Date of filing 23-12-2016
Judgement dt.27-04-2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Pintu Sana alleging deficiency in service in the part of the opposite parties (referred as OP hereinafter) namely 1) M/s. Sonartari Enterprise 2 ) Smt. Nilima Saha 3) Sri Sudan Naskar 4) Sri Prafulla Ranjan Moulik 5) Smt Chandrima Moulik.
Case of the Complainant in brief is that the OP Nos.4 & 5 are joint owners of Municipal premises no.122, Kalikapur Road, Flat no.1A 1st Floor, Kolkata-700099 P.S. Purba Jadavpur. The OP Nos. 4 & 5 had entered into an agreement for development with the OP Nos.1 to 3 for the purpose of their residential plot by constructing a four storied building therein and subsequently to sell the developers allocation to the Complainant against valuable consideration. Accordingly the Complainant entered into an agreement for sale dated 27/4/2018 with the OP Nos.2 & 3 and the same agreement for sale was duly confirmed by the OP Nos. 4 & 5. Agreed consideration amount for the flat was Rs.11,65,000/- out of which the Complainant had paid Rs.8,50,000/- to the OP developers and the same was acknowledged by them. It is stated by the Complainant that after lapse of a Considerable spell of time the OP developers did not deliver possession of the said flat although they promised to hand over the same after completion. The Complainant, as stated, that he made request on several occasions to the OP developers for delivery of possession of the flat in question but all were in vain. Hence the Complainant has filed the instant complaint praying for direction upon the OPs to delivery of the possession of the said flat and registration of Deed of Conveyance and also to pay Rs.1,00,000/- towards compensation.
OP developers and land owners contested this case by filing written versions respectively.
In their written version OP Nos.1 to 3 denied all material allegations save and except which are on record stating inter alia that OP Nos.4 & 5 are joint owner of the land which is within municipal premises no.122, Kalikapur Road, flat no.1A, first floor, Kolkata-99, P.S. Purba Jadavpur in respect of which the OP Nos.4 & 5 entered into an agreement for development with the OP Nos. 1 to 3 for the purpose of development of the said residential plot by constructing a four storied building thereon. The OP Nos.4 & 5 also executed a Power of Attorney in favour of the OP No.1. It is stated by the OP Nos. 1 to 3 that subsequently the Power of Attorney had been revoked and, therefore, the OP developers have no power to deliver possession of the flat in question to the Complainant and as such they have no intestinal latches in their part. Accordingly they have prayed for dismissal of the complaint.
The OP No.5/landowner filed the written version stating inter alia that the OP Nos.4 & 5 never signed the alleged agreement for sale, the instant case is not maintainable before this Forum and the development agreement is not registered one and the OP No.4 had died before filing of the instant case. Accordingly prayed for dismissal of the instant case.
The Complainant filed affidavit-in-chief. The Complainant annexed Agreement for sale dt.27/4/2013, Money Receipts.
In course agreement Ld. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.
Points for determination
- Whether this case is maintainable before this Forum in its present form ?
- Whether there is deficiency in service on the part of the OPs ?
- Whether the Complainant is entitled to get the reliefs as prayed for ?
Decision with reasons
Point No.1
The OP No.5 filed petition challenging maintainability of this consumer complaint which was rejected by this Forum. Thereafter the OP No.5 preferred revision before Hon’ble SCDRC, WB challenging the said order that too rejected with cost holding the case is maintainable but OP No.5 had not paid the cost therefore vide order dt.15.02.2018 passed by Ld. This Forum. OP No.5 was debarred from contesting the case. However the OP No.5 filed written version and the same has been taken for consideration. According to the order passed by the Hon’ble SCDRC, WB the Consumer Forum is found competent enough to entertain the instant case. Hence the instant case is maintainable.
Point 1 is decided accordingly.
Point No.2
The Complainant has claimed to have entered into an agreement for sale with the OPs and paid a sum of Rs.8,50,000/- to the OP developers. The OP developers admitted to receive the same amount. The OP developers expressed their willingness to deliver the possession of said flat but stated that as the Power of Attorney has revoked they have no power to hand over or transfer of the said property.
However, as per provision of section 202 of Indian Contract Act, 1872 the land owners cannot revoke the authority by revoking the Power of Attorney executed in favour of the Developers, nor can it be terminated by insanity and death of the landowners.
In such view of the matter it is found that the OP developer is competent enough to deliver possession of the said flat and to execute the registration of Deed of Conveyance of the flat in question and as such to discharge their contractual obligation.
Under such state of affairs the OP developers are directed to deliver possession of the flat in question and the OPs are directed to execute the Deed of Conveyance in favour of the Complainant.
Considering the circumstances we are inclined to pass no order towards compensation.
In the result, the petition of complaint succeeds in part.
Hence,
O R D E R E D
that the complaint case no.CC/622/2016 is allowed in part on contest without cost against the OPs.
The OP developers are directed to deliver the possession of the flat in question to the Complainant within one month from the date of this order.
OPs are further directed to execute the Deed of Conveyance in favour of the Complainant within the aforesaid period.
In the event of non compliance of this order or any part thereof the Complainant may file Execution Application as per provision of law.
