West Bengal

South 24 Parganas

CC/182/2012

1. SMT. ANJU MONDAL, Wife of Late Ajit Mondal. - Complainant(s)

Versus

L.B.S. CONSTRUCTION. a Partnership Firm. - Opp.Party(s)

DR. SABYASACHI BASU.

11 Jan 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _182_ OF ___2012_

 

DATE OF FILING : 19.7.2012                     DATE OF PASSING JUDGEMENT:  11/01/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :    1. Smt. Anju Mondal, w/o late Ajit Kumar Mondal of 211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

                                                2.  Smt. Sarmila Mondal, d/o late Ajit Kumar Mondal of  211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

                                                3.   Sri Soumen Mondal, s/o late Ajit Kumar Mondal of 211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

                                              4.     Smt. Sharmistha Mallick,w/o Sri Mintu Mallick,d/o late Ajit Kumar Mondal of 211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

 

-VERSUS  -

 

O.P/O.Ps                            :  L.B.S Construction of 15/C, Sodepur Brick Field Road, P.O & P.S Haridevpur,  Kolkata – 82.

                                            1.     Azizur Rahaman,s/o Abdul Rahaman,5/C, Sodepur Brick Field Road, P.O & P.S Haridevpur,  Kolkata – 82.

                                            2.    Sri Surajit Karmakar,s/o Ajoy Kumar Karmakar of 91/8, M.G. Road, P.O & P.S Haridevpur,  Kolkata – 82.

                                           3.     Sri Subir Chowdhury,s/o Sudhir Chowdhury,151D, Santosh Roy Road, Kolkata – 8. Prop. Neeleshwary Construction

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Udayan Mukhopadhyay, President

At the outset we must have to refresh our memory by pointing out that the instant case was initially disposed of by my predecessor Bench allowing the same exparte against the O.Ps with cost of Rs.5000/- with a direction to the O.Ps to complete the owner’s allocation and hand over the same to the complainants within six months from the date of judgement and also to reimburse the arrear rent as well as compensation to the tune of Rs.1 lac and also impose interest @10% p.a but the Hon’ble State Commission after hearing M.s Nileswari Construction , Proprietorship Firm represented by its proprietor Sri Subir Chowdhury  in S.C case no. FA 897 of 2012 dispose of the same on 14.3.2014 with a direction that the instant appeal be sent back on remand with a liberty to the complainant to make the appellant as a party for effective adjudication with a further direction to this Forum to give opportunity to the complainants to make the present appellant as a party to the petition of complaint and thereafter adjudicate the case as expeditiously as possible in accordance with law, that is why the complainants made party the O.P-3 Subir Chowdhury who is the Proprietor of Nileswari Construction.

Be it mentioned here that O.P nos. 1 and 2 did not contest the case prior to the remand and surprisingly after remand these O.Ps woke up and filed written version on 7.1.2015 and added O.P Subir Chowdhury also filed  written version on the same date i.e. on 7.1.2015.

