Date of filing: 14/09/2018

Judgment date: 27/03/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainant Sri Tarapada Misra under section 12 of the Consumer Protection Act, 1986 against the opposite parties (referred as OPs hereinafter) namely (1) M/s. Anwesha Enterprise (2) Sri Sumantra Chakraborty and (3) Smt. Archana Sengupta, alleging deficiency in rendering of service on the part of the OPs.

Case of the complainant in short is that OP3 being the owner entered into a development agreement with the OP 1 & 2 the developers on 03/11/2014 to develop ‘A’ Schedule property described in the said agreement. A General Power of Attorney was also executed by OP 3 in favour of OP No. 2 the proprietor of OP No. 1 to develop and construct three storied building. Consequent to the said development agreement entered into between the opposite parties, OP 1 & 2 as developers and also as constituted attorney of OP 3 entered into an agreement for sale dated 03/03/2016 with the complainant to sell a flat described in the second schedule of the said agreement at a total consideration price of Rs. 15,30,000/-. Complainant has paid the entire consideration price and the possession of the flat has also been delivered to the complainant by OP developer. The complainant has been possessing the said flat and also enjoying the separate electricity by way of separate meter in his name. But in spite of repeated request, the deed of conveyance has not been executed in favour of the complainant by the opposite parties. Thus the present complaint has been filed by the complainant praying for directing the opposite parties to execute and register the deed in his favour, to pay Rs. 50,000/- as compensation and Rs. 50,000/- towards litigation cost.

OP 1 & 2 have contested the case by filing written version contending specifically that the development agreement was entered into between OP 3 the owner and OP 1 & 2. A Power of Attorney was also executed in favour of OP 2. Consequent to the same OP 1 & 2 entered into agreement for sale with the intending purchasers including the complainant in respect of the developer’s allocation. As per the agreement for sale dated 03/03/2016 OP 1 & 2 have already delivered possession of the flat to the complainant after receiving the full consideration price. It is further contended that after completion of the building as per development agreement OP 1 & 2 have also delivered the owners allocation but OP 3 has revoked the Power of Attorney executed in favour of OP 2. For the said reason OP 1 & 2 could not execute the deed of conveyance in favour of the complainant.

OP 3 is also contesting the case by filing the written version contending inter-alia that she constructed three storied building and made several flats after demolishing the existing old structure and to look after the construction work of the said three storied building, OP 3 appointed OP 2 as her attorney by way of General Power of Attorney dated 10/11/2014 but in the said Power of Attorney there is specific recital in paragraph – 13 that “Power of Attorney does not create, constitute or assume any kind of transfer, enjoyment, or making profit in favour of the attorney. Further declare that the said Attorney shall not obtained or have power for development work of such property personally.” It is also contended by OP 3 that she was compelled to revoke the said General Power of Attorney by executing a deed of revocation dated 21/11/2016 and accordingly OP 3 was also instructed not to do any acts on behalf of OP 3. So the OP 2 had no right to enter into any agreement for sale dated 03/03/2016 with the complainant. OP 3 has filed a criminal case against OP 2 and process has been issued against OP 2 by the court of Ld. J.M. 7^th Court at Alipore. Complainant in fact is the trespasser and a civil suit has also been filed by OP 3 against the complainant. Thus OP 3 has prayed for dismissal of the case with cost.

During the course of trial both the parties filed their examination in chief on affidavit followed by filing of questionnaire and reply thereto. Ultimately argument has been heard on behalf of the complainant. But OPs did not take any step during argument. BNA has also been filed by the complainant.

