Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant Ashim Kumar Dutta by filing this complaint has submitted that he was searching for purchasing a flat for accommodation for himself and his family for some year back and for that purpose he hired the service of the OP developer, Shri Dipak Chanda who was engaged in selling flats after developing the same and fact remains said developer OP constructed G+3 building on a 2 cottah of land by virtue of a Power of Attorney executed by the owner of the land Smt. Sankari Roy @ Santi Roy in favour of the developer, Sri Dipak Chanda and said land is of measuring 2 cottah with a house vide premises No.4R/1A, Lokenath Bose Garden Lane, Kolkata – 700 046 and fact remains the developer was constructing the new construction G+3 building after demolishing the old one.

          As per the General Power of Attorney, the OP Developer is entitled to sell flats of his allocation save and except the owner’s allocation and fact remains complainant approached the OP developer for a suitable flat and he offered him one flat on the   1^st floor on the south side of the road having area of 450 sq. ft. including 20% super built up area for a total consideration of Rs.11,00,000/- @2500/- per sq. ft.  and for that purpose complainant as per official contact and verbal assurance paid a sum of Rs.4 lakhs at the time of booking and as per agreement rest would be paid by instalments and accordingly, a sale agreement was executed on 05-05-2012 by and between complainant and OP developer and purchaser the second party and only sale deed was witnessed by Sri Harish Ch Singh and Sri Arpan Sarkar and Rs.4,00,000/- was paid by cheque dated 15-05-2012 by the complainant to the OP developer and only agreement to sale was executed after taking/booking Money and as per agreement and as per requirement of the developer complainant paid a total sum of Rs.7 lakhs as consideration money and it was agreed that flat would be handed over to the complainant within 6 months from the date of booking on 15-05-2012.

          Prior to the booking of the flat the same was booked by somebody else and in clear terms that previous agreement in between him and party had already been cancelled and undertook to handover previous booking agreement also to rescind and as cancelled document and in the said agreement of the complainant it is written in clear term that previous agreement is declared void and OP shall have to submit all such papers to the complainant. 

          Prior to execution of the sale agreement complainant explicitly made it clear to the OP developer that taking bank loan is imperative to pay the balance consideration money and in getting sanction of the loan the OP Developer is to cooperate and assist him in all possible manner and the OP developer promised to extend all necessary help and support for the same and he extended support to get loan from the Bank of India- Tangra Branch, Kolkata and for that complainant applied for a bank loan and all the necessary papers were submitted for the same but due to the non-registration of the Power of Attorney executed by and between the OP Developer and the landlady, the bank loan was not sanctioned.  It is further alleged that complainant spent Rs.10,000/- as LBS, Lawyer and other expenses for the loan but due to the non-registration of the Power of Attorney the bank loan was not sanctioned but anyhow complainant many times requested the OP for registering the flat after accepting the balance am ount but OP refused to execute it and did not respond.

          In the above situation complainant issued a letter to the OP developer on 23-07-2013 through speed post stating that the refund of Rs.7 lakhs and alleging his laches and deficiency on the part of the OP for non-execution of the registration of sale deed and OP developer instead of completing and registering the flat he has been trying to sell out the same to the third person and what is the habit and practice of the OP to make unlawful gain and to deceive the intended purchaser.

          Finding no response from the OP developer the complainant lodged written complaint before the   CA&FBP Department, Government of West Bengal for redressal on 13-08-2013 but the said office arranged tripartite mediating meeting on 26-09-2013 and then  another mediation meeting was convened on 03-10-2013 and in that meeting OP represented and admitted to redress the problems, but ultimately did nothing and for which the matter was dropped and the Assistant Director advised to lodge complaint before Forum for judicial redressal.  In fact, for the deficient and negligent manner of service of the OP and also for unfair trade practice of the Developer and all the cherished hope and expectation for a home of the complainant is frustrated and for the actions and inactions of the OP practically complainant’s all efforts are found futile and the OP developer did not come for giving any redressal to the complainant.  Further it is submitted that the actual covered area is measured as 367 sq ft and 20% Super Built UP area is admissible.  So, there is shortage of area also and all sorts of actions on the part of the OP tantamounts not only deficiency but also unfair trade practice and in the above circumstances complainant has prayed for directing the OP to execute the deed of conveyance and to deliver the possession of the property and in default for refund of the entire deposit amount with 20% interest and also compensation etc.

          In this case notices of the complaint was served upon the OPs on 11-12-2013 duly which is evident from the postal internet status report and it is found that Dipak Chada personally received the notice on 11-12-2013 but on 27-12-2013 the case was fixed for the appearance of the OPs.  OPs did not turn up but even then this Forum granted a chance for filing written version on 20-01-2014 and on 20-01-2014 also OP did not turn up and did not take any step, did not file any written version and OPs were found absent on repeated calls also and case was fixed for ex parte hearing on 06-02-2014 and on that date OP was found absent and evidence in chief was filed by the complainant as because OPs are found reluctant to take step so the case was heard finally and fixed for hearing argument on 19-02-2014 and on 19-02-2014 also OP is found absent on calls so argument was heard finally and accordingly we proceeded for preparation of judgment.