With that observation now we turn our eyes to the complaint case after remand wherein complainant has claimed that one Ajit Kumar Mondal , since deceased, got the said property by way of deed of settlement executed between he and his brother on 2.4.1977 and after death of Ajit Kumar Mondal on 19.1.1999 complainants inherited the property as owners of the same and started possessing the same. It has further stated that complainants approached the O.Ps for development of the A schedule Property and entered into a Development Agreement on 24.4.2006 which is annexed as Annexure A. It has further stated that as per development agreement complainants were supposed to get one flat each measuring 376 sq.ft having two bed room, one dining room, one verandah, kitchen and bath cum privy lying and situated at ground floor on the backside of the eastern portion from the O.Ps. It has further stated that in terms of the Development agreement the complainants were supposed to get Rs.1,25,000/- only from the O.P and they received Rs.5000/- only at the time of execution of the said agreement and O.Ps were agreed to pay Rs.50,000/- only to the complainant after getting sanctioned plan  and also agreed to pay Rs.70,000/- only to the complainants after selling the share of the developer . But the O.,Ps failed to pay any amount save and except Rs.70,000/- which was given at the time of execution and other subsequent deed of the development agreement. It has further claimed that in the said development agreement the O.P agreed to provide rent of the shifted accommodation of the complainant and that accommodation must be for two bed rooms and O.Ps were agreed to complete the construction of the said project within 40 months after getting sanctioned plan. It has further stated that after execution of the development agreement on 24.4.2006 the complainant shifted their accommodation to 91/C/13, Motilal Gupta Road , P.S. Haridevpur, Kolkata from the month of May, 2006 and handed over possession of the A schedule property to the O.Ps. But the O.Ps failed and neglected to pay the rent in terms of the development agreement. Rent receipts and tenancy agreement are annexed as annexure B. It has further stated that as per desire and instruction of the O.Ps the complainants also executed a registered Power of Attorney in favour of Subir Chowdhury ,son of Sudhir Chowdehury of 151D, Santosh Roy Road, Kolkata – 8 on 16.2.2009. It has further stated that as per Development Agreement dated 24.6.2006 the complainants performed all their duties and liabilities to honour the Agreement but the O.Ps intentionally from the very beginning deprived the complainants and firstly  failed to pay rent of the alternative accommodation of the complainants to the tune of Rs.2100/- per month to Rs.3000/- per month which was increased year to year. Accordingly complainant compelled to file legal notice to get his legitimate claim from the O.Ps and revoked the registered Power of Attorney given to Sri Subir Chowdhury by the instruction of O.P on 7.6.2011. It has claimed that complainants are consumes and O.Ps made deficiency in service by not giving the services for unfair trade practice. It has further claimed that although complainants revoked the power of attorney of O.P-3 but in the meantime complainants observed that project is almost completed after lapse of six years and complainants asked for possession but the caretaker did not allow them to enter the project. It has alleged that inspite of REVOCATION of power of attorney O.P-3 sold 4-5 flats by executing and registering the same and complainants came to know that without giving their possession and remaining cash amount ,several flats have been sold out and persons are taking their possession, finding no other alternative complainants took forceful possession of their allotted flats but at that time O.Ps were not present there and subsequently on the next date the O.P-3 with 22-25 unknown persons assembled in front of their flats and trying to dispossess them from their flats ,which they are alleged to be entitled to get. The same matter was informed to the local P.S. and after appearance of the police officer both the parties placed their documents in respect of their claim and the Police Officer directed the O.Ps not to create any disturbance of the possession of the complainants and in the meantime the Ld. District Forum passed decree in favour of the  complainants.  It has further stated that without complying the order passed by the Ld. Forum the O.P-3 preferred an appeal before the Hon’ble State Commission directing the complainant to add O.P-3 as party and that is why this case has been sent back on remand. Accordingly, complainant prays for direction to the O.P to complete the owners’ allocation and hand over to the complainant their possession within six months and payment of arrears rent of temporary accommodation since 2-007 to July 2012 amounting to Rs. 1,55,600/- and also payment of rent which has been due after filing of complaint till the handing over of the allocation in the meantime as well as compensation to the tune of Rs.1 lac and cost of Rs.10,000/-.

The O.P-2 after remand contested the case by filing written version and has denied all the allegations leveled against them. . It is the positive case of the O.Ps that these complainants by suppressing the material facts filed this case and this case is based on an agreement for development dated 24.4.2006 with these O.ps  and the said agreement was cancelled by the parties including the complainants by executing cancellation agreement dated 28/29.12.2006. It has claimed that complainants and all other parties of the said agreement has freely and voluntarily put their signatures in the said cancellation agreement and as such the prime factor of the complaint case is vague ,purported, ineffective and false one and obviously  and question of consideration of such terms and conditions of the said non-existing and cancelled agreement is completely beyond the scope of C.P Act, 1986. For example , in case of death of child cannot or does not stand up to urge his voice in any means whatsoever. It is interesting to point out that in para 12 it has been mentioned that the O.P-3 submits that the prime factor of the complaint case is nothing but the Development Agreement dated 24.12.2006 as made with the O.P nos. 1 and 2 herein , but the said agreement was cancelled by execution of another cancellation agreement dated 29.12.2006 which is made by the complainants with free will ,consent ,volition of the complainants. Thus, the complainants have no cause of action to file the instant case on the basis of the said invalid ineffective and cancelled agreement . Furthermore, the O.P-3 is not party of the said agreement, for which the case is failed for misjoinder of parties. Accordingly, O.P nos. 1 and 2 prays for dismissal of the case.

