2 made on 12^th December, 2011. So, in terms of the development agreement O.P-1 being a developer is only entitled to sell second floor and third floor of G+3 storied building and first and second floor will be allotted to the owners i.e. O.P-2. So, from the written version of the O.P-2 we find that O.P-2  has rightly revoked the general power of attorney after completion of the possession of owner’s allocation and sale of two flats by the developers to the intending purchasers and we find that agreement was 50-50 share. If that be so, then the developer ,O.P-1 has no right to sell more than 50% of the share to any intending purchasers including the complainant and development agreement was a registered development agreement. So, any of the party cannot departure from the said development agreement and we find that the complainant made an agreement for sale with the O.P-1 ,the developer, wherein no consent of signature is appearing of O.P-2. Thus O.P-2 has no legal obligation to execute and register the said flat in dispute which is claimed by the complainant in the top floor of the premises, since there is no other floor and in a G+3 floor building there are four floors,  out of which first and second floor are possessed by the land owners and 3^rd and 4^th floors are already sold out by the developer to the intending purchasers. Thus O.P-1, developer, with a false plea grabbed the money of the complainant i.e. Rs.2,50,000/- with an assurance that top floor flat will be given but there is no question of top floor flat which is not the allocated portion of the O.P-1 and that top floor means the roof and the stair case room etc. which are common to all ( land owners and intending purchasers). Thus we find that complainant is not entitled to get the deed of conveyance . Moreover, complainant very cleverly did not raise any prayer for physical possession of the said flat . This circumstances clearly suggest that complainant has no possession over that property and by misleading this Bench complainant wanted to get the deed of conveyance in his name and thereby the common area of the occupant and landlord of G=3 storied building . This is a pre-planned and in collusion with the O.P-1 the same was happened. Accordingly, this is a glaring example of unfair trade practice as well as deficiency in service  by O.P-1 developer, for which, prayer for execution of deed of deed of conveyance will not be accepted.

            But inspite of all that, for the interest and benefit of the complainant the entire money of Rs.2,50,000/- should be returned to the complainant by the O.P-1 along with interest @15% p.a from the date of agreement for sale i.e. 23.12.20914 till its realization.

            Hence,

                                                            Ordered

That the application of the complainant under section 12 of the C.P Act, 1986 is allowed in part against the O.P-1,developer,  and dismissed against the O.P-2 the land owners.

The O.P-1 developer shall refund Rs.2,50,000/- along with interest @15 % p.a to the complainant from 23.12.2014 till its realization.

O.P-1 is further directed to pay compensation to the tune of Rs.50,000/- and litigation cost of Rs.5000/-  to the complainant .

No order is made against O.P-2 land owners having no Deficiency service on his part.

O.P-1 has to refund the entire money plus cost and compensation and interest accrued thereon within 1 month( 30 days )  from the date of this order, failing which, complainant is at liberty to execute the said order through this Forum and in that event, further Rs.10,000/- towards punitive damage has to be paid by the O.P-1 and that amount will be deposited in the Consumer Legal Aid Fund of South 24-pargnas.

This order is passed to protect the consumer from the hands of the developer at large.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                               Member                                                                       President

 

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 application of the complainant under section 12 of the C.P Act, 1986 is allowed in part against the O.P-1,developer,  and dismissed against the O.P-2 the land owners.

The O.P-1 developer shall refund Rs.2,50,000/- along with interest @15 % p.a to the complainant from 23.12.2014 till its realization.

O.P-1 is further directed to pay compensation to the tune of Rs.50,000/- and litigation cost of Rs.5000/-  to the complainant .

No order is made against O.P-2 land owners having no service on his part.

O.P-1 has to refund the entire money plus cost and compensation and interest accrued thereon within 1 month( 30 days )  from the date of this order, failing which, complainant is at liberty to execute the said order through this Forum and in that event, further Rs.10,000/- towards punitive damage has to be paid by the O.P-1 and that amount will be deposited in the Consumer Legal Aid Fund of South 24-pargnas.

This order is passed to protect the consumer from the hands of the developer at large.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

Member                                               Member                                                                       President