DATE OF FILING : 06.06.2012.
DATE OF S/R : 06.07.2012.
DATE OF FINAL ORDER : 30.12.2014.
Sri Himanshu Mukherjee,
son of late Jagat Bandhu Mukherjee,
permanent resident of 14, Narasingha Dutta Road, Kadamtala,
P.S. Bantra, District Howrah,
at present residing at 38, Kali Prasad Banerjee Lane, P.S. Bantra,
District Howrah. ……………………………………………………….COMPLAINANT.
1. Mr. Subrata Kumar Mukhopadhyay,
son of late Sankar Nath Mukhopadhyay,
2. Smt. Pratima Mukhopadhyay,
wife of late Sankar Nath Mukhopadhyay,
both are residing at 131/1, Narasingha Dutta Road, Kadamtala,
P.S. Bantra, District Howrah,
PIN 7111 01.
3. M/s. Utthan,
a proprietorship firm, represented by its proprietor,
Sri Dipankar Majhi, son of Sri Niranjan Majhi,
residing at 12, Panchanan Chatterjee Lane, P.S. Bantra,
District Howrah, PIN 711101…………………………….OPPOSITE PARTIES.
P R E S E N T
Hon’ble President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Hon’ble Member : Shri P.K. Chatterjee.
Hon’ble Member : Smt. Jhumki Saha.
F I N A L O R D E R
- The instant case was filed by complainant U/S 12 of the C.P. Act, 1986, as amended against the O.Ps. alleging deficiency in service U/S 2( 1 )( g ), 2( 1 )( o ) of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the O.Ps. to execute proper sale deed in favour of the complainant and to handover full finished ‘B’ schedule mentioned flat and compensation to the tune of Rs. 1,00,000/- together with litigation costs as the o.ps. in spite of execution of the deed of agreement on 15.10.2010 and receiving Rs. 58,000/- as part of consideration money did not deliver the flat in violation of the agreement and has been turning deaf ear to the repeated requests.
- The o.p. nos. 1 & 2 in their written version contended interalia that they never entered into any development agreement with respect to the ‘A’ schedule property with the o.p. no. 3; that the deed of agreement as relied upon was never signed by them; that they never executed any power of attorney in favour of the o.p. no. 3. So the petition of complaint is liable to be dismissed.
- The o.p. no. 3 in filing separate written statement contended interalia that the claim of the complainant is false and concocted; that the o.p. no. 3 never gave any rent or charges for temporary accommodation of the complainant; that the o.p. nos. 1 & 2 cancelled the development agreement and revoked the general power of attorney executed in favour of o.p. no. 3. So he is not responsible for violation of the agreement.
- Upon pleadings of parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points are taken up together for consideration. It is the specific case of the complainants that they have been residing as tenants in the house at premises no. 14, Nara Singha Dutta Road, Kadamtala, Howrah, for last 80 years. On giving promise to allot flats to the complainants, the o.ps. secured vacant possession of the premises and entered into an agreement for sale. Though the developers arranged for rental accommodation, the complainants are required to pay rents.
- Unfortunately, the complainants could not file any document showing the agreement for development between the o.p. nos. 1 and 2 with the o.p. no. 3. Nor any power of attorney allegedly executed by the o.p. nos. 1 & 2 in favour of o.p. no. 3 has also been filed. Therefore, we are in the dark if the o.p. nos. 1 & 2 expressed any desire for proposed new construction. It is further palpable that no agreement was executed between the o.p. nos. 1 & 2 with the complainants. The agreement dated 15.12.2010 leaves the vital columns showing alleged date of execution blank ( pages 4 & 5 ). Surprisingly the deed of agreement does not contain the signatures of the o.p. nos. 1 & 2 , though it recorded that they are represented by o.p. no. 3 Dipankar Majhi. We have no hesitation in our mind that the complainants were duped by the o.p. no. 3 on the score of power of attorney and the agreement for development by the o.p. nos. 1 & 2. In absence of such vital documents how the complainants can seek for relief. Moreover, admittedly the ‘A’ schedule property remains unaltered and no construction as canvassed has been started as yet. In such circumstances, the prayer for relief as sought for appears to be vague. We cannot pass such speculative order which is not executable. It would be appropriate to pass necessary direction upon the o.p. no. 3 to refund the earnest money to the complainant. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 55 of 2012 ( HDF 55 of 2012 ) be and the same is allowed in part with costs as against the o.p. no. 3 and dismissed without costs as against the o.p. nos. 1 & 2.
The O.P. no. 3 be directed to refund the sum of Rs. 58,000/- to the complainant received as an advance within 30 days from the date of this order.
The o.p. no. 3 be further directed to pay a sum of Rs. 1,00,000/- as compensation for causing mental pain and unnecessary harassment together with Rs. 5,000/- as litigation costs within the period as mentioned above, failing the total sum of Rs. 1,63,000/- ( Rs. 58,000 + 1,00,000 + 5,000 ) shall carry interest at the rate of 12 percent per annum till full satisfaction.
The complainant is 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 )
President, C.D.R.F.,Howrah.
