DATE OF FILING : 04-01-2013. DATE OF S/R : 19-02-2013. DATE OF FINAL ORDER : 15-07-2013. 1. Sri Netai Halder, son of Sri Tapan Halder, resident of village & P.O. Chupi, P.S. Purbasthali, District – Burdwan, 2. Sri Sanjay Shaw, 3. Sri Ranjit Shaw, both sons of Sri Sambhu Shaw, both resident of 20, Dr. P.N. Ghosh Road, P.O. & P.S . Bally, District – Howrah, Pin - 711 201. 4. Sri Alak Kumar Bhunia, son of late Abinash Bhunia, 5. Smt. Kajal Rani Bhunia, wife of Sri Alak Kumar Bhunia, both resident of 23, Dingsaipara Road, P.S. Bally, District – Howrah, PIN – 711 201. ---------------------------------------------------- COMPLAINANTS. - Versus - 1. Lokenath Construction, a proprietorship firm having its office at Apartment Janani ( 2 ), 30, P.K. Ganguly Road, Bally, Howrah – 711201 being represented by ( a ) Smt. Tara Bala Bhowmick, of 69/3, Dwan Gagi Road, P.O. ;& P.S. Bally, District – Howrah, PIN – 711 201. ( b ) Smt. Maya Saha, of 4/91, M.L. B. Road, P.O. & P.S. Bally, District – Howrah, PIN – 711 201. ( c ) Smt. Chabi Dutta, wife of Sri Mantu Dutta, of 11/6, M.L.B. Road, within P.O. & P.S. Bally, District – Howrah, PIN – 711 201. ( d ) Sri Biswanath Saha, son of Brojendra Nath Saha, of 4/91, M.L.B. Road, District – Howrah, PIN – 711 201. ( e ) Sri Sibnath Saha, son of Brojendra Nath Saha, of 4/91, M.L.B. Road, P.O. & P.S. Bally, District – Howrah, PIN – 711 201. all being the legal heirs and beneficiary of late Bholanath Saha, son of late Bojendra lal Saha, the erstwhile sole proprietor of the aforesaid firm. ( 2 ) Smt. Manubala Das, widow of late Ratan Das, of 22/9, Padma Babu Road, P.O. & P.S. Bally, Howrah, PIN – 711 201. ( 3 ) Sri Bulu Das, son of late Ratan Das, of 8, Panchantola Road, P.O. & P.S. Bally, Howrah, PIN – 711 201. ( 4 ) Sri Sanat Das, son of late Ratan Das, of 4/1, Manomohon Mukherjee Road, P.O. & P.S. Bally, Howrah, District – Howrah, PIN – 711 201. ( 5 ) Sri Swapan Das, son of late Ratan Das, of 22/9, Padma Babu Road, P.O. & P.S. Bally, District – Howrah, PIN – 711 201. ( 6 ) Smt. Sandhya Adak, wife of Sri Kesto Charan Adak, d/o. late Ratan Das, of 12, Padma Babu Road, P.O. & P.S. Bally, Howrah, PIN – 711 201. ( 7 ) Sri Tapan Kanti Dey, son of late Surobandhu Dey, of 57/23, Dewangazi Road, P.O. & P.S. Bally, District – Howrah, PIN – 711 201.---------------------------------------------OPPOSITE PARTIES. P R E S E N T President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS. Member : Shri P.K. Chatterjee. Member : Smt. Jhumki Saha. F I N A L O R D E R 1. The instant case was filed by complainants U/S 12 of the C.P. Act, 1986 wherein the complainants have prayed for direction upon the o.ps. to execute and register deed of conveyance in respect of the suit properties as described in Schedues A, B & C and for compensation of Rs. 3 lakhs together with litigation costs as the O.Ps. failed to execute the deed in spite of repeated requests. Put briefly the case of the complainants stands as follows : 2. Bhola Nath Saha who died intestate on 12-10-2011 leaving behind him, his brothers and sisters, the O.P. nos. 1(a) to 1(e), during his life time entered into three sets of agreements with the complainants for self-contained flat as mentioned in Schedule A, B, C. He entered into the 1st agreement for sale with the complainant no. 1 on 10-11-2010 with respect to ‘A’ schedule property at a consideration of Rs. 7,70,000/- out of which Rs. 2,50,000/- was paid towards earnest money. The said Bhola Nath Saha, the proprietor of Loknath Construction entered into further agreement with complainant nos. 2 & 3 on 08-03-2011 with respect to ‘B’ schedule property for a total consideration of Rs. 4,14,000/- out of which he received Rs. 2,85,000/- towards earnest money. He further entered into an agreement with complainant nos. 4 & 5 with respect to ‘C’ schedule property on 28-03-2011 for a total consideration of Rs. 4,60,000/- out of which he received Rs. 2 lakhs. As the legal heirs of Bhola Nath Saha are not at all willing to execute the sale deeds with respect to the above noted schedule properties the instant complaint has been filed. 