This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that complainant and his brother are joint owners of premises No.6/1, Serang Lane, Kolkata – 700 014, P.S. Taltala and the said premises was aged about 150 years old and was in a very dilapidated condition for which for construction of new building thereon demolishing the same in the month of December, 2002 complainant entered into an agreement with the OP1 and Aloke Gomes for development of the said building on a 35:65 basis but at that time OP1 misrepresented his origin stating that he was from Murshidabad and his mother was from Bangladesh and Aloke Gomes also mis-represented and gave his false address as No.16, Ram Shankar Roy Lane, Kolkata – 700 014 and as per agreement OP informed the complainant that as he was an owner he is entitled to one complete floor plus 1/3rd of the remaining flats and there is such terms in the said agreement. But sometime in September, 2003 building plan was sanctioned it was for G+1 but thereafter the construction was not made because OP1 was arrested on raping his maid servant and after reading the news from newspaper the complainant went to 63, Gardner Lane and found that the OP1 does not reside there and also went to 16, Ram Shankar Roy Lane and he came to learn that Aloke Gomes had left that place 12 years back but he was living in 56, Agha Medhi Street and considering their conduct complainant was surprised and it was further found that OP is also an accused in a murder case and considering that fact complainant intended to change the promoter with reputation. But thereafter, OP1 appeared in December, 2003 with Aloke Gomes refused to continue with the agreement as he had been cheated by OP1. Subsequently, the demolition of the old house was started in the month of April, 2004 and OP1 mis-appropriated the articles of the building including beams etc. when complainant opposed but no fruitful result was achieved. But OP1 confessed and promised to replace the same.
Subsequently, in the year 2005 OP completed three floors and they built the ground floor which is three feet below the street level. Complainant protested but OP gave a lame excuse that they had to build upto 13 metres yet in all the other buildings developed by the OPs in Central Calcutta although the building plan was for two floors but OP1 stated that by paying fine he shall regularize the matter.
At the time of construction complainant was moved to ground floor flat on western side which was an unfinished flat and when complainant protested the OP promised that he will complete the flat within one month but actually it has not been completed.
On 30th March, 2005 OP2 came along with head mistri Hyder Ali Sheikh and demanded the selling rights to the flats as according to her she now owned two thirds of the building. Against that complainant protested when altercation started complainant lodged a complaint with the local police station and met the O.C. to settle the matter and when OP agreed before the police that the matter the flat shall be completed within a short period and all necessary arrangements shall be made by him but it was found that OP2 did not complete complainant’s flat and from the electric connection of the complainant they gave electric connection to other flats from complainant’s electric connection and misused the said connection and for huge units a bill of Rs.30,999/- was found due which was not paid so, the connection was disconnected.
Practically for the deliberate, willful and negligence act of the OPs flat has not been completed and necessary allocation of the complainant (owner) are not made and practically for inconvenience of the sewerage, drainage etc. during the rainy season of the entire area, ground floor is inundated due to water logging and that water is from drain and sewerage.
Practically, sometime in the month of March, 2005 started construction of another floor where four flats were built, two one room flats and two two-room flats, but they did not give the complainant his share instead they sold all these flats to Muslims community people against the agreement made in between the complainant and the OP and they have been inducted tenants without the consent of the complainant and without allocating the complainant’s share as per agreement. Thereafter, in the month of June, OP through their benamdar Sanjit Khan filed a title suit No.2347 of 2008 in the IX Bench and an ex parte order of injunction was secured and that matter is still pending though complainant has already filed such objection.
Subsequently, OP finally decided to complete the complainant’s ground floor flat in 2009 but it was not completed as yet. Everything is being done violating the entire terms and conditions of the policy OP and did not complete the flat for which complainant was compelled to complete it by spending money from his own pocket to save their life.
Sometime in December, 2009, OP asked the complainant to vacate his bed room within two days and that was required for completion of the work but thereafter, OP did not appear when complainant was compelled to complete the said bed room at his own cost.
Fact remains in such a manner complainant has been harassed by the OP, complainant’s allocation portion has not been allocated, completion certificate has not been taken from the KMC and without allocating the complainant’s share OP has mis-sold the same without any power and without any valid documents though in the agreement of the parties it is clearly stated that before any transfer of the flat of the OPs that would be sold with the consent of the complainant only to cultured, educated and respectable person but OP did just opposite and in fact till today OP has not performed his part performance as per his agreement and deficiency and negligent manner of service is well-proved. So, in the circumstances, complainants have prayed for relief, compensation etc.