The  O.P-3 filed written version on 7.1.2015 and we find that the allegations leveled against him has been denied and in para 5(i) up to para 12 it is also reproduced the written version made by O.P nos. 1 and 2 and in para 5(ii) this O.P has claimed that after cancellation of the said agreement dated 24.3.2006 the complainants made further payment for development dated 11.2.2007 with M/s Dipak Construction for the purpose of development of their property and simultaneously they also executed power of attorney in favour of the said concerned namely M/s Dipak Construction but once again the said development agreement dated 11.2.2007 was also cancelled by execution of cancellation of Agreement dated 31.12.2008 and the said power of attorney was also cancelled by revocation of power of attorney dated 6.4.2009  . Thus it is crystal clea4r that the agreement dated 24.3.2006 and second agreement dated 11.2.2007 and other instruments as made by the complainant in favour of the O.P nos. 1 and 2 above named and other O.Ps have no effect in any manner whatsoever. It has claimed that this answering O.P is not a related party with the said development agreement dated 24.3.2006  and/or other development agreement dated 11.2.2007 with the complainants in respect of the said property in any manner whatsoever. It has claimed that the complainants deliberately suppressed that after execution of two agreements they made another development agreement on 31.12.2008 and on the same date they made power of attorney in favour of this O.P-3 Subir Chowdhury for the purpose of said project and as per the terms and conditions of the said development agreement complainants are entitled to get a flat measuring about 376 sq.ft on the western side back of the first floor of the said project and also entitled to get non-refundable amount of Rs.1,25,000/- only. It has claimed that this O.P is not a party of development agreement dated 24.3.2006 and after cancellation of the same on 31.12.2008 complainant and this O.P-3 and the other O.P nos. 1 and 2 are not the parties and naturally this suit must fail on the ground of non-joinder and mis-joinder of parties. It is the positive case of the O.P-3 that as per terms and conditions of the agreement dated 31.12.2008 with the O.P-3 the complainants have already got their allocated portion but in order to create pressure to fulfill their illogical demand from the said Subir Chowdhury they adopted a new game plan to file the instant complaint case on the basis of such false fabricated non-existing agreement dated 24.4.2006 which is beyond the scope of C.P.Act. It has claimed that the complainants have not come before this Forum with clean hand rather they deliberately and willfully suppressed the material facts before this Learned Forum. In fine, the positive case of the O.P-3 is that the Development Agreement dated 24.4.2006 made with the O.P nos. 1 and 2 has already been cancelled by execution of another cancellation agreement dated 29.4.2006 . So, the complainants have no cause of action to file the instant case on the basis of the ineffective and cancelled agreement . Furthermore, the O.P-3 is not a party in the said agreement, for which, the case must fail for mis-joiner of party. Hence the O.P-3 prays for dismissal of the case with heavy cost.

Points for decision is whether the O.Ps made any deficiency in service and unfair trade practice from time to time with the complainants by executing and cancelling the deed of agreement as well as power of attorney and ultimately complainants failed to get the usufructs of the property by the unfair activity purposely with each other O.Ps.

 

Decision with reasons

 

At the very outset it must be pointed out that the dispute as unfolded by the complainant is practically very very complicated question of Law which only can be decided by the Ld. Civil Court after taking elaborate evidence of the parties as well as hearing argument etc.

Be that as it may, when the Hon’ble State Commission remanded the case in FA 897 of 2012  to add party who is Subir Chowdhury ,Proprietor of Nileswari Construction, as O.P-3    and further direction to give opportunity to the complainant to make a party to the appellant and thereafter to adjudicate the case as expeditiously as possible in accordance with law ,that is why we are compelled to pass judgement on the basis of the materials on record in a summary trial.

It is interesting to point out that complainants have filed this complaint case  on the basis of the agreement for sale dated 24.4.2006 but after adding O.P-3 Subir Chowdhury of Nileswari Construction and after remand when all the cards have been placed before us, we find that the agreement dated 24.4.2006 which was made with O.P nos. 1 and 2 initially and obtained judgement from my predecessor Forum on 10.10.2012 ,although it was set aside by the Hon’ble State Commission on the prayer of the O.P-3, the complainant did not take any initiative to challenge the cancellation agreement dated 28/29.12.2006. We have perused all the  cancellation Deeds which are available in the record we find that all the deeds of cancellation are authenticated documents. Moreover, the complainants in the midst already made another agreement for sale with Dipak Mondal of M/s Dipak Construction but the said agreement was also cancelled by executing cancellation agreement on 31.12.2008 and power of attorney was also revoked on 6.4.2009 which are registered one.

So, at the first flash by suppressing the name of Nileswari Construction, the complainant were able to obtain a decree from my predecessor Forum in exparte but ultimately they did not get usufructs of the said decree since the same was set aside by the Hon’ble State Commission.

It is the case of the O.P-3 that all the agreements made by the complainants have no leg to stand and we have perused the said agreements along with the Power of Attorney etc. and we find that there is no reason to disbelieve all these acts and deeds of the complainant from time to time since complainants did not challenge the authentication of those deeds after receiving copy of the written version of O.P-3. This act of the complainants clearly suggest that the complainants are not coming to the Forum with clean hand and they have deliberately suppressed all these execution of agreements and cancellation of the same . It is interesting to point out that this complaint was initially filed on 19.7.2012 and the exparte judgdment was obtained on 10.10.2012 and on the basis of the said judgement complainants already got possession of their allotted flats as per complaint case and although complainants made another agreement with O.P-3 on 31.12.2008 of the same property which is before that judgement. So, we find there is no existence of previous agreement in the eye of Law because it was cancelled by the complainants themselves and they did not challenge anything before the Civil Court regarding the said cancellation . So, the previous agreement dated 24.3.20067 has no force after executing agreement dated 31.12.2008 with O.P-3 which is a registered agreement for sale wherein photographs of the complainants and the O.P-3 are appearing and the same was registered before the District Sub Registrar -2 ,South 24-Parganas and the said agreement was acted upon in the eye of law as and when deed of conveyance dated 6.11.2013 being Deed no.I08928 was executed by the complainants  and O.P-3 being an Attorney to the intending purchasers on the strength of Power of Attorney of the vendors on the strength of registered Power of Attorney dated 31.12.2008 . Not only thereafter but on 4^th July 2012 another agreement was executed wherein at page 4 it has been mentioned regarding agreement dated 12.12.2008and subsequent other deeds. So, the agreement dated 31,.12.2008 is stil in force and already acted upon in the eye of Law upon the complainants. So, complainants cannot and did not defy the same by claiming the agreement dated 24.3/4.2006 which has no force in the eye of Law.