3. The o.p. nos. 2 to 6 in the written version dated 19-02-2013 contended interalia that the complaint is not maintainable ; that Bhola Nath Saha was not entrusted to execute any document for sale of flats ; that there is no negligence on the part of the O.Ps. 4. The O.P. nos. 1(a), 1(b), 1(c) in their written version dated 3rd April, 2013 denied the material allegations made in the complaint and contended interalia that they are not liable for any activity of late Bhola Nath Saha as they did not receive any amount of money from the complainants ; that the complainants are not bonafide consumers ; that this is a harassing complaint to harass the O.Ps. 3. Upon pleadings of both parties two points arose for determination : i) Is there any deficiency in service on the part of the O.Ps. ? ii) Whether the complainants are entitled to get any relief as prayed for ? DECISION WITH REASONS : 4. Both the points are taken up together for consideration. There cannot by any dispute that Bhola Nath Saha since deceased, the proprietor of Loknath Construction entered into an agreement with the complainants with respect to the A, B, C schedule properties on different dates i.e., 10-11-2010, 08-03-2011 and 28-03-2011. There is no denying the fact that the O.P. nos. 1(a) to 1(e) are the legal heirs of Bhola Nath Saha who died intestate on 12-10-2011. The money receipts reflect that Bhola Nath Saha received the earnest money from the complainants on different dates. In fact the O.Ps. being the agent of Bhola Nath Saha cannot have any respite from the rigours of law in view of Sections 182 to 189 of the Indian Contract Act. Sections 196 to 200 of the said Act deals with ratification. It appears from the contents on the power of attorney that there is an expressed clause of ratification of the Agents Act. Section 188 of the Indian Contract Act specifically states that an agent, having an authority to do an act, has authority to do every lawful thing which is necessary in order to validate such act. Section 187 of the said Act also states that an authority is said to be expressed when it is given by the words spoken or written. Clause no. 3.8 at page 11 of the development agreement dated 07-12-2009 executed between the opposite parties no. 2 to 6 and the O.P. no. 1 followed by a general power of attorney dated 07-12-2009 implies that the principal is always liable for the Act done by the agent within his lawful jurisdiction. So it is primary duty of the principal namely the O.P. nos. 2 to 6 to fulfill the obligations on the part of Bhola Nath Saha, since deceased, as per provision of Sections 226, 230 and 232 of the Indian Contract Act. 5. We are further of the view that the O.Ps. cannot escape from the rigours of law in view of the decision reported in 2008(3) WBLR (CPSC) 174. It is immaterial if the agreement is on the stamp paper of Rs. 10/-. They are required to pay the stamp duty at the time of execution of the sale deed. Both the points are accordingly disposed of. In the result, the complaint succeeds. Hence, O R D E R E D That the C. C. Case No. 3 of 201 ( HDF 3 of 2013 ) be and the same is allowed on contest with costs against the O.P. nos. 2 to 6 and 1(a), 1(b), 1(c) and ex parte with costs against the rest namely O.P. no. 1, 1(d) and 1(e ). The O.Ps. be directed to execute and register the sale deed in favour of the complainants with respect to A, B & C schedule property after receiving the balance amount within 30 days from the date of this order The O.Ps. be further directed to pay a sum of Rs. 1,00,000/- jointly and severally to the complainants within 30 days from the date of this order for causing prolonged harassment. The complainants are also entitled to a litigation cost of Rs. 5,000/- from the O.Ps. The complainants are at liberty to put the decree into execution after expiry of the appeal period. Supply the copies of the order to the parties, as per rule. DICTATED & CORRECTED BY ME. ( T.K. Bhattacharya ) ( T.K. Bhattacharya ) President, C.D.R.F.,Howrah. President, C.D.R.F.,Howrah. ( P. K. Chatterjee ) Member, C.D.R.F.,Howrah. |
