M.A. 33/2023 & M.A. 34/2023

Arising out in C.C. 302/2022

Date of Filing:                                                                                              Date of Disposal:

    24.04.2023                                                                                                        03.05.2023

P R E S E N T                :- Smt. Monisha Shaw.……………… Member.

                                         :- Sri.  Abhijit Basu…………………. Member.

Order No._07

Date:- 03.05.2023

            The Complainant filed a petition U/s 38(8) of the Consumer Protection Act, 2019. The copes are served upon P.P. members. Opposite Parties appeared and contested the matter. Both the petitioner of M.A. 33/2023 and M.A. 34/2023 are taken up together today for hearing. The matter and / or petitions heard in presence of both the parties. The Complainant submits that the Complainant booked a residential flat at 1^st floor about 525 sq.ft. of the fron side of the building together with undivided proportionate share upon C.S. Dag No. – 179, Mouza – Sultanpur, J.L. No. 10, under sabek Khatian No. 852, corresponding Khatian No. 854, R.S. Dag No. 179 at Kalibari Road within local limits of Dum Dum Municipality the description mentioned in schedules in the Deed of Sale agreement dated 6^th August 2018 between the Developer, land owner (which was signed as constituted attorney i.e. Developer as Development Power of Attorney holder) and Complainant. The Complainant paid total advance and part of consideration amount of total Rs. 4,50,000/- for booked the said flat. One notarized Deed of Sale agreement was made between the parties. The land owner made a Registered Development Power of Attorney and Registered Development agreement between the O.P. No. 1 and 2 on 29.05.2017. The Developer made development work and as much on good faith the Complainant made the said agreement for sale a flat on 06.08.2018. The O.Ps did not handed over the said flat inspite of receiving advance many and also part of the consideration money.

As the landlord made Power of Attorney to do all work and given right to sell the flat on their behalf so the agreement for sale is lawfully done. By dint of said power of attorney the Developer signed on behalf of the land lord at the said agreement for sale deed. The Complainant went several time for inspection at the said premises and found that the construction work is going on. Recently the Complainant came to know that developer is changed without any information and without any consent of the Complainant and without any public notice. The land lord and present newly appointed developer disagreed and / or refused to hand over the booked flat of the complaint. The Advocate for Complainant submits that it is pertinent to mention when the landlord made Power of Attorney to the Developer from that day the developer did all works on behalf of the land owner and the land owner has vicarious liability upon the agent and / or his Power of Attorney holder. Always principle is liable for each and every work done by his agent. Principal is liable which falls on the act of the agent and / or agent i.e. developer acted against the master’s express direction. Hence, the developer acted all works as per express direction of landlord. In the instant case when developer signed by and on behalf of the landlord by dint of Power of Attorney in that event landlord has vicarious liability. The Complainant paid total Rs. 4,50,000/- for purchase the said flat but presently there is every possibility to sale or transfer the said flat to third party. Therefore, ad-interim injunction is required for this matter to protect the consumer right and to protect much unfair trade practice.

Advocate for Opposite Party No. 3 i.e. land owner submits that the land owner made a registered developer agreement with Developer i.e. O.P. No. 1 and 2 made a registered development Power of Attorney and also made Development Power of Attorney on 29.05.2017.

Thereafter, in the year 2021 on 15^th January revoked the said development agreement and development Power of Attorney and made new development agreement with new developer on 10.02.2021. It is admitted that the developer who made agreement for sale with the Complainant in the year 2018 with previous developer.

Contd. To Page No. 2 . . . ./

: :  2  : :

M.A. 33/2023 & M.A. 34/2023

Arising out in C.C. 302/2022

Now he is not working. Though before revoke the development agreement and development Power of Attorney it was the duty of the landlord to know the details regarding the agreement with the then developer and others and it was also the duty of the landlord to issue public notice at wide published daily newspaper. But the land owner did not collecting any such information. Only revoked and appointed new developer without informing the Complainant.

We, carefully perused the petitions, objection and documents filed by both the parties.

It revealed from the record and documents that the developer signed himself and also signed by and on behalf of the land owner by dint of Registered Development Power of Attorney. The land owner has vicarious liability upon the Developer. Before revocation of Development Agreement and Development Power of Attorney it is the duty of the parties to declare everything regarding the tenure of Power of Attorney exist. By revoking any deed none can deprive any person who paid money for purchase flat. The land owner is not denied the signature of the developer who signed agreement for sale by himself and also signed on behalf of the land owner by dint of Development Power of Attorney. Before revocation of Development Agreement and Development Power of Attorney no public notice were made. The subsequent developer and land owner are bound to consider the agreement for sale which was made by the agent of the land owner. The agreement for sale which was made on 06.08.2018 is not yet cancelled or settled.

Considering the contents of the parties it is found that the Complainant has a fairly good and prima facie case to entertain.

Considering the balance of convenience and inconvenience of the case the temporary injunction petition is allowed as the matter is very urgent and without issuing temporary injunction the fate of the case shall be infructuous. Allow the petition of M.A. 32/2023 and rejected the M.A. 33/2023.

Hence, it is hereby directed all the Opposite Party not to sale or transfer the suit property to any third party till further order.

To 18/07/2023 for hearing of petition M.A. 32/2023.  

 Dictated & Corrected by me                      

 Member

 Member                                                                                              Member