It is also appearing that on the date of passing judgement by my predecessor Forum on 10.10.2012 , this O.P-3 already made agreement with the complainants and complainants have suppressed the same during pending of the case and thereafter Hon’ble State Commission remanded the case with a direction to add O.P-3 as party. So, at this stage we find that complainants did not take any initiative and did not take any attempt to clarify why they have cancelled the agreement for sale which was executed in the year 2006 and thereafter with Dipak Construction and also revoked the power of attorney from time to time and why the complainants suppressed the agreement dated 31.12.2008 as well as registered Power of Attorney dated 31.12.2008 with the O.P-3.

It is needless to point out that the Ld. Advocate of the complainants at the time of submission of BNA in the last at page no.15 although has claimed that the complainants did not put the signatures in the agreement for sale with the O.P no.3 but what prompted the complainants not to take any attempt to examine those signatures with the admitted signatures appearing in the agreement for sale in the year 2006 by an expert. So, mere submission in the BNA is not sufficient to prove that the signatures of the complainants in the agreement dated 31.12.2008 with O.p-3 is false and fabricated. It is also pertinent to point that that although in the middle portion of BNA page 14 complainants have claimed that O.P-3 Subir Chowdhury should come forward before the Forum in the first instance and can agitate all the facts but without doing so, he filed appeal. It may be mentioned here that it is the duty of the complainants to make him a party. On the contrary as and when O.P-3 came to learn that complainants obtained the order from the Hon’ble Forum ,then he challenged the said judgement before the Hon’ble State Commission only to add him a party on the strength of the agreement for sale dated 31.12.2008 . So, in all corners we did not find any irregularities in the matter of agreement for sale with the O.P-3 dated 31.12.2008 ,particularly when the previous agreement already cancelled and/or revoked. It is not the matter to look into that the what would be the terms and  conditions of the agreements with the developers and the owners. So, the argument advanced by the Ld. Sr. Advocate of the complainants that instead of 2 catta 12 chittak of land at Baridevpur/Sodepur on Motilal Gupta Road, complainants cannot claim only one small flat and Rs.1,25,000/- from O.P-3. We only confined ourselves with the documentary evidence. We are not aware in what circumstances complainants executed the said agreement with O.P-3 on 31.l2.2008.  So, that argument is an emotional argument having no leg to stand in the eye of Law ,particularly when the documents speak otherwise.

So, we cannot pass any order on the basis of the cancelled agreement executed in the year 2006 with O.P nos. 1 and 2. But we find that O.P-3 already paid Rs.70,000/- out of Rs.1,25,000/- and complainants will get remaining amount and complainants have admitted that they have already got possession forcibly and still possessing the same. So, question of further possession in the said project does not arise and the existing possession is hereby affirmed by this Forum.

Hence,

                                                Ordered

That the Application under section 12 of the C.P Act is allowed in part against O.P-3 only.

The O.P-3 is directed to pay the remaining amount of Rs.55,000/- along with interest to the tune of Rs.9% p.a from the date of this order till its realization.

The O.P-3 is further directed to pay cost of Rs.30,000/- and compensation to the tune of Rs.50,000/- to the complainant within 45 days from the date of this order ,failing which interest will carry @9% p.a after completion of 45 days till its realization.

The other prayers of the complainants are hereby refused as there is no liability of O.P nos. 1 and 2 because development agreement which has been made with them has already been cancelled and since complainants are already in possession  and further delivery of possession does not arise and the said possession is hereby affirmed legally. 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

           

Ordered

That the Application under section 12 of the C.P Act is allowed in part against O.P-3 only.

The O.P-3 is directed to pay the remaining amount of Rs.55,000/- along with interest to the tune of Rs.9% p.a from the date of this order till its realization.

The O.P-3 is further directed to pay cost of Rs.30,000/- and compensation to the tune of Rs.50,000/- to the complainant within 45 days from the date of this order ,failing which interest will carry @9% p.a after completion of 45 days till its realization.