So the following points require determination:-

1. Whether there has been any deficiency in rendering of service on the part of the OPs.
2. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

Both the points being inter related are taken up together for discussion in order to avoid repetition. In support of his claim that an agreement for sale was entered into between the complainant and OP No. 1 & 2 as developer and constituted attorney of OP 3, complainant has filed the agreement for sale dated 03/03/2016. OP 1 & 2 being the developer in their written version have admitted about the execution of the agreement for sale in respect of the flat as specified in the second schedule of the said agreement in favour of the complainant and have also admitted that after payment of full consideration price of Rs. 15,30,000/- the possession has been delivered to the complainant. It is also an admitted fact that the complainant is in possession of the flat. Complainant has also filed an electricity bill showing the enjoyment of the electricity in his flat by installing a meter in his name.

The only dispute raised is by OP 3 the owner contending that she herself raised the construction of the building and OP 2 was only appointed as her attorney to look after the construction work of the three storied building. It is further contended by OP 3 that OP 2 had no power to create any kind of transfer or make any profit in his favour. But in this context it may be pertinent to point out that OP 1 & 2 have categorically stated that a development agreement was entered into between OP 1 & 2 and OP 3 on 16/11/2014 and consequent to the same a General Power of Attorney was also executed in favour of OP 2 by OP 3. The copy of the development agreement entered into between OP 1& 2 and OP 3 has been filed wherefrom it appears there is specific recital that “The owner grants exclusive right to the developer to develop the said land in such a manner as the developer deem fit in accordance with the approved structural drawing by the architect of the developer herein. The developer shall construct a straight three storied building consisting of several independent flat and spaces to be constructed in or upon the aforesaid property and shall include common areas and facilities intended for the enjoyment of all the flat owners”. So the aforesaid terms in the agreement is very categorical that the agreement was entered into between the owners and the developer for raising the construction of the building by the developer. If that be so then the contention of the OP 3 that the building was constructed by her and that the OP 2 was only appointed to look after the construction work, is devoid of any merits.

So far as contention of OP 3 that OP 2 had no right to create any kind of transfer, in this regard the development agreement again belies such contention of the OP 3. As per the terms of the said development agreement it says “that the remaining areas of straight three storied building to be constructed on the said plot of land as per structural plan with proportionate of land should be treated as developer allocation and the developer shall be entitled of his portion of the building and have right to entered into agreement for sale, lease, transfer on the said portion with the intending purchaser / purchasers at its own discretion without disturbing the owners allocation”. As per the further terms in the said development agreement “the owner shall execute a registered General Power of Attorney in favour of the developer by which the developer shall be entitled for entering into agreement for sale in respect of the developer’s allocation”.

So the aforesaid terms and conditions in the agreement is very specific that the developer was entitled to enter into agreement to sell his allocation to the intending purchasers. The agreement for sale was entered into between the complainant and the OP 1 & 2 as developer and constituted attorney of OP 3 on 03/03/2016 when the development agreement dated 03/11/2014 and the Power of Attorney dated 05/11/2014 was in force. The revocation of power of attorney was apparently done by OP 3 on 21/11/2016 when the transaction in favour of the complainant had already taken place on the basis of General Power of Attorney and development agreement. So the revocation of Power of Attorney shall have no effect so far as the agreement for sale entered into between the complainant and the OP developer. Moreover this is now settled principal of law that dispute between a developer and the owner cannot be a reason to deprive a bonafide purchaser in respect of the flat purchased by him. Since apparently no deed of conveyance has been executed and registered in favour of the complainant in respect of the subject flat, complainant is entitled to the execution and registration of deed. As admittedly the Power of Attorney executed in favour of OP 2 has been revoked by a deed of revocation dated 21/11/2016, OP No. 3 is liable to execute and register the deed in favour of the complainant wherein OP 1 being represented by OP 2 will be confirming party. However on consideration of the facts and situation of this case we find no justification to allow any compensation as prayed by the complainant.

Hence

              ORDERED

CC/561/2018 is allowed on contest. Opposite party no. 3 is directed to execute and register the deed of conveyance in favour of the complainant in respect of the flat as per agreement for sale dated 03/03/2016 within two months from this date. OP 1 being represented by OP 2 shall be confirming party. OPs are further directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of two months.