Date of filing: 07/02/2018                                                    

Date of Judgment: 10/07/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This consumer complaint is filed by Md. Masihul Alam and Smt. Shyamali Debnath under section 12 of the Consumer Protection Act, 1986 against opposite parties (referred as OPs hereinafter) namely (1)(a) Smt. Samriti Guha (1)(b) Smt. Babli Guha (1)(c) Sri Avik Ghua [OP (1)(a) to (1)(c) substituted after the death of OP 1 Sri Shib Sankar Ghua] (2) Smt. Indira Mukherjee (3) Sri Samir Kumar Mukherjee (4) Sri Swapan Kumar Mukherjee (5) Sri Shyamal Kumar Mukherjee (6) Sri Kamal Kumar Mukherjee and (7) Sri Dulal Kumar Mukherjee, alleging deficiency in rendering of service on the part of OPs.

Case of the complainant in short is that OP 2 to 7 being owners entered into a development agreement with OP 1 Shib Sankar Guha (since deceased and his legal heirs being OP (1)(a) to (1)(c)) to raise a multi storied building on the property described in the schedule of the said development agreement. A general power of attorney was also executed by OP 2 to 7 in favour of the said Shib Sankar Guha. Consequent to the said development agreement and power of attorney, said Shib Sankar Guha entered into an agreement for sale with the complainant on 08.06.2012 to sell a flat as described in the said agreement in the 2^nd schedule at a total consideration of Rs. 8,00,000/-. Complainant has paid the entire consideration price and on receipt of the same, OP 1 Shib Sankar Guha (since deceased) also delivered the possession to the complainant on 14/01/2014. Since then complainants are in possession of the flat but in spite of repeated request as opposite parties did not execute and register the deed of conveyance in favour of the complainants, present complaint is filed praying for directing the opposite to execute and register the deed of conveyance in favour of the complainants, to pay compensation of Rs. 50,000/- and litigation cost of Rs. 30,000/-.

On perusal of the record it appears OP 2 to 7 have contested the case by filing the written version contending inter-alia that they have no knowledge about the agreement for sale between the complainants and the developer. It is specifically contended by them that Shib Sankar Guha the developer intentionally did not complete the construction of the owners’ allocation and handed over the possession of the portions of developer’s allocation to the intending purchasers. So OP 2 to 7 revoked the general power of attorney by a registered instrument on 24/02/2014 and the same was informed to the Shib Sankar Guha the developer. So OP 2 to 7 have prayed for dismissal of the complaint.

OP (1)(a) to (1)(c) have also filed written version contending specifically that they have no personal knowledge about the agreement between the complainant and their predecessor-in-interest and so they cannot be held liable. It is further contended that after the death of Shib Sankar Guha, their predecessor-in-interest, the power of attorney ceased to exist and as such they have no legal capacity to execute and register the deed of conveyance in favour of the complainants. So OP (1)(a) to (1)(c) have prayed for dismissal of the complaint.

During the course of the evidence, parties filed their respective affidavit in chief followed by filing of questionnaire and reply thereto and ultimately argument has been heard. But it appears that during argument only complainant was present. OPs did not take any step, neither they filed any brief notes of argument.

So the following points require determination:-

1. Whether there has been any deficiency in rendering of service on the part of the OPs?
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASONS

Both the points are taken up for a comprehensive discussion. In order to substantiate their claim, complainants have filed agreement for sale entered into between the complainants and the developer Shib Sankar Guha on 08/06/2012. The complainants have also filed the development agreement dated 17/07/2011 entered into between the owners OP 2 to 7 and the developer Shib Sankar Guna. They have also filed the copy of the general power of attorney. From the agreement for sale it is evident that the said Shib Sankar Guha as developer and the constituted attorney of the owners agreed to sell the flat as described in the 2^nd schedule of the said agreement at a total consideration price of Rs. 8,00,000/-. Possession letter dated 14/01/2014 filed by the complainants indicates that the possession was handed over to the complainant in respect of the flat as per agreement for sale dated 08/06/2012.

It may be pertinent to point out that OP 2 to 7 being the owners have not denied and disputed the execution of the development agreement and the general power of attorney executed in favour of Shib Sankar Guha the developer (since deceased) on 17/07/2011. They have only contended that since the construction of owners allocation was not completed and handed over, they revoked the general power of attorney executed in favour of the developer on 24/02/2014. So it is apparent that on the date of entering into agreement for sale with the complainants by developer Shib Sankar Guha, he was empowered to enter into agreement to sell the portion of developer’s allocation. It is already highlighted above that the agreement for sale with the complainant was entered into on 08/06/2012. The electric bill filed by the complainants further indicates that they are enjoying the flat taking the electric meter in their name. Since admittedly the deed of conveyance has not been executed in favour of the complainants either by the developer since deceased or by owners, complainants are entitled to the execution and registration of the deed of conveyance. Be it mentioned here that OP (1)(a) to (1)(c) substituted in place of deceased Shib Sankar Guha the developer, have rightly contended that they cannot execute and register the deed of conveyance as they are not empowered to do so and on the death of their predecessor-in-interest Shib Sankar Guha the power of attorney in his favour, lost its effect. Apart from this, it is also an admitted fact as stated by OP 2 to 7 that they have already revoked the power of attorney in favour of the said Shib Sankar Guna (since deceased). So in such a situation OP 2 to 7 being owners are liable to execute and take step for registration of the deed of conveyance in favour of the complainants. However in the given fact and situation of this case as complainants also remained silent, we find no justification to pass any order as to compensation or litigation cost.

Hence

          ORDERED

CC/60/2018 is allowed on contest. OP 2 to 7 are directed to execute and register the deed of conveyance in favour of the complainants in respect of the flat as per agreement for sale dated 08/06/2012, within two months from this date.