Date of filing :12.7.2017

Judgment : Dt.10.4.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of   C.P.Act, 1986 by Bisanath Mahato, son of Late Madan Mahato, 2B, Chetla Road, P.O. & P.S.- New Alipore, Kolkata-700 053 alleging deficiency in service on the part of the opposite parties (1) Messers Mallington Project Private Limited, (2) Sri Indrajit Chatterjee, (3) Mr. Monojit Chatterjee and (4) Mr. Premijit Chatterjee.

            Case of the Complainant in brief is that being in search of a susitable flat at Haridevpur locality he approached the Director, Sri Raju Singh of the OP No.1 Pvt. Ltd. Company, who offered him to sell a flat in a new proposed building to be constructed at Municipal Premises No.134, Sodepur First Lane (Also known as postal premises No.25/2, Sodepur First Lane, P.S.-Haridevpur, Kolkata-700 082). It is stated by the Complainant that the OP No.1 is a company and the OP Nos.2 to 4 are owners of a piece of land measuring more or less 4 cottahs 15 chittak 30 sq.ft. lying and situated at Municipal Premises No.134, Sodepur First Lane (Also known as postal premises No.25/2, Sodepur First Lane, P.S.-Haridevpur, Kolkata-700 082) within the limits of KMC Ward No.122, Dist.-South 24 Parganas.

            The Complainant being satisfied with the same entered into an agreement for sale with the OP Nos.1 to 4 on 27.12.2012 in respect of a flat at second floor of the said premises along with a car parking space at a consideration of Rs.13,50,000/- payable in three installments out of which Rs.2,50,000/- is payable on or before execution of the agreement for sale as booking amount and thereafter Rs.1,00,000/- as part consideration. The Complainant has further stated that as per terms of the Agreement the OP No.1 under obligation to complete the said flat and handover the possession of the same within 24 months from its execution i.e. by 26.12.2014 but the same has not yet been handed over since construction of entire building is not yet completed due to alleged dispute between the parties. The Complainant has prayed for direction upon the OPs to handover the possession of the flat and to execute and register the Deed of Conveyance after accepting the balance amount of consideration of Rs.10,00,000/- to be paid by the Complainant, to complete the said building in all respect, to pay Rs.3,50,000/- towards compensation for causing inconvenience mental agony and harassment to the Complainant and to pay Rs.25,000/- towards cost of litigation.

            The Complainant has annexed copy of Agreement for Sale dt.27.12.2012.

            Notices were served upon the OPs. The OP No.1 has turned up and contested the case by filing written version. The OP Nos.2, 3 & 4 did not turn up and therefore the instant case has been proceeding against them ex-parte vide order No.4 dt.22.9.2017.

            In the written version, the OP No.1 denied and disputed all material allegations stating inter alia, that the Complainant entered into an agreement with the OPs on 27.12.2012 for purchasing a self contained flat on 2^nd floor measuring more or less 750 sq.ft. super built up area consisting of 3 bedrooms, 1 drawing cum dining space, 1 kitchen, two toilets and 1 verandah to be constructed on the north-eastern side of the 2^nd floor of a proposed building to be constructed car parking at Municipal premises No.134, Sodepur First Lane, P.S.-Haridevpur, formerly ‘Thakurpur’, Kolkata-700 082) together with the proportionate undivided impartiable share of land of the said premises at a total consideration of Rs.13,50,000/- which was payable in three installments out of which Rs.2,50,000/- was payable on or before of execution of agreement as booking money and/or advance and balance consideration of Rs.1,00,000/- would be paid on brick works of the flat and the car parking and balance amount of Rs.10,00,000/- on or before execution and registration of the said flat and on delivery of possession of the said flat and the car parking space. It is stated by the OP No.1 that the Complainant had paid a sum of Rs.2,50,000/- before  execution of the Agreement as booking money and thereafter Rs.1,00,000/- after commencement of brick work of the flat in question against issue of the receipt. The OP No.1 has further stated that as per joint venture agreement dt.14.10.2009 the owners were entitled to get 6 nos. of flat along with Rs.1,50,000/- as part payment by 26.11.2014 but the OP No.1 Developer failed to proceed with the work as required due to various problems like discrepancies between Title Deed and assessee roll book, soil condition of the land, interference of local goons etc. and had to take measures for correction of the same by paying requisites to the K.M.C. and demolishing already constructed base pillar, column, tri beam, excavating soil, filling sand and specifically reconstructing bathroom, kitchen, extra wardrobes on owners allocation as per direction of the land owners but before obtaining completion certificate from the KMC the owners illegally revoked the General power of attorney on 3.4.2014.

