Dt. of filing – 11/01/2018
Dt. of Judgement – 30/01/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Mr. Ramendra Nath Pattanayek under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) Mr. Kamal Das and 2) Mr. Sahajan Mondal alleging deficiency in rendering services on their part.
Complainant’s case in brief is that he purchased a self contained residential flat on the first floor at the south-eastern side measuring 680 sq ft in four storied building to be constructed by the OP No.2/developer on the land measuring about 1 Cottah 21.5 sq ft situated at KMC premises no.825, Purbachal Road within P.S. Garfa, Kolkata-700078, at consideration price of Rs.14,00,000/- from the developer’s allotted portion in the building. OP No.1 being the owner of the said land had entered into a development agreement with OP No.2. Complainant paid the entire amount of consideration and accordingly the Deed of Conveyance has been executed in favour of the Complainant on 30/11/2017 and was registered on 4/12/2017. Despite execution and the registration of Deed of Conveyance of the said flat, possession has not been delivered to the Complainant by the Opposite Parties for the reason best known to them. Complainant has requested the Opposite Parties to deliver the physical possession of the said flat mentioned in the schedule repeatedly but all in vein. Ultimately a legal notice has already been sent by the Complainant through his Ld. Advocate on 4/1/2018 but OPs paid no heed. Complainant is residing at a rental accommodation by paying monthly rent of Rs.10,000/- and so being compelled, present complaint case is filed by the Complainant praying for directing the Opposite Parties to deliver the physical possession of the said flat in favour of the Complainant, to pay Rs.10,000/- per month by way of reimbursement of rental amount since 4/12/2017 to till the date of delivery of the possession of the schedule flat, to pay sum of Rs.3,00,000/- as compensation and Rs.50,000/- towards the litigation cost.
Complainant has annexed with the complaint petition, copy of the Deed of Conveyance dated 30/11/2017 and copy of the notice dated 4/1/2018 sent by the Complainant to the Opposite Parties through his Ld. Advocate.
Case has been contested by OP No.1 by filing written version denying the material allegation made in the complaint petition stating inter alia that on the date of alleged execution of Deed of Conveyance on 30/11/2017, power of attorney in favour of the developer/Opposite Party No.2 was already revoked by Opposite Party No.1. Power of attorney was revoked on 30/7/2017. So the execution of the said deed is done in collusion with the developer only for the purpose of this case. OP No.1 never received any consideration amount and so the transaction in favour of the Complainant is void ab-initio. A civil suit has been filed by the Opposite Party No.1 against the builder/Opposite Party No.2 being T.S.No.1904/2017 which is sub-judice. So Opposite Party No.1 has prayed for dismissal of the case against him.
On perusal of record it appears that inspite of the service of notice, no step has been taken by the Opposite Party No.2 and thus the case proceeded ex-parte against him.
During the course of the evidence, Complainant has filed affidavit-in-chief but the Opposite Party No.1 neither filed any questionnaire nor adduced any evidence.
So the following points require determination:-
- Whether there has been any deficiency in rendering services on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up together for discussion for the sake of convenience and in order to avoid repetition.
Complainant in support of his case, has filed Deed of Conveyance from which it appears that the deed was executed on 30/11/2017 in respect of the schedule flat and was registered on 1/12/2017. The same was executed by Opposite Party No.2 being constituted attorney of Opposite Party No.1 owner. It further appears from the said deed that the entire consideration price of Rs.14,00,000/- has been paid by the Complainant. So the Deed of Conveyance establishes the fact that there was an agreement to sale of schedule flat in favour of the Complainant and consequent to the same said deed was executed on receiving the consideration price as agreed. Only contention raised by Opposite Party No.1 is that on the date of execution and registration of Deed of Conveyance, said developer/Opposite Party No.2 did not have any power to execute the deed in his capacity as constituted attorney of the owner because the power of attorney was already revoked on 30/7/2017. So it is apparent that development agreement was executed between Opposite Party No.1 & 2 and a power of attorney was also executed by Opposite Party No.1 in favour of Opposite Party No.2. Now the question only to be adjudicated is whether OP No.2 had any authority or the power to execute the Deed of Conveyance. In support of his claim Opposite Party No.1 has not filed any document in order to substantiate that the power of attorney was revoked on 30/7/2017.
On perusal of the record it appears that a petition was filed by the Complainant on 17/4/2018 for directing Opposite Party No.1 to produce the document relied upon by him for the inspection by the Complainant. Said petition was disposed off by the Forum on 20/7/2018 directing Opposite Parties to file documents on 2/8/2018 but Opposite Party No.1 failed to produce any document incompliance to the said direction inspite of repeated dates fixed for the said purpose. So apparently there is absolutely no document before this Forum to show that the power of attorney was revoked by the Opposite Party No.1/owner.
It is also claimed that there is a civil suit filed by Opposite Party No.1 against the developer/Opposite Party No.2 and the same is pending. But no document has been filed by the Opposite Party No.1 in order to show that any such Title Suit has been filed. Be that as it may, even accepting that there is a Title Suit filed by the owner against the developer, it is now settled principle of law that it does not bar a purchaser to seek relief under the provision of Consumer Protection Act. Reliance is placed in the case laws reported in 1) 2014(2) C.P.J. 590, 2) 2012 (4) C.P.J. 38 and 3) 2009 (4) C.P.J. 113. In the said cases it has been held that a consumer cannot be made to suffer due to dispute between builder and the owner of the property.
So in view of the legal proposition in the above mentioned case laws, pendency of the Civil Suit will not disentitle the Complainant to seek relief as sought for. It is evident that the possession of the schedule flat has not been handed over to the Complainant. Contested Opposite Party has nowhere stated that the possession has been delivered. So in such a situation, the Complainant is entitled to possession of the schedule flat and the compensation of Rs.1,00,000/- as due to non-delivery of the possession of the flat, he has been residing in rented accommodation. However, as the compensation is allowed no separate order is passed towards reimbursement of rental amount as claimed by the Complainant.
These points are answered accordingly.
Hence,
ORDERED
CC/16/2018 is allowed on contest against Opposite Party No.1 and ex-parte against Opposite Party No.2. Opposite Parties are hereby directed to deliver vacant possession of the schedule flat to the Complainant within three months from the date of this order. Opposite Parties are further directed to pay an amount of Rs.1,00,000/- as compensation and Rs.15,000/- as litigation cost within the aforesaid period of three months failing which the entire amount shall carry interest @10% p.a till realization.
