Author. SHRI RABIDEB MUKHOPADHYAY

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

            The Complainant’s case in short is that his grandfather, namely Upendra Nath Tarafdar was the actual recorded owner of the land measuring about 4 cottahs 11 chittaks 00 Sq. ft. more or less together with structure standing thereon comprised of and contained in Mouza Kustia, J.L.No.14 Khatian No. 173, C.S. Dag No.307 and 317, Division –V,. Sub Division= N. Holding No.822 and 83 within the limits of Kolkata Municipal Corporation, being premises No. 104 Picnic Garden Road, PS . Tiljala, Kolkata – 700 039a, District . South 24 Parganas, Assesse No. 21-066-14-0095-0 Ward No. 66, which is subject matter of this case and more fully described as the scheduled property of the instant case.

            Sri Upendra Nath Tarafdar and his son Sri Paresh Nath Tarafdar both died and intestate on 10.08.2941 and 15.10.1977 respectively and leaving behind  a) Rani Bala Tarafdar, w/o Paresh Nath Tarafdar, b) Ashok Tarafdar & c) Jagonnath Tarafdar, two sons and d) Anima Tarafdar, e) Mira Saha (Tarafdar) f) Krishna Das (Tarafdar), three daughters, who are the legal heirs and they became the legal owners of the said property of deceased Paresh Nath Tarafdar and they are owners of the said premises. A development agreement was made between the Complainants along with his brothers and sisters and the OP dated 22.10.2009 regarding the development of Landed Property and also constructed the multi storied building, situated at the premises No. 104, Picnic Garden Road, PS . Tiljala, Kolkata – 700 039. After agreement the owner handed over the physical possession of the landed property to the OP and OP shall construct a two separate Multi Storied Building (G+3)with one common wall upon the schedule property in an allocation  ratio of 50 . 50 and shall provide one storied building(G+3) out of two in the back side of the said premises with full complete to the owners free of cost as per specification mentioned in the  Agreement and also the Developer also mentioned in the agreement that a sum of Rs.25,00,000/- only as adjustable amount  will be paid according to second schedule of the agreement but the Developer only paid Rs.15,00,000/- and the balance Rs.10,00,000/- is not paid till today, even the Developer did not  hand over the owner’s allocation portion to the owners within 24 months from the date of signing of final agreement of  development and intentionally sold out the flat of the owners allocation portion to the third party. The Complainants several times meet with the OP and as per agreement requested not to transfer more than 50 percent of the constructed area of the said building. But the OP did not pay any heed to the request of the Complainantand being compelled informed the matter to the local PS through written complaint on09.12.2017 but in vain. The OP forcefully and unlawfully deprived the Complainants from their legal right to fulfil their malafide intention. The OP has violated the condition of the development agreement dated 22.10.2009 and also curtailed the right of Complainants as a Consumer and intentionally neglected to provide service as well as committed the deficiency of service.

            The Complainants pray before the Hon’ble Forum to direct the OP not to transfer the construction area of the multi storied building more than 50 percent to the third party mentioned in the schedule and also to pay the balance Rs.10, 00,000/-, to hand over the storied building(G+3) in the back side of the said premises with full complete condition, to direct to pay Rs.2,00,000/- for compensation and Rs.20,000/- for litigation cost.

Point for discussion

1) Whether the complainant isa consumer under the OP;

2) Whether the OPis deficient in rendering service to the complainant;

3) Whether the complainant deserves relief.

Decision with Reasons

            1) Though the case runs exparte against the Opposite party, Md. Ariful Islam, we perused the documents filed by the complainant, Shri Jagonnath Tarafdar including the complainant Evidence on Affidavit, copy of the Agreement dated 22 October 2009, death certificate of RaniBala Tarafdar and Ashok Tarafdar copy of complainant with Police, Power of attorney in favour of Shri Jagonnath Tarafdar, etc.

            2) From the Agreement dated 22/10/2009 it appears that the same has been signed by all the six owners and the developer M/s Star Group represented by the Proprietor Ariful Islam. Before the date of the lodging this complaint petition Ashok Tarafdar and Rani Bala Tarafdar had died. So the actual ownership was vested with Jagonnath Tarafdar, Anima Tarafdar, Mira Saha (Tarafdar) and   Krishna Das (Tarafdar).

            3) The complainant stated at complainant petition para 3 that the complainant and his three daughters are legal heirs and legal owners of the set property. At Examination In chief with Affidavit sworn in by the complainant also states at Para 4 that apart from the complainant himself, is three daughters namely Anima Tarafdar, Mira Saha (Tarafdar) and   Krishna Das (Tarafdar) are also legal heirs and legal owners of the said property which have been given to the opposite party for development. Even at Para 6 of Examination In chief with Affidavit sworn in by the complainant stated that power of attorney was registered by and between the complainant and his sisters and the opposite party/developer before the district sub-registrar – iii, Alipore, South 24 Parganas vide book NO. Volume No.2 Pages from 2069-2080, deed No. 006728 dated 03/11/2009 between the complainant and his three sisters, his departed parents and the opposite party.

4) It is, therefore, clear that the 50  percent of the developed and constructed building (G+3) and the total money Rs. 25 lakh should be shared equally by the complainant and remaining three sisters. But the sisters did not sign the instant consumer complaint nor did they authorise the complainant to represent their case before this Forum. There is no averment in the complaint petition in this regard as well.

So the Complaint suffers seriously from non-joinder of necessary parties.

            5) Moreover, it appears from the records filed by the complainant that a power of attorney on a mere 10 Rupee stamp has been executed by the three sisters of the complainant on 13 December 2017, which is accepted under signature by the complainant . This power of attorney was not registered (as was done while executing the power of attorney in favour of the developer by the complainant and his Parent and sisters, as detailed at Para 3 of our analysis above). So, this power of attorney has no legal force. More so there is no mention of authorizing the complainant particularly to lodge consumer complaint on behalf of the three sisters. Since the matter relax to transfer of property from the three sisters to the complaint, we cannot accept the same as this could bring legal complications.

            6) In all this counts the complaint is not maintainable in this Forum because, as already stated the complainant has neither legal authority to act on the property of his three sisters as well as his not authorized to lodge this present complain before this Forum on behalf of his sisters. In the circumstances, we are constrained to pass 

ORDER

            That the complaint be and the same is dismissed for non-joinder of parties as detailed above on the basis of documentary evidence filed by the complainant.

            The complainant may seek relief against the OP at the appropriate Forum/Court and under proper procedure subject to limitation and other legal formalities.

            Let copy of the judgement be handed over to the complainant when applied for