DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 219/2019

Date of Filing                                     Date of Admission                 Date of Disposal

  10.07.2019                                           16.07.2019                               22.12.2023

P R E S E N T                        :- Sri. Daman Prosad Biswas……….President.

                                                :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT/FINAL ORDER

            Complainant above named filed this complaint U/s 12 of the Consumer Protection Act, 1986 against the aforesaid Opposite Parties praying for direction to the Opposite Parties to finish the unfinished work of the schedule “B” flat, hand over the physical possession of the schedule “B” flat, issue certificate of clearance, compensation amounting to Rs. 2,00,000/-, cost of the case amounting to Rs. 50,000/- and other reliefs.

            Complainants alleged that by virtue of deed of gift, O.P No. 1 become the absolute owner of 2 cottah 14 chitaks 19.5 sq.ft. land and by virtue of deed of gift O.P No. 2 become the absolute owner of 3 cottah 5 chitaks 19.5 sq.ft. land of schedule mentioned property. They were unable to renovate their existing house under their possession over “A” schedule property and they finally decided to erecting a multi-storied building over the “A” schedule land. O.P No. 3 being the developer agreed to develop the said construction over the “A” schedule property by erecting / constructing a multi-storied building thereon by his own fund accordingly one development agreement was executed. In terms of the said development agreement dated 03/03/2013, O.P No. 1 and 2 executed an unregistered general power of attorney in favour of O.P No. 3 as their true and lawful constituted attorney and thereby entrusted the O.P No. 3 to do certain act and deeds which has embodied therein. In terms of the said development agreement one building plan was produced before the Barasat Municipality for multi-storied building and Barasat Municipality sanctioned the said building plan for erecting a G+3 multi storied building over “A” schedule land. Construction of the said G+3 building was being completed by the Opposite Parties consisting some flats, shop room, godown and covered area on the Ground floor.

Complainants expressed their desire to purchase a self-contained flat about 1104 sq.ft. on the 3^rd floor of the said multi-storied building lying and situated over “A” schedule property namely Santi Niwas subject to good and marketable title. Complainants entered into an agreement for sale with the O.P No. 3 on 15/02/2018. Complainants paid an amount of Rs. 11,50,000/-. Inspite of readiness to purchase the aforesaid flat by the Complainants after making payment of balance consideration amount of Rs. 5,06,000/-, the Opposite Parties declined to execute any registered sale-deed in favour of the Complainants.

Contd. To Page No. 2…./

: :  2  : :

C.C. No. 219/2019

Possession of the aforesaid “B” schedule flat was required to the Complainants. Finding no other alternative Complainants sent a letter dated 28/05/2019 through his Ld. Advocate Mr. Ananda Mohan Kundu and sent the same to the Opposite Parties with a request to get the registered sale-deed in respect of “B” schedule property in their favour. Inspite of receipt of said letter Opposite Parties neither sent any reply nor expressed their desire to execute any registered sale-deed in favour of the Complainants. According to the terms and conditions embodied in the agreement for sale dated 15/02/2018 Opposite Parties were under obligation to hand over the “B” schedule flat within 14/08/2018. O.P No. 3 failed to complete the unfinished work within the aforesaid period. Hence, the Complainants filed this case praying for aforesaid relief.