On the other hand OPs1 and 2 by filing written statement submitted and admitted about development agreement which was made in between the parties and it is specifically mentioned that one Aloke Gomes subsequently due to his personal inconvenience left the job and in his place came OP2 who is the wife of the OP1.
It is also admitted that the premises was more than 150 years old and it was in dilapidated condition, old materials were totally damaged and of no use but all allegations regarding selling of the old articles of the old building is completely baseless and absurd.
It is further submitted that the ground floor was not constructed below 3 feet of the street level but it is as per sanctioned plan but it is admitted that OPs are entitled to 65 percent of the built up area as developer’s allocation and OPs have their right to transfer the flats and units of their allocation and to receive the sale proceeds. OP further submitted that the construction of the building was completed long before in the year 2005 and the portion of the complainant i.e. 35 percent of the ground floor and 35 percent of the first floor has already been handed over to the complainant but some minor works remain incomplete due to non co-operation of the complainant. It is further submitted that standard materials was used for the purpose of construction but not below standard and so allegations are completely false and frivolous and allegation of low height of the boundary wall is also baseless and its head is 8 feet and everything was done within the knowledge of the complainant.
Further it is submitted by the OP that complainant appointed OP as his constituted attorney to transfer the developers allocation by way of sale lease etc. and when the construction was completed the brother of the complainant Gilbert Anthony James only on account of full and final settlement against his share sold his share and OP paid a sum of Rs.5 lakhs to Gilbert Anthony James to avoid further dispute and further it is submitted that the entire complaint is false and fabricated for which the same shall be dismissed without cost.
Decision with Reasons
After comparative study of the complaint and the written version and also considering the development agreement executed by the complainant and the OPs it is clear that a development agreement was executed in between the parties of this case that is in between Stanley James and Ahktar Mahmud and Arzoe Mahmud (w/o Ahktar Mahmud) on 14-04-2003 in respect of development of the newly constructed building and structure and construction within premises no.6/1, Serang Lane, Kolkata – 700 014, P.S. Taltala and execution of the said development agreement by and between parties is admitted by the OP and also in the written version OP has admitted as per agreement Stanley James is the first party who shall have to get 35 percent of the total construction and 65 percent shall be taken by the OPs. As per agreement that agreement shall be deemed to have commenced on and from 29-12-2002.
Admittedly as per agreement 2nd party OPs will construct a residential complex of G+3 floors on the said premises at their costs and expenses without any financial liability of the joint owners and construction of the building should be completed within two years from the date of obtaining the sanctioned plan from the KMC. So, considering that fact it is clear that complainant is entitled to get 35 percent of the construction in each floor out of entire construction but truth is that OP has not yet allocated the complainant’s 35 percent share in each floor but only some portion on the ground floor and first floor has been allocated as per landowner shares but in respect of the 2nd floor and 3rd floor no allocation of the owner has been made by the OP which is proved beyond any manner of doubt from the OPs own version. Anyhow, Ld. Lawyer for the OP submitted that OPs elder brother already received Rs.5 lakhs and surrender his share on receipt of Rs.5 lakhs from the Ahktar Mahmud and relinquished his share in favour of Ahktar Mahmud and a Xerox copy of receipt is filed by the OP but no registered sale deed in respect of that transfer by Gilbert Anthony James the OP is not proved that Gilbert Anthony James already sold away his share in favour of the OPs. So, in the eye of law OP has no legal right to claim share of the owner’s allocation by any means whatsoever. In the above situation we are convinced to hold that OPs claim that they purchased the share of Gilbert Anthony James in respect of the said premises or case premises is completely proved an illegal claim and so the defence of the OPs in this regard is found completely without any legal foundation and document. Fact remains complainant Stanley James initially filed the complaint singly and subsequently added his brother Gilbert Anthony James as the complainant but the agreement for development was executed in between Stanley James and OP Ahktar Mahmud and Arzoe Mahmud and when there is an agreement and that is the admitted by the OPs and OPs have claimed their 65 percent out of a construction as their allocation