Order No. 11 dt. 30/09/2019
The case of the complainant in brief is that the complainant entered into an agreement with o.p. no.1 for purchasing a shop room measuring about 230 sq.ft. and a car parking space measuring about 136 sq.ft. more or less on the ground floor of the building at premises no.131 A, Sreerampur East, P.S. Jadavpur at a total consideration price of Rs.12,60,000/-. The shop room and car parking space were offered to the complainant from the developer’s allocation. The complainant as per the agreement paid the amount phase by phase and in spite of payment of the said amount o.ps. have not executed and registered the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant, for which the complainant filed this case praying for direction upon the o.ps. to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant as well as to pay compensation and litigation cost.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. In the w/v the o.p. no.1 stated that o.p. no.2 is the absolute owner of the land situated at premises no. 131A, Sreerampur East, P.S. Jadavpur. The o.p. no.2 being the owner of the said premises entered into a development agreement with o.p. no.1 and one agreement for sale was executed on 13.8.07 between the complainant and o.ps. in respect of a shop room and a car parking space at a total consideration price of Rs.12,60,000/-. The complainant paid the entire consideration price of Rs.12,60,000/- and on 11.6.18 possession letter has been provided to the complainant and o.p. no.1 is ready to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant. But due to cancellation of the power of attorney by the o.p. no.2, the o.p. no.1 could not execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant. In view of such materials on record o.p. no.1 categorically stated that he will abide by the decision that will be passed by this Forum.
In the w/v the o.p. no.2 stated that the complainant entered into the agreement for sale in respect of the shop room and car parking space from the developer’s allocation and he made payment to the developer i.e. o.p. no.1 and o.p. no.2 executed a general power of attorney in favour of o.p. no.1 and o.p. no.2 has authorized o.p. no.1 to act on his behalf in terms of the development agreement. On the basis of such document the developer can execute and register the deed of sale in favour of the complainant since the property mentioned in the said agreement for sale relating to developer’s allocation. Therefore, o.p. no.2 cannot be held liable for any compensation or litigation cost.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant entered into an agreement with o.p. no.1?
- Whether o.ps. failed and neglected to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant entered into an agreement with o.p. no.1 for purchasing a shop room measuring about 230 sq.ft. and a car parking space measuring about 136 sq.ft. more or less on the ground floor of the building at premises no.131 A, Sreerampur East, P.S. Jadavpur at a total consideration price of Rs.12,60,000/-. The shop room and car parking space was offered to the complainant from the developer’s allocation. The complainant as per the agreement paid the amount phase by phase and in spite of payment of the said amount o.ps. have not executed and registered the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant, for which the complainant filed this case praying for direction upon the o.ps. to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant as well as to pay compensation and litigation cost.
Ld. lawyer for the o.p. no.1 argued that o.p. no.2 is the absolute owner of the land situated at premises no. 131A, Sreerampur East, P.S. Jadavpur. The o.p. no.2 being the owner of the said premises entered into a development agreement with o.p. no.1 and one agreement for sale was executed on 13.8.07 between the complainant and o.ps. in respect of a shop room and a car parking space at a total consideration price of Rs.12,60,000/-. The complainant paid the entire consideration price of Rs.12,60,000/- and on 11.6.18 possession letter has been provided to the complainant and o.p. no.1 is ready to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant. But due to cancellation of the power of attorney by the o.p. no.2, the o.p. no.1 could not execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant. In view of such materials on record o.p. no.1 categorically stated that he will abide by the decision that will be passed by this Forum.
Ld. lawyer for the o.p. no.2 argued that the complainant entered into the agreement for sale in respect of the shop room and car parking space from the developer’s allocation and he made payment to the developer i.e. o.p. no.1 and o.p. no.2 executed a general power of attorney in favour of o.p. no.1 and o.p. no.2 has authorized o.p. no.1 to act on his behalf in terms of the development agreement. On the basis of such document the developer can execute and register the deed of sale in favour of the complainant since the property mentioned in the said agreement for sale relating to developer’s allocation. Therefore, o.p. no.2 cannot be held liable for any compensation or litigation cost.
Considering the submissions of the respective parties it is an admitted fact that the complainant entered into an agreement with o.p. no.1 on 13.8.07 for purchasing a shop room and a car parking space and there was a development agreement that took place between o.p. nos.1 and 2. On the basis of the said agreement the complainant entered into an agreement with o.p. no.1, since o.p. no.1 agreed to sell the shop room and car parking space in favour of the complainant. It appears from the materials on record that o.p. no.1 has stated that since o.p. no.2 has cancelled the power of attorney, therefore he is not in a position to execute and register the sale deed in favour of the complainant, though he has given possession of the said shop room and car parking space. The o.p. no.1 has categorically stated that a possession letter has been given to the complainant. The complainant has not denied that he did not receive any possession letter from o.p. no.1. It is found from the materials on record that o.p. no.1 gave possession letter to the complainant after receiving entire consideration price of Rs.12,60,000/-. The complainant has claimed that the property in question has not been executed and registered by o.ps. The o.p. no.2 stated that he entered into a development agreement with o.p. no.1 and he also stated that the power of attorney was executed by him in favour of o.p. no.1. The o.p. no.1 has categorically stated that the power of attorney has been cancelled by o.p. no.2. Since the power of attorney is no more in existence and o.p. no.1 has agreed to execute and register the sale deed and he has agreed to put his signature on the deed of conveyance as confirming party, but o.p. no.2 being the land owner must execute and register the deed of conveyance in favour of the complainant. The o.p. no.2 has not filed any document to show that he has not cancelled the power of attorney in favour of o.p. no.1. In order to avoid the payment of compensation o.p. no.2 has stated that the power of attorney is still in force and he has refused to execute and register the deed of sale in favour of the complainant since the property in question to be executed and registered in favour of the complainant from the share of the developer’s allocation. Since there is a dispute between o.p. nos.1 and 2 and the complainant has paid the entire consideration price and in absence of any execution and registration of deed of conveyance by o.p. no.2 the absolute right of the property cannot accrue to the complainant. Therefore, we hold that both o.ps. must execute and register the deed of conveyance in favour of the complainant. It is relevant to mention here that the complainant purchased the stamp paper, but due to dispute between o.p. nos.1 and 2, the deed could not be executed and registered. As such, both o.ps. must execute and register the deed of conveyance. Accordingly, we hold that there is deficiency in service on the part of o.ps. and the complainant will be entitled to get compensation and litigation cost as well as a direction is to given to both o.ps. to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.34/2019 is allowed on contest with cost against the o.ps. The o.ps. are jointly and/or severally directed to execute and register the deed of conveyance in respect of the said shop room and car parking space in favour of the complainant along with pay compensation of Rs.20,000/- (Rupees twenty thousand) only to the complainant for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