            O.P No. 1 and 2 contest this case by filing a W/V. They denied the entire allegations made in the petition of complaint and further contended that Santi Prabha Devi was the erstwhile owner of aforesaid “A” schedule property. Said Santi Prabha Devi got the “A” schedule property by way of partition dated 02/02/1990. Area of the aforesaid “A” schedule property is 6 cottah, 3 chitaks 39 sq.ft.. Thereafter O.P No. 1 and 2 and Smt. Dipali Chatterjee @ Chakraborty became the absolute owner of aforesaid “A” schedule property. Subsequently, Badal Chakraborty and Dipali Chatterjee jointly gifted the property to Sri Arabinda Chakraborty by way of two separate registered deed of gift vide no. 06307 of 2008 and 07275 of 2008. Land measuring 2 cottach 14 chitaks 19.5 sq.ft. was embodied in holding no. 1397. Land measuring 3 cottah 5 chitaks 19.5 sq.ft. was embodied in holding no. 1397/1. The owner of the land i.e. O.P No. 3 arrived at a conclusion with developer showing constructing proposed multi-storied building at his cost and expenses of the land of the owner under joint venture and accordingly by a joint venture agreement dated 03/03/2013 was executed and same was authorized on 04/03/2013 by notary public Swapan Kumar De. Accordingly, the owners granted unregistered general power of attorney on 03/03/2013 for execution the sale-deed for execution of the agreement for sale and other activities and same was notarized on 04/03/2013. Thereafter with the consent of both the owners aforesaid property mentioned in two holding i.e. Holding No. 1397 and 1397/1 were amalgamated and new holding was created vide holding no. 1397. Due to some unfavourable circumstance the developer could not complete the multi-storied building as per the stipulated period of time. Due to his dereliction of duty the owners have to suffer immensely. Subsequently, another supplementary joint development agreement was executed on 01/12/2016 in between the owners i.e. O.P No. 1 and 2 and developer i.e. O.P No. 3. O.P No. 1 and 2 had already obtained the possession certificate from the developer on 15/04/2017. O.P No. 1 and 2 have already possessed the flats and garage as true owners. Suddenly on 01/06/2019 O.P No. 1 and 2 received one legal notice from the Complainant claiming that Complainants have already entered into an agreement for sale in respect of flat no. 3/C without intimating the true owners of the property. After hearing the same O.P No. 1 and 2 called the O.P No. 3 and O.P No. 3 admitted that behind back of O.P No. 1 and 2 he had entered into an agreement for sale and took some money from the Complainants who deals with money lending business. O.P No. 3 assured the O.P No. 1 and 2 that within a very short span of time he would refund the said money to the Complainant and resolve the dispute amicably. As per clause 17 of the alleged agreement for sale this dispute requires to be referred to the arbitrator and this Commission has no jurisdiction to entertain the complaint. Present Complainants deals with a business of money lending and in lieu of high rate of interest they provided money to the developer i.e. O.P No. 3 only with a view to disturb the O.P No. 1 and 2 i.e. owner of the property. They prayed for dismissal of the case.

Contd. To Page No. 3…./

: :  3  : :

C.C. No. 219/2019

O.P  No. 3 also filed a separate W/V. He denied the entire allegations made in the petition of complaint and further contended that O.P No. 3 initially started his business and due to some unavoidable circumstances he felt necessity of some money. As per development agreement owners have no liability to pay any money to obtain owners allocations. It is the fact that one supplementary agreement was executed on 01/12/2016. Complying the terms of the said agreement developer has already handed over the possession on 15/04/2017. Present Complainants know everything. Due to extreme urgency O.P no. 3 obtained loan from Complainants and relating to the said transaction agreement for sale was executed which is nothing but a paper transaction and Complainants have no right over the “B” schedule property. He prayed for dismissal of the case.  

C.C. No. 219/2019

TRIAL

            During Trial Complainant No. 1 filed affidavit-in-chief on behalf of himself and on behalf of Complainant.

Documents

            Complainant filed the following documents at the time of filing of this case. Original were verified at the time of argument.

1. Money receipt dated 05/03/2018 in respect of Rs. 1,50,000/-…..xerox.
2. Money receipt dated 27/02/2018 in respect of Rs. 10,00,000/-…..xerox.
3. Lawyer’s notice dated 28/05/2019….xerox.
4. Track report dated 29/05/2019….xerox.
5. Track report dated 29/05/2019….xerox.
6. Agreement for sale dated 22/02/2018 duly notarized.

Complainant filed the following document subsequently.

1. Copy of general power of attorney dated 04/03/2013 duly notarized….xerox.
2. Another general power of attorney dated 04/03/2013 duly notarized….xerox.
3. Agreement for sale dated 22/02/2018 duly notarized.

BNA

Complainant filed BNA. O.P No. 2 filed BNA.