then under any circumstances, OPs cannot act beyond the agreement when it is admitted by the OPs that 35 percent of the entire construction shall be allocated to this landowner Stanley James as per agreement but it is proved that OPs have not yet transfer the allocations of the complainant as yet. But only it is admitted by the OP and OPs have also admitted by filing additional evidence in chief that in the development agreement there was no signature of complainant no.2 Gilbert Anthony James and it is admitted by the OP that complainant Stanley James took possession of the flat in the said building that means one flat has been allotted to the complainant No.1 because share of Gilbert Anthony Gomes is deducted from 35 percent of the entire allocation which has not been handed over to the complainant No.1 but in view of the fact OPs have failed to prove transfer of Albert James share, so, it is clear that OP has not at all completely performed his part performance as per the said agreement dated 14-11-2003. It is also fact that complainant has failed to produce the sanctioned plan of the KMC and also failed to prove that complainant was allocated 35 percent of the entire construction (G+3). On the contrary OP has tried to convince that he got a power of attorney on the basis of which he did all such work and sold his 65 percent of the construction etc. but truth is that OP has failed to produce any such registered power of attorney executed by Stanley James and Gilbert Anthony James and they handed over a registered power of attorney for selling any portion as per agreement to other persons in respect of the said premises. Anyhow, OP has produced a copy of power of attorney but it is found that it is not a registered power of attorney. So, under any circumstances, OPs have their no right to sell or to induct any tenant in respect of the said premises at the same time OP had no power to make or execute any deed or lease in respect of the premises to any third party as per provision of Section 32 and 33 of the Registration Act but OPs have done this invariably without any power of attorney and that is completely illegal and if any sale deed is executed by OPs to third party by selling of the said premises that is completely void ab initio and bad in law and in the eye of law OPs have their no legal right to transfer or sell or induct any tenant in respect of the premises in respect of the allocated portion of the landowners and OPs by any means and if any such act has been done by the OPs that is no doubt illegal in the eye of law and that is the settled legal position. No doubt in the present case complainant has not got the 35 percent share out of the entire construction and OPs in his written statement has admitted that the flat which has been allocated to the complainant in the first floor that is covered up to 35 percent of the entire construction and OP has also admitted that the said flat is incomplete but his plea is that this incompleteness of the flat is due to the resistance made by the complainant. Whatever it may be it is proved that complainant has not got his 35 percent share out of the entire construction but OPs are legally bound to handover it to the complainant and truth is that OPs without getting any registered deed of power of attorney for selling right of the OPs 65 percent of the construction sold away to different persons illegally and practically there is no other portion of the flat vacant for allotment to the complainant. In the above situation it can safely be said that all the sale deeds executed by the OP without any registered power of attorney in favour of many persons is in the eye of law is illegal and by such sale deed the so called purchasers have not acquired any sorts of interest right and title in the said flats and regarding sale of the complainant’s 35 percent share out of the entire construction OP has no legal right to sell share of the landlord the complainant. But that has been done which is proved from the OP’s own document as filed showing that they have sold 10 different persons 10 flats but as per OP’s allocation OPs are entitled to 65 percent of the construction of the each floor and complainant is entitled to 35 percent of the entire construction and in each floor the complainant is entitled to get flat of 35 percent of the construction per floor. But peculiar factor is that OPs by force sold away all those property illegally and by that sale the so called flat owners have not acquired any right title interest in the property and all those deed of sale are void ab initio in the eye of law. Truth is that complainants got a meager area of flat and same is also incomplete as admitted by the OP and considering the entire fact it is found that OPs have failed to produce any document to show that the Sanctioned Plan has been obtained by the OPs from the KMC and that has been supplied to the complainant along with his 35 percent share in each floor out of the entire construction. So, deficiency, negligence on the part of the OPs is well proved and deceitful manner of providing service is proved.