            It is further stated by the OPs that one of the land owners (OP No.4) Premjit Chatterjee entered into an Agreement for Sale on 15.10.2010 with the OP Developer in respect of his allocation portion and received consideration amount for the same and, therefore, according to the Complainant the said land owner has no right to represent himself before any Govt. Authority but he, in order to gain financially revoked the power of attorney and as such a Deed of cancellation dt.3.4.2014 was executed. The Complainant has specifically stated that such revocation of power of attorney has made the OP Developer unable to complete the construction. The OP Developer has expressed his willingness to execute the Deed of Conveyance after receiving balance consideration amount of Rs.10,00,000/- from the Complainant as Developer and also to complete the remaining work if this Forum directs him to do so and accordingly the OP Developer prays for dismissal of the instant consumer Complaint.

            The OP No.1 annexed Declaration dt.4.1.2010, General Power of Attorney dt.12.10.10, Agreement for Joint Venture dt.14.10.2009, letter dt.12.11.2009 issued by OP No.2 to OP No.1, Advocate’s letter dt.21.10.2013, Draft copy of Supplementary Agreement, Joint Compromise petition Agreement for sale dt.15.1.2010, Cancellation of General Power of Attorney dt.3.4.2014.

            Points for determination

1. Whether the Complainant is entitled to the relief as prayed for.

Decision with reasons

            Admitted position is that the Complainant entered into an agreement for sale on 27.12.2012 with the OP Developer in respect of a flat to be constructed by the OP Developer within a piece of land owned by OP Nos.2 to 4. It is also admitted that the agreed amount of consideration was fixed as 13,50,000/- and as per agreed mode of payment the Complainant has paid Rs.3,50,000/- to the OP Developer and as per agreed mode of payment the balance amount of consideration of Rs.10,00,000/- is payable at the time of execution of Deed of Conveyance. The Complainant has stated that he is ready and willing to pay the balance amount of consideration of Rs.10,00,000/- to the OP Developer and to get the flat in question get registered in favour of him.

            The OP Developer has also expressed that he is willing to execute the Deed of Conveyance in favour of the Complainant after receiving the balance amount of Rs.10,00,000/- but sudden revoke of Power of Attorney by landowner put hindrance on part of the OP to complete the construction which he undertook to complete.

            As per provision of Section 202 of Indian Contract Act, the land owner’s cannot, in absence of an express contract terminate to the prejudice of the interest of the Developer, which has already accrued in respect of the said property.

            Moreover, intersay dispute between the land owners and the Developer cannot prevent the Complainant/purchaser to exercise his legitimate right in respect of purchasing the property.

            Under such state of affairs, mentioned hereinabove the prayer made by the Complainant is partly allowed.

            In the result, the Consumer Complaint succeeds in part.

            Hence,

ordered

            that CC/382/2017 and the same is allowed on contest against OP No.1 and ex-parte against OP Nos.2 to 4.

            The OP No.1 is directed to complete the construction and hand over the possession of the said flat to the Complainant within four months after receiving the balance consideration amount of Rs.10,00,000/-.

            The OPs are further directed to execute and register the Deed of Conveyance in favour of the Complainant within two months from the date of delivery of possession of the flat in question.