Decision with Reasons

             Complainants alleged in the petition of complaint that agreement for sale with the O.P No. 3 was executed on 15/02/2018 who is developer and also represented himself as constituted Power of Attorney of the land owners i.e. O.P No. 1 and 2. Complainants paid Rs. 11,50,000/- as consideration price out of Rs. 16,56,000/-. They are ready to purchase the said flat after making payment of balance consideration amount of Rs. 5,06,000/-. Complainants on 27/05/2019 made verbal request to the Opposite Parties for the last time to execute the registered deed of sale in their favour. Complainants also sent a letter dated 28/05/2019 through their Ld. Advocate to the Opposite Parties with a request to arrange registration of deed of sale in respect of the ‘B’ schedule property in their favour.

            Main contention O.P No. 1 and 2 is that Complainants are dealing with the business of lending money in lieu of high rate of interest. In the present case O.P No. 3 on behalf of himself and on behalf of O.P No. 1 and 2 executed the aforesaid agreement at the time of taking the aforesaid amount as loan.

Contd. To Page No. 4…./

: :  4  : :

C.C. No. 219/2019

We have carefully gone through the agreement for sale dated 02/02/2018. It is not the contention of O.P No. 1 and 2 that said document is forged one or said document was prepared without the authority of O.P No. 1 and 2. So, it is clear before us that O.P No. 1 and 2 by their Power of Attorney executed the same in favour of the Complainants. On perusal of the said document we find that this is an agreement for sale relating to the aforesaid flat. We also found that aforesaid document has been executed in favour of the Complainants on behalf of the O.P No. 1-3. So in absence of any counter evidence we cannot disbelieve the said document.

            Accordingly, it is clear before us that said document i.e. agreement for sale / Bynanama dated 02/02/2018 is valid and legal document and same is binding upon O.P No. 1-3.

            Accordingly, the contention of O.P No. 1 and 2 as well as contention of O.P No. 3 denying the aforesaid agreement for sale is not acceptable in the eye of law.

            Accordingly, it is clear before us that O.P No. 1-3 cannot disobey the aforesaid agreement for sale.

            We have carefully gone through the decision of Hon’ble N.C.D.R.C, Consumer Case No. 1337 of 2018 dated 02/06/2022 (Deepika Chaudhury Chandra and Another Vs. M/s Emaar MGF Land Limited). We find that Hon’ble N.C.D.R.C observed that Complainant is entitled to compensation for delay in delivery of possession.

            We have also carefully gone through the principles of law enunciated in the decision reported in (2016) 8 SCC 429.

            On perusal of record we find that value of the flat was settled in between Complainants and Opposite Parties as Rs. 16,56,000/-. Out of which Complainants have paid Rs. 11,50,000/-. During the trial Complainants produced two money receipts i.e. money receipt for the amount of Rs. 10,00,000/- dated 27/02/2018 and money receipt for the amount of Rs. 1,50,000/- dated 05/03/2018. Accordingly, it is clear before us that Complainants have paid Rs. 11,50,000/- in favour of the O.Ps and O.Ps will get Rs. 5,06,000/- from the Complainants.

            On careful perusal of record we find that Complainants are the consumer and O.P No. 1-3 are the service provider.

Having regard to the aforesaid discussion it is clear before us that Complainants have able to established their grievance by sufficient documents beyond reasonable doubt and they are entitled to relief as per their prayer.

            In the result present complaint succeeds.

Hence ,

It is ordered,

That the present case vide no. C.C./219/2019 be and the same is allowed on contest against the O.P No. 1-3 with cost of Rs. 5,000/- to be paid by O.P No. 1-3 in favour of the Complainants.

O.P No. 1-3 jointly or severally are directed to execute the sale-deed in respect of the flat mentioned in the schedule ‘B’ of the petition of complaint in favour of the Complainants after taking Rs. 5,06,000/- from the Complainants within 45 days from this day failing which Complainants shall have liberty to put this order into execution.

O.P No. 1-3 jointly and severally are directed to pay Rs. 2,00,000/- as compensation in favour of the Complainants within 45 days failing which Complainants shall have liberty to put this order into execution.

Let a plain copy of this order be supplied to both the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                                          President