Another factor is that OPs practically showed their muscle power and created pressure upon the complainant, the Senior Citizen lawyer and forced him to stay in such a critical situation though he is legally entitled to 35 percent share of the each floor but that has not been given to the complainant though OPs have failed to produce any document to show that his brother sold away his portion to the OP and money receipt which is produced by the OP does not prove that fact. Complainant No.2’s right title interest of the premises has been sold out to the OPs. No valid registered document is produced by the OPs to show that complainant no.2 has transferred the right and executed the sale deed in favour of the OPs who then disposed of the flats to the third party by selling the same and no doubt such sort of practice is illegal and without any jurisdiction and by such act complainant right cannot be curtailed and at the same time it is proved that the OPs have failed to prove that he has a completed the flat as per regulation of the KMC and KMC has issued completion certificate. So, it is proved that OPs are reluctant to produce any such document in view of the fact in their hand act there is no such document of completion certification, registered power of attorney, any registered sale deed executed by Gilbert Anthony James etc. It is to be mentioned here that when a development agreement is made between complainant Stanley James and OPs in that case OPs are bound to perform the said terms and condition of the agreement of development and it is his bounden duty to handover the Khas possession of the 35 percent of the each floor and also to handover such flats in each floor after completing the same as per agreement clause but OPs have not completed the same as yet for which no doubt complainant is entitled to compensation and in the above circumstances and considering the entire facts and circumstances we find that complainant is entitled to compensation and in the above circumstances, and considering the entire facts and circumstances we find that complainant is entitled to get a degree as prayed for in view of the fact OPs have stated that they have no flat to handover to the complainant at present and in the above situation if OPs failed to handover the flat in each floor to the extent of 35 percent of each floor in that case OPs shall have to pay a sum of Rs.19 lakhs to the complainant and to complete the flat which is possessed by the complainant as per his choice and as per the agreement and OPs have to handover sanctioned plan completion certification issued by the KMC to the complainant and same must be completed within one month from the date of this order and for harassing the senior citizen, Advocate complainant in such a manner OPs shall have to pay litigation cost of Rs.10,000/- and also a compensation for his suffering mental pain and agony a sum of Rs.25,000/-.
No doubt OPs alleged that there is arbitration clause in the agreement and so it should be referred to Arbitration but such plea cannot be expected in this dispute because as per agreement construction in the case premises ought to have been completed within two years from the date of execution of the agreement dated 14-11-2013 so date of delivery of possession of the 35 percent share of the complainant should be delivered on 15-11-2005 but that has not been done by the OPs and no matter was referred by the OPs to the Arbitrator till filing of this complaint on 20-11-2013 and further violating terms and conditions of the policy OPs illegally transferred other flats to third parties without any valid power of attorney so it is proved that complainant is dissatisfied ab out the negligent and deficient manner of service of the OPs and their deceitful manner of business which comes under the purviews of the C.P. Act but as per the Arbitration and Conciliation Act such a dispute cannot be decided when consumer dispute can only be decided by the Forum. So, it is proved that the present complaint is tenable in the eye of law and there is no legal ground to refer the present consumer dispute to Arbitrator.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OPs with a cost of Rs.10,000/-.
OPs are hereby directed to handover Khas possession of 35 percent of the each floor construction that is a flat in each floor to the complainant and possession of that flat shall be handed over to the complainant Stanley James within one month from the date of this order and if OP fails to handover those flats within one month from the date of this order in that case OP shall have to pay Rs.19,00,000/- to the complainant as compensation. Further OP shall have to complete the flat which is possessed by the complainant and to complete the entire premises as per KMC sanctioned plan and shall hand over a completion certificate to the complainant within one month from the date of this order along with copy of Sanctioned Plan.
If OPs fail to comply the order in that case OP shall have to pay penal damages at the rateRs.15,000/- per month for non-delivery of flats or Rs.19,00,000/- which shall be deposited to this Forum month by month till the entire order is completed by the OPs.
For causing mental pain and agony and sufferings of the Senior Citizen, Ld. Advocate Stanley James and for his huge financial loss OP shall have to pay a sum of Rs.25,000/- as compensation also and that shall be paid within one month from the date of this order.
For adopting such sort of deceitful manner of business adopted by the OPs developer OPs shall pay a sum of Rs.30,000/- as penalty for adopting such deceitful manner of business which shall be deposited to this Forum and it is imposed only to check such sort of activities the present OP/developer and it shall be deposited to this Forum account within one month from the date of this order. If OPs are found reluctant to comply this order in that case penal action u/s.27 of the C.P. Act shall be started against them for which further penalty and fine may be imposed.