The other prayers of the complainants are hereby refused as there is no liability of O.P nos. 1 and 2 because development agreement which has been made with them has already been cancelled and since complainants are already in possession  and further delivery of possession does not arise and the said possession is hereby affirmed legally. 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _182_ OF ___2012_

 

DATE OF FILING : 19.7.2012                     DATE OF PASSING JUDGEMENT:  11/01/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :    1. Smt. Anju Mondal, w/o late Ajit Kumar Mondal of 211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

                                                2.  Smt. Sarmila Mondal, d/o late Ajit Kumar Mondal of  211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

                                                3.   Sri Soumen Mondal, s/o late Ajit Kumar Mondal of 211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

                                              4.     Smt. Sharmistha Mallick,w/o Sri Mintu Mallick,d/o late Ajit Kumar Mondal of 211, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82 and at 91/C/13, Motilal Gupta Road, P.S. Haridevpur, Kolkata – 82.

 

-VERSUS  -

 

O.P/O.Ps                            :  L.B.S Construction of 15/C, Sodepur Brick Field Road, P.O & P.S Haridevpur,  Kolkata – 82.

                                            1.     Azizur Rahaman,s/o Abdul Rahaman,5/C, Sodepur Brick Field Road, P.O & P.S Haridevpur,  Kolkata – 82.

                                            2.    Sri Surajit Karmakar,s/o Ajoy Kumar Karmakar of 91/8, M.G. Road, P.O & P.S Haridevpur,  Kolkata – 82.

                                           3.     Sri Subir Chowdhury,s/o Sudhir Chowdhury,151D, Santosh Roy Road, Kolkata – 8. Prop. Neeleshwary Construction

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Udayan Mukhopadhyay, President

At the outset we must have to refresh our memory by pointing out that the instant case was initially disposed of by my predecessor Bench allowing the same exparte against the O.Ps with cost of Rs.5000/- with a direction to the O.Ps to complete the owner’s allocation and hand over the same to the complainants within six months from the date of judgement and also to reimburse the arrear rent as well as compensation to the tune of Rs.1 lac and also impose interest @10% p.a but the Hon’ble State Commission after hearing M.s Nileswari Construction , Proprietorship Firm represented by its proprietor Sri Subir Chowdhury  in S.C case no. FA 897 of 2012 dispose of the same on 14.3.2014 with a direction that the instant appeal be sent back on remand with a liberty to the complainant to make the appellant as a party for effective adjudication with a further direction to this Forum to give opportunity to the complainants to make the present appellant as a party to the petition of complaint and thereafter adjudicate the case as expeditiously as possible in accordance with law, that is why the complainants made party the O.P-3 Subir Chowdhury who is the Proprietor of Nileswari Construction.

Be it mentioned here that O.P nos. 1 and 2 did not contest the case prior to the remand and surprisingly after remand these O.Ps woke up and filed written version on 7.1.2015 and added O.P Subir Chowdhury also filed  written version on the same date i.e. on 7.1.2015.

