Order-18.
Date-16/12/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the Complainant is in short is that OP No. 1 is a developer and promoter of land and building and OP No.1(i) and 1(ii) are its partners. The property belonged to the mother of OP No. 2 who acquired the scheduled property on the death of her mother. OP No. 2 entered into an agreement dated 24.06.2012 with OP No. 1 for development of the land and construction of a multi storied residential apartment building thereon. OP No. 1 in pursuance of the development agreement convinced the Complainant that power of attorney from OP No. 2 (Land owner) is in possession of the Ld. Advocate of the OP No. 1 and he was out of station. OP No. 1 obtained a sanction plan of the proposed building in the name of OP No. 2 from KMC. The Complainant entered into a tripartite agreement on 28.09.2012 with OP No. 1 on payment of earnest sum of Rs.50,000/- for a total consideration of Rs.16,50,000/-inclusive of the earnest money. The OP No. 1 also assured the Complainant that he would obtain signature of the OP No. 2 in the agreement dated 28.9.2012. But, OP No. 1 ultimately failed. A meeting was calledin the meeting OP No. 2 agreed to enter into a tripartite agreement. The Complainant submits that pending execution of the agreement for sale on 15.05.2013, the Complainant had also paid an amount of Rs.1 lakh to OP No.The Complainant again paid a further sum of Rs.1,50,000/- to the OP No. 1 towards part payment of the consideration money on 21.12.2012. Thus, the Complainant paid the OP No. 1 a total sum of Rs.2 lakh and got money receipts for all such payment. On 29.11.2012 the Complainant requested Mr. Rana Basu, first partner of OP No. 1 for an authenticated copy of sanctioned plan, but to no good.
The Complainant however, got the sanction plan on 21.2.2012 from OP No.1.The Complainant requested the OP for fresh tripartite agreement to facilitate bank loan as floor area was enhanced to 734 Sq. ft. from 504 Sq. ft. It is alleged that there was no progress of construction,. The Complainant paid an amount of Rs.50,000/- on 15.05.2013 on the date of execution of final tripartite agreement for sale. The Agreement dated 28.9.2012 remained unexecuted by OP No. 2. On the date of execution agreement for sale on 15.05.2013 the Complainant paid further sum of Rs.2,02,500/- and Rs.10,000/- in cash and Rs.1,92,500/- by cheque for commencement of the completion work of the Projects and got receipts as against such payment. It was also settled that the balance amount of Rs.11,47,500/- would be satisfied by the loan from Bank to be paid directly by the Bank. Complainant paid. Rs.12,18,000/- in total to the OP No.1. But to utter dismay the Complainant found that the project work was standstill. OP No. 1 under pressure by a letter dated 21.08.2013 disclosed that he had no power of attorney with him from OP No. 2. It is also stated that he has filed a Title Suit being TS. 7 of 2015 on 13.02.2015 at the Court of Civil Judge, (Jr.Division), Alipore against OP No.2 in respect of his landed property of the project. It is alleged that the Complainant is kept in dark about the filing of the said Suit and she was not also made a party in the said suit. The Complainant has alleged deficiency of service and unfair trade practice against the OP No. 1.
It is stated that the construction was to be completed within 18 months from the date of sanction of building plan, but that period has been expired on 15.11.2014. But the OP No. 1 has raised no construction. It is stated that OP No. 1 took the money from Complainant with a view to cheat her. It is also stated that the Complainant has been paying interest Rs.11,500/- p.a. for the loan taken from the Bank. The Complainant has filed this case for direction upon OP No. 1 to recommence the construction of the flat at the scheduled site in terms of the tripartite agreement dated 28.09.2012 and 15.5.2013 along with other reliefs.
The OP No. 1 (1) (II) have contested the case In filing W.V. contending inter alia that the complaint is misconceived and is not maintainable in law and in fact.
It is also stated that the dispute does not come within the purview of CP Act, 1986. It is stated thata development agreement has been executed between the op parties and land owners on 24.06.2012 for construction of a building where the owner will get 50 percent of the total floor area and the developer will get 50 percent. As per the development agreement, the land owner will provide power of attorney in favour of the developer for construction of the building. But the land owner did not provide power of attorney in favour of the developer in spite of repeated demand. It is also stated that a tripartite agreement for sale was executed with the Complainant by the OPs for sale of two room flat covering area of 504 Sq. ft at a total consideration of Rs.16,50,000/-. During construction, dispute cropped up between the landowner and the developer where as the developer repeatedly demanded power of attorney, but the owner deferred with different pretext. The developer requested the land owner for appointment of an Arbitrator as per the development agreement but the land owner did not respond. It is also stated that the developer instituted a civil suit before the first Civil judge, jr. Division at Alipore, being title suit No. 7 of 2015 against the landowner with prayer for declaration and permanent injunction which is pending. The answering OPs intimated the Complainant regarding the delay in construction due to illogical intervention of the landowner and pending litigation. The Complainant approached the Ld. Civil Court for being added party in T.S. 7 of 2015 but the Ld. Judge of Jr. Division at Alipore rejected the prayer of the Complainant. The Complainant thereafter has filed the instant case against the OPs. These OPs have prayed for dismissal of the case.
OP No. 2 have not contested the case and the case has proceeded ex parte against the OP No. 2.
Point for Decision
1) Whether the OPs.No.1 (i) and (ii) have been deficient in rendering services to the complainant?
2) Whether the Answering OPs have indulged in unfair trade practice?
3) Whether the Complainant is entitled to get relief as prayed for?
Decision with Reasons
We have perused the document on record namely, photocopy of Deed dated 20.05.1970, photocopy of Registered Deed of settlement dated 02.08.1993 in the name of Shyam Sundar Mukherjee, photocopy of development agreement dated 24.06.2012 in between OP No. 2 and OP No. 1, photocopy of tripartite agreement dated 28.09.2012 in between the Complainant and OPs, photocopy of execution of the agreement for sale dated 15.05.2013 in between OP No. 2 and OP no. 1(i) and OP No. 1 (ii), photocopy of sanction of Bank loan with the documents on record.
It is worthy to pointout that the petition of complaint is ill drafted and it becomes increasingly difficult to gather facts in issue in comprehensive manner. The content of the complaint remains obscured at some places, Be that as it may,what we get a glimpse is that the Complainant entered into a tripartite agreement on 18.09.2012 with OP no. 1 and op No. 1(ii). The signature of the landowner (OP No. 2) is not appearing therein. It also appears that OP No. 2 entered into a development agreement dated 24.6.2012 with OP no. 1 represented by its partner Mr. Rana Basu and Smt Susmita Basu being husband and wife.We find that one Smt. Manimala Basu, was the original owner of the scheduled land and she subsequently formed a Trust and settled the trust property in favour of OP No. 2. It appears from the photocopy of the impugned deed that Smt. Manimala Basuon 20.8.1993 executed a Deed of settlement in favour of Smt. Manimala Debi called Trustees settled the property in respect of the same in favour of her son Shyam Sundar Mukherjee, the beneficiary (OP No. 2). But the trustee was not entitled to sell or mortgage or encumber the said property as specified in the said settlement of deed. But we find that Mr. Shyam Sundar Muherjee entered into a development agreement with OP No.1 (i) and OP No.1 (II) on 26.4.2012 contrary to the recitals of Trust Deed dated 20. 08.1993.
We find that OP No. 1 on some plea or other took money