Order no.2 Date:14.03.2024
Ld. Advocate for the complainants is present.
The case is taken up for admission hearing.
It is the case of the complainants that opposite party no.1 is a partnership firm dealing business of development and construction of the buildings and properties and opposite party nos.2 to 4 are partners of opposite party no.1. The complainants in order to purchase a flat at premises no.5A/B, Chowringhee Lane, Kolkata – 700016 entered into an agreement for sale dated 27.12.1991 with the opposite parties for a total consideration amount of Rs.5,69,250/- (Rupees five lakhs sixty nine thousand two hundred fifty) only. The complainant paid a total sum of Rs.5,85,750/- (Rupees five lakhs eighty five thousand seven hundred fifty) only to the opposite parties against money receipts (Document ‘B’ series) but till date the opposite parties have not delivered the possession of the flat measuring about 1265 sq. ft. on the 5th floor Unit no.51 at premises no.5A/B, Chowringhee Lane, Kolkata – 700016 neither executed and registered the deed of sale in favour of the complainants. On 08.05.2000 on demand of the opposite parties the complainants paid further a sum of Rs.20,000/- (Rupees twenty thousand) only as cost of installation of transformer.
In spite of repeated demands till date the opposite parties have not complete the work of construction of premises no.5A/B, Chowringhee Lane, Kolkata – 700016 neither delivered the possession of the flat in favour of the complainants. Such act of the opposite parties tantamount to deficiency in service. The complainants have been compelled to file the case against the opposite parties on the prayer of delivering the possession of the Flat mentioned in the schedule of the complaint application and to execute and register the deed of sale in favour of the complainants, compensation and litigation cost.
The complainants have annexed the photocopy of agreement for sale dated 27.12.1991.
On careful scrutiny of the unregistered agreement for sale dated 27.12.1991, it appears that the opposite party no.1 have entered into this agreement with the complainants.
Page no.8, clause no. ‘B’ of the agreement for sale is as follows:
“B. By the Original Agreement the Developer had agreed to purchase from the Owner the Premises by itself and/or by its nominee or nominees on the terms and conditions as therein contained.”
From this clause it is crystal clear that the opposite party no.1 was not owner of premises no.5A/B, Chowringhee Lane, Kolkata – 700016 on the date of execution of the agreement for sale i.e. 27.12.1991. Nowhere in this agreement for sale the name of the owner of the said premises has been mentioned. That a part, we do not find any averment in the agreement for sale that the owner of the premises no.5A/B, Chowringhee Lane, Kolkata – 700016 has executed any registered power of attorney in favour of the opposite party no.1/developer empowering to develope any building or to sell, transfer or assign any flat to any third party.
It is apparent on the face of the agreement for sale dated 27.12.1991 that the opposite party no.1/developer has no locus standi to execute the agreement for sale in respect of premises no.5A/B, Chowringhee Lane, Kolkata – 700016 at the relevant point of time.
Therefore, this agreement cannot be enforceable in law.
Having considered the discussion made above we are of the opinion that the complainants cannot be treated as consumers in terms of the section 2(7) of the Consumer Protection Act, 2019 on the basis of an agreement for sale which has no legal value.
Therefore, the case is not maintainable in law and liable to be rejected.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed as not maintainable in law.