With that observation now we turn our eyes to the complaint case after remand wherein complainant has claimed that one Ajit Kumar Mondal , since deceased, got the said property by way of deed of settlement executed between he and his brother on 2.4.1977 and after death of Ajit Kumar Mondal on 19.1.1999 complainants inherited the property as owners of the same and started possessing the same. It has further stated that complainants approached the O.Ps for development of the A schedule Property and entered into a Development Agreement on 24.4.2006 which is annexed as Annexure A. It has further stated that as per development agreement complainants were supposed to get one flat each measuring 376 sq.ft having two bed room, one dining room, one verandah, kitchen and bath cum privy lying and situated at ground floor on the backside of the eastern portion from the O.Ps. It has further stated that in terms of the Development agreement the complainants were supposed to get Rs.1,25,000/- only from the O.P and they received Rs.5000/- only at the time of execution of the said agreement and O.Ps were agreed to pay Rs.50,000/- only to the complainant after getting sanctioned plan  and also agreed to pay Rs.70,000/- only to the complainants after selling the share of the developer . But the O.,Ps failed to pay any amount save and except Rs.70,000/- which was given at the time of execution and other subsequent deed of the development agreement. It has further claimed that in the said development agreement the O.P agreed to provide rent of the shifted accommodation of the complainant and that accommodation must be for two bed rooms and O.Ps were agreed to complete the construction of the said project within 40 months after getting sanctioned plan. It has further stated that after execution of the development agreement on 24.4.2006 the complainant shifted their accommodation to 91/C/13, Motilal Gupta Road , P.S. Haridevpur, Kolkata from the month of May, 2006 and handed over possession of the A schedule property to the O.Ps. But the O.Ps failed and neglected to pay the rent in terms of the development agreement. Rent receipts and tenancy agreement are annexed as annexure B. It has further stated that as per desire and instruction of the O.Ps the complainants also executed a registered Power of Attorney in favour of Subir Chowdhury ,son of Sudhir Chowdehury of 151D, Santosh Roy Road, Kolkata – 8 on 16.2.2009. It has further stated that as per Development Agreement dated 24.6.2006 the complainants performed all their duties and liabilities to honour the Agreement but the O.Ps intentionally from the very beginning deprived the complainants and firstly  failed to pay rent of the alternative accommodation of the complainants to the tune of Rs.2100/- per month to Rs.3000/- per month which was increased year to year. Accordingly complainant compelled to file legal notice to get his legitimate claim from the O.Ps and revoked the registered Power of Attorney given to Sri Subir Chowdhury by the instruction of O.P on 7.6.2011. It has claimed that complainants are consumes and O.Ps made deficiency in service by not giving the services for unfair trade practice. It has further claimed that although complainants revoked the power of attorney of O.P-3 but in the meantime complainants observed that project is almost completed after lapse of six years and complainants asked for possession but the caretaker did not allow them to enter the project. It has alleged that inspite of REVOCATION of power of attorney O.P-3 sold 4-5 flats by executing and registering the same and complainants came to know that without giving their possession and remaining cash amount ,several flats have been sold out and persons are taking their possession, finding no other alternative complainants took forceful possession of their allotted flats but at that time O.Ps were not present there and subsequently on the next date the O.P-3 with 22-25 unknown persons assembled in front of their flats and trying to dispossess them from their flats ,which they are alleged to be entitled to get. The same matter was informed to the local P.S. and after appearance of the police officer both the parties placed their documents in respect of their claim and the Police Officer directed the O.Ps not to create any disturbance of the possession of the complainants and in the meantime the Ld. District Forum passed decree in favour of the  complainants.  It has further stated that without complying the order passed by the Ld. Forum the O.P-3 preferred an appeal before the Hon’ble State Commission directing the complainant to add O.P-3 as party and that is why this case has been sent back on remand. Accordingly, complainant prays for direction to the O.P to complete the owners’ allocation and hand over to the complainant their possession within six months and payment of arrears rent of temporary accommodation since 2-007 to July 2012 amounting to Rs. 1,55,600/- and also payment of rent which has been due after filing of complaint till the handing over of the allocation in the meantime as well as compensation to the tune of Rs.1 lac and cost of Rs.10,000/-.

The O.P-2 after remand contested the case by filing written version and has denied all the allegations leveled against them. . It is the positive case of the O.Ps that these complainants by suppressing the material facts filed this case and this case is based on an agreement for development dated 24.4.2006 with these O.ps  and the said agreement was cancelled by the parties including the complainants by executing cancellation agreement dated 28/29.12.2006. It has claimed that complainants and all other parties of the said agreement has freely and voluntarily put their signatures in the said cancellation agreement and as such the prime factor of the complaint case is vague ,purported, ineffective and false one and obviously  and question of consideration of such terms and conditions of the said non-existing and cancelled agreement is completely beyond the scope of C.P Act, 1986. For example , in case of death of child cannot or does not stand up to urge his voice in any means whatsoever. It is interesting to point out that in para 12 it has been mentioned that the O.P-3 submits that the prime factor of the complaint case is nothing but the Development Agreement dated 24.12.2006 as made with the O.P nos. 1 and 2 herein , but the said agreement was cancelled by execution of another cancellation agreement dated 29.12.2006 which is made by the complainants with free will ,consent ,volition of the complainants. Thus, the complainants have no cause of action to file the instant case on the basis of the said invalid ineffective and cancelled agreement . Furthermore, the O.P-3 is not party of the said agreement, for which the case is failed for misjoinder of parties. Accordingly, O.P nos. 1 and 2 prays for dismissal of the case.

