Date of filing : 19.5.2017

Judgment : Dt.20.12.2018

Mrs. Sashi Kala Basu, Hon’ble President.

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mr. Sanjib Banerjee alleging deficiency in service on the part of the opposite parties  namely (1) M/s Mallington Projects Private Limited, (2) Sri Indrajit Chatterjee, (3) Mr. Monojit Chatterjee and (4) Mr. Premijit Chatterjee.

            The case of the Complainant in short is that he entered into an agreement with OP No.1 to 4 on 23.7.2013 to purchase a self contained flat, measuring more or less 600 sq.ft. super built area to be erected or built on the South Eastern side of the fourth floor of the proposed building being Municipal Premises No.134, Sodepur 1^st Lane also known as postal premises No.25/2, Sodepur 1^st Line under Haridevpur P.S. formerly Thakurpur, together-with proportionate undivided impartiable share in land of the said premises at a total consideration of Rs.15,00,000/- payable in two installments. The Complainant paid Rs.3,00,000/- out of the said total consideration money and the balance of Rs.12,00,000/- was agreed to be paid on or before execution and registration of the said flat. But, in terms of the said agreement the OP No.1 who was under obligation to complete the said flat and handover the possession of the same within 16 months from the execution of the agreement, has not been handed over the possession of the flat. They have also not executed the deed of conveyance in respect of the said flat. Complainant made several representations to the OPs but it was intimated by the OP No.1 that OP No.2 to 4 being the owners have illegally revoked the power of attorney executed in his favour. Since neither possession of the flat nor the deed has been executed in favour of the Complainant, present complaint case has been filed by the Complainant for directing the OPs to hand over the possession of the flat and to execute and register the deed of conveyance after accepting the balance consideration money, to pay compensation of Rs.3,50,000/- and litigation cost of Rs.25,000/-.

            OP No.1 and OPs No.2 to 4 have contested the case by filing separate written version. It is contended by the OP No.1 that he was empowered through a power of attorney to erect and construct the building, but, subsequently, the said power of attorney was revoked by the OP Nos.2 to 4. Thus, he was unable to execute the deed of conveyance in favour of the Complainant. Against the said revocation of the power of attorney a civil suit is filed before the Court of Ld. Civil Judge (Senior Division) 7^th Court and the same is pending for disposal. It is further stated that he is and was ready and willing to execute the deed of conveyance. Thus he has prayed for disposal of the complaint.

            OP Nos.2 to 4 have contended in their written version that the alleged agreement between Complainant and the OP was executed behind the back of the land owners. A joint venture of agreement was executed between the OP, the developer and the land owners and subsequently general power of attorney was also executed and registered in favour of the developer. But, without handing over the land owners’ allocation, OP No.1 started giving possession to the intending purchasers. Thereby he failed to comply the terms as agreed in the joint venture agreement. So, due to inordinate delay and non-performance of the OP No.1 they were constrained to cancel, revoke the power of attorney. The OP Nos.2 to 4 have also thus prayed for dismissal of the complaint case with petition of complaint.

The Complainant has annexed agreement for sale and the copy of the money receipts showing payment of Rs.2,00,000/- and Rs.1,00,000/- respectively.

During the course of evidence both parties adduced evidence by filing affidavit-in-chief followed by filing of questionnaire and reply thereto.

            Point requires determination is : Whether the Complainant is entitled to the reliefs as prayed for?

            Decision with reasons

            In this case, so far as the execution of agreement for sale between the Complainant and the OP No.1 in respect of the flat being Municipal Premises No.134, Sodepur 1^st Lane also known as postal premises No.25/2, Sodepur 1^st Line under Haridevpur P.S. formerly Thakurpur, has not been disputed. It is also an admitted fact, as it appears from the written version filed by the OP No.1, that an amount of Rs.3,00,000/- has already been paid by the Complainant and regarding the balance amount of consideration was agreed to be paid on the date of execution of the deed of conveyance. This is also not in dispute that the possession of the flat as agreed has not been handed over and consequent to the same, deed of conveyance has also not been executed in favour of the Complainant.

            Only contention which has been raised by the OP No.1 is that due to revocation of power of attorney in his favour by OP No.2 to 4 the OP was unable to execute the deed of conveyance. It appears that there is a civil suit pending between the OP No.1 and the OP Nos.2 to 4 before a Civil Court. But in this context it may be pertinent to point out that it is a settled principle of law that dispute between the owners and the builders cannot deprive a bona fide buyer. It came for consideration before the Hon’ble National Commission in the case law reported in 2014 (3) CPR 91 (NC) (Smt. V. Kamala and Ors VS K. Rajiv and Ors) wherein it has been held that an inter se dispute between the owners and the builders, if any, cannot be permitted to be utilized as a ploy to wriggle out of obligations under the agreement and leave to buyer in a lurch. So, in view of the legal proposition in the said case law, Complainant is entitled to the possession of the flat as agreed and also execution and registration of the deed of conveyance. He is also entitled to the compensation keeping in view that he has to bear the cost of registration as per present market value. So, the compensation of Rs.50,000/- and litigation cost of Rs.10,000/- will be justified.

            Hence, it is ordered

            CC/282/2017 is allowed on contest. The OPs are directed to hand over the possession of the flat in the fourth floor in the building being Municipal Premises No.134, Sodepur 1^st Lane also known as postal premises No.25/2, Sodepur 1^st Line under Haridevpur P.S. formerly Thakurpur, and to execute and register the deed of conveyance after accepting the balance consideration money of Rs.12,00,000/-, in the name of the Complainant within three months from the date of this order. The OPs are further directed to pay Rs.50,000/- towards compensation and Rs.10,000/- towards litigation cost within the aforesaid period of three months.