Decision with Reasons

No doubt in this case every chance was given to the OP from 27-12-2013 to 19-02-2015 to file written version or to power and to contest the case but OPs did not turn up but truth is that the entire copy of the complainant and documents relating to the complaint were sent to Dipak Chanda OP1 by registered post with A/D by speed post vide receipt No.EW540466063IN and EW231207270IN, both were received by Dipak Chanda on 11-12-2013 and 31-01-2014 but OPs did not turn up.  So, we must have to rely upon the documents and materials, evidence as produced by the complainant.  Fact remains complainant has alleged that complainant entered into an agreement for purchasing the said flat as described in the scheduled of the complaint and the agreement was executed on 14-05-2012 and fact remains complainant already paid Rs.7 lakhs out of total consideration of Rs.11 lakhs and from the receipt produced by the complainant it is clear that complainant already paid Rs.7 lakhs and Dipak Chanda personally as developer received it and there was a clause in the agreement that within 6 months from the date of execution of the agreement on 14-05-2012/15-05-2012 the flat should be handed over by the OP on receipt of balance amount of Rs.4 lakhs.  But peculiar factor is that, thereafter, OP did not pay any heed to that though complainant sent a letter on 23-07-2013 that was received by the OP but OP did not respond after that complainant reported that matter to Assistant Director, CA&FBP on 13-08-2013 that was taken up by the Deputy Assistant Director, CA&FBP.  Notice was served upon the OPs but thereafter, OPs appeared, mediation on two occasions held to resolve the case but OP did not cooperate so the said mediation also failed and ultimately complainant filed this complaint.

          It is also evident from the documents that complainant prayed for loan in respect of Rs.5 lakhs to pay the balance amount.  OP supplied all documents but Bank of India, Tangra Branch, considering the documents came to a conclusion that Power of Attorney is not registered so, bank loan was rejected.  So, complainant asked the OP to submit registered power of attorney executed by landowner in his favour that was also not filed so, in the above situation complainant was perplexed and for which the complainant asked the OP to refund the amount or to produce the registered Power of Attorney and to execute the sale deed after executing the balance but it is proved that OP from very inception deceive the complainant by entering into the agreement without any valid Power of Attorney and complainant was not aware of the position of law that Power of Attorney as shown by the complainant alleged to have been executed by the landowner was not valid in view of the fact it is not registered.  So, apparently, it is proved that OP tried to deceive the complainant and in such a manner he previously entered into an agreement in respect of the present flat with another person having an area covered 450 sq. ft. and 20% super built are of premises No.4R/1A, Loknath Bose Garden Lane, Kolkata – 700 046 and he was also deceived so he cancelled that agreement but that was suppressed by the OP at the time of entering into the present agreement.

          Further it is evident that by this agreement for want of registered Power of Attorney owner is not liable to do anything and another factor is that the present construction has not been completed in view of the fact that there is some problem in between the landowner and the present developer and the truth is that developer has no legal right to enter into an agreement with an intended purchaser for want of registered power of attorney executed by the landowner.  So, invariably complainant is entitled to get refund of the entire amount of Rs.7 lakhs from the OP developer Shri Dipak Chanda and truth is that this amount of Rs.7 lakhs was paid by the complainant with a hope to get the home but that hope is shattered for adopting an unfair trade practice by the developer Dipak Chanda and no doubt as per present agreement Dipak Chanda received Rs.7 lakhs as advance against booking of flat so that advance must be returned to the complainant by Dipak Chanda when OP1 received it and in the meantime the valuation of such a flat has been increased at a high rate and it must be about 35 lakhs but complainant is deceived by the OP1 Dipak Chanda for adopting unfair trade practice by him and for deceiving the complaint again in the eye of law the complainant is entitled to get back the said amount when it has been paid in the year 2012 so, in the meantime OP as developer has invested that amount and got profit by investing that amount but complainant has not got service from the OP so, complainant is entitled to get compensation over the said Rs.7 lakhs and also for being harassed by the OP and at the same time for losing a chance to get a flat.

          In the above situation complainant is entitled to get relief and redressal as prayed for against OP1 Dipak Kumar Chanda, the developer.  But no relief can be granted against OP2 the owner of the building on the ground landowner of the building did not execute any registered power of attorney in favour of Dipak Chanda,

          Thus, complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- (Rupees Ten thousand only) against OP1 Shri Dipak Kumar Chanda the developer, and the same is dismissed against Smt.Sankari Roy alias Santi Roy the landowner without any cost.

          OP1 is hereby directed to pay and refund a sum of Rs.7 lakhs to the complainant and for deceiving the complainant to get a flat and for adopting unfair trade practice and causing mental pain and agony and also for losing huge amount of interest over the said amount OP is further directed to pay a sum of Rs.4 lakhs as compensation to the complainant within one month from the date of this order.

          For adopting unfair trade practice by the OP1 again and again and for deceiving the intended purchaser in such a fashion and also to control such conduct of unfair trade practice and unmerchantable attitude OP1 is imposed a punitive damages of Rs.2 lakhs for adopting unfair trade practice and same shall be deposited to this Forum within one month.

          OP Shri Dipak Chanda the developer is hereby directed to comply the order very strictly within the stipulated period failing which for non-compliance of the Forum’s order a penal interest @Rs.500 per day shall be paid by the OP1 till full satisfaction of the decree and even if it is found that OP1 is reluctant to comply this order in that case a penal action shall be started against him and further penalty shall be imposed and he may be sent to jail as per provision of Section 27 of the C.P. Act, for repeated non-compliance of the Forum’s order.

Dictated & Corrected

      by me