The  O.P-3 filed written version on 7.1.2015 and we find that the allegations leveled against him has been denied and in para 5(i) up to para 12 it is also reproduced the written version made by O.P nos. 1 and 2 and in para 5(ii) this O.P has claimed that after cancellation of the said agreement dated 24.3.2006 the complainants made further payment for development dated 11.2.2007 with M/s Dipak Construction for the purpose of development of their property and simultaneously they also executed power of attorney in favour of the said concerned namely M/s Dipak Construction but once again the said development agreement dated 11.2.2007 was also cancelled by execution of cancellation of Agreement dated 31.12.2008 and the said power of attorney was also cancelled by revocation of power of attorney dated 6.4.2009  . Thus it is crystal clea4r that the agreement dated 24.3.2006 and second agreement dated 11.2.2007 and other instruments as made by the complainant in favour of the O.P nos. 1 and 2 above named and other O.Ps have no effect in any manner whatsoever. It has claimed that this answering O.P is not a related party with the said development agreement dated 24.3.2006  and/or other development agreement dated 11.2.2007 with the complainants in respect of the said property in any manner whatsoever. It has claimed that the complainants deliberately suppressed that after execution of two agreements they made another development agreement on 31.12.2008 and on the same date they made power of attorney in favour of this O.P-3 Subir Chowdhury for the purpose of said project and as per the terms and conditions of the said development agreement complainants are entitled to get a flat measuring about 376 sq.ft on the western side back of the first floor of the said project and also entitled to get non-refundable amount of Rs.1,25,000/- only. It has claimed that this O.P is not a party of development agreement dated 24.3.2006 and after cancellation of the same on 31.12.2008 complainant and this O.P-3 and the other O.P nos. 1 and 2 are not the parties and naturally this suit must fail on the ground of non-joinder and mis-joinder of parties. It is the positive case of the O.P-3 that as per terms and conditions of the agreement dated 31.12.2008 with the O.P-3 the complainants have already got their allocated portion but in order to create pressure to fulfill their illogical demand from the said Subir Chowdhury they adopted a new game plan to file the instant complaint case on the basis of such false fabricated non-existing agreement dated 24.4.2006 which is beyond the scope of C.P.Act. It has claimed that the complainants have not come before this Forum with clean hand rather they deliberately and willfully suppressed the material facts before this Learned Forum. In fine, the positive case of the O.P-3 is that the Development Agreement dated 24.4.2006 made with the O.P nos. 1 and 2 has already been cancelled by execution of another cancellation agreement dated 29.4.2006 . So, the complainants have no cause of action to file the instant case on the basis of the ineffective and cancelled agreement . Furthermore, the O.P-3 is not a party in the said agreement, for which, the case must fail for mis-joiner of party. Hence the O.P-3 prays for dismissal of the case with heavy cost.

Points for decision is whether the O.Ps made any deficiency in service and unfair trade practice from time to time with the complainants by executing and cancelling the deed of agreement as well as power of attorney and ultimately complainants failed to get the usufructs of the property by the unfair activity purposely with each other O.Ps.

 

Decision with reasons

 

At the very outset it must be pointed out that the dispute as unfolded by the complainant is practically very very complicated question of Law which only can be decided by the Ld. Civil Court after taking elaborate evidence of the parties as well as hearing argument etc.

Be that as it may, when the Hon’ble State Commission remanded the case in FA 897 of 2012  to add party who is Subir Chowdhury ,Proprietor of Nileswari Construction, as O.P-3    and further direction to give opportunity to the complainant to make a party to the appellant and thereafter to adjudicate the case as expeditiously as possible in accordance with law ,that is why we are compelled to pass judgement on the basis of the materials on record in a summary trial.

It is interesting to point out that complainants have filed this complaint case  on the basis of the agreement for sale dated 24.4.2006 but after adding O.P-3 Subir Chowdhury of Nileswari Construction and after remand when all the cards have been placed before us, we find that the agreement dated 24.4.2006 which was made with O.P nos. 1 and 2 initially and obtained judgement from my predecessor Forum on 10.10.2012 ,although it was set aside by the Hon’ble State Commission on the prayer of the O.P-3, the complainant did not take any initiative to challenge the cancellation agreement dated 28/29.12.2006. We have perused all the  cancellation Deeds which are available in the record we find that all the deeds of cancellation are authenticated documents. Moreover, the complainants in the midst already made another agreement for sale with Dipak Mondal of M/s Dipak Construction but the said agreement was also cancelled by executing cancellation agreement on 31.12.2008 and power of attorney was also revoked on 6.4.2009 which are registered one.

So, at the first flash by suppressing the name of Nileswari Construction, the complainant were able to obtain a decree from my predecessor Forum in exparte but ultimately they did not get usufructs of the said decree since the same was set aside by the Hon’ble State Commission.

It is the case of the O.P-3 that all the agreements made by the complainants have no leg to stand and we have perused the said agreements along with the Power of Attorney etc. and we find that there is no reason to disbelieve all these acts and deeds of the complainant from time to time since complainants did not challenge the authentication of those deeds after receiving copy of the written version of O.P-3. This act of the complainants clearly suggest that the complainants are not coming to the Forum with clean hand and they have deliberately suppressed all these execution of agreements and cancellation of the same . It is interesting to point out that this complaint was initially filed on 19.7.2012 and the exparte judgdment was obtained on 10.10.2012 and on the basis of the said judgement complainants already got possession of their allotted flats as per complaint case and although complainants made another agreement with O.P-3 on 31.12.2008 of the same property which is before that judgement. So, we find there is no existence of previous agreement in the eye of Law because it was cancelled by the complainants themselves and they did not challenge anything before the Civil Court regarding the said cancellation . So, the previous agreement dated 24.3.20067 has no force after executing agreement dated 31.12.2008 with O.P-3 which is a registered agreement for sale wherein photographs of the complainants and the O.P-3 are appearing and the same was registered before the District Sub Registrar -2 ,South 24-Parganas and the said agreement was acted upon in the eye of law as and when deed of conveyance dated 6.11.2013 being Deed no.I08928 was executed by the complainants  and O.P-3 being an Attorney to the intending purchasers on the strength of Power of Attorney of the vendors on the strength of registered Power of Attorney dated 31.12.2008 . Not only thereafter but on 4^th July 2012 another agreement was executed wherein at page 4 it has been mentioned regarding agreement dated 12.12.2008and subsequent other deeds. So, the agreement dated 31,.12.2008 is stil in force and already acted upon in the eye of Law upon the complainants. So, complainants cannot and did not defy the same by claiming the agreement dated 24.3/4.2006 which has no force in the eye of Law.

It is also appearing that on the date of passing judgement by my predecessor Forum on 10.10.2012 , this O.P-3 already made agreement with the complainants and complainants have suppressed the same during pending of the case and thereafter Hon’ble State Commission remanded the case with a direction to add O.P-3 as party. So, at this stage we find that complainants did not take any initiative and did not take any attempt to clarify why they have cancelled the agreement for sale which was executed in the year 2006 and thereafter with Dipak Construction and also revoked the power of attorney from time to time and why the complainants suppressed the agreement dated 31.12.2008 as well as registered Power of Attorney dated 31.12.2008 with the O.P-3.

It is needless to point out that the Ld. Advocate of the complainants at the time of submission of BNA in the last at page no.15 although has claimed that the complainants did not put the signatures in the agreement for sale with the O.P no.3 but what prompted the complainants not to take any attempt to examine those signatures with the admitted signatures appearing in the agreement for sale in the year 2006 by an expert. So, mere submission in the BNA is not sufficient to prove that the signatures of the complainants in the agreement dated 31.12.2008 with O.p-3 is false and fabricated. It is also pertinent to point that that although in the middle portion of BNA page 14 complainants have claimed that O.P-3 Subir Chowdhury should come forward before the Forum in the first instance and can agitate all the facts but without doing so, he filed appeal. It may be mentioned here that it is the duty of the complainants to make him a party. On the contrary as and when O.P-3 came to learn that complainants obtained the order from the Hon’ble Forum ,then he challenged the said judgement before the Hon’ble State Commission only to add him a party on the strength of the agreement for sale dated 31.12.2008 . So, in all corners we did not find any irregularities in the matter of agreement for sale with the O.P-3 dated 31.12.2008 ,particularly when the previous agreement already cancelled and/or revoked. It is not the matter to look into that the what would be the terms and  conditions of the agreements with the developers and the owners. So, the argument advanced by the Ld. Sr. Advocate of the complainants that instead of 2 catta 12 chittak of land at Baridevpur/Sodepur on Motilal Gupta Road, complainants cannot claim only one small flat and Rs.1,25,000/- from O.P-3. We only confined ourselves with the documentary evidence. We are not aware in what circumstances complainants executed the said agreement with O.P-3 on 31.l2.2008.  So, that argument is an emotional argument having no leg to stand in the eye of Law ,particularly when the documents speak otherwise.

So, we cannot pass any order on the basis of the cancelled agreement executed in the year 2006 with O.P nos. 1 and 2. But we find that O.P-3 already paid Rs.70,000/- out of Rs.1,25,000/- and complainants will get remaining amount and complainants have admitted that they have already got possession forcibly and still possessing the same. So, question of further possession in the said project does not arise and the existing possession is hereby affirmed by this Forum.

Hence,

                                                Ordered

That the Application under section 12 of the C.P Act is allowed in part against O.P-3 only.

The O.P-3 is directed to pay the remaining amount of Rs.55,000/- along with interest to the tune of Rs.9% p.a from the date of this order till its realization.

The O.P-3 is further directed to pay cost of Rs.30,000/- and compensation to the tune of Rs.50,000/- to the complainant within 45 days from the date of this order ,failing which interest will carry @9% p.a after completion of 45 days till its realization.

The other prayers of the complainants are hereby refused as there is no liability of O.P nos. 1 and 2 because development agreement which has been made with them has already been cancelled and since complainants are already in possession  and further delivery of possession does not arise and the said possession is hereby affirmed legally. 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President

 

Dictated and corrected by me

                               

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

           

Ordered

That the Application under section 12 of the C.P Act is allowed in part against O.P-3 only.

The O.P-3 is directed to pay the remaining amount of Rs.55,000/- along with interest to the tune of Rs.9% p.a from the date of this order till its realization.

The O.P-3 is further directed to pay cost of Rs.30,000/- and compensation to the tune of Rs.50,000/- to the complainant within 45 days from the date of this order ,failing which interest will carry @9% p.a after completion of 45 days till its realization.

The other prayers of the complainants are hereby refused as there is no liability of O.P nos. 1 and 2 because development agreement which has been made with them has already been cancelled and since complainants are already in possession  and further delivery of possession does not arise and the said possession is hereby affirmed legally. 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.

 

                                                Member                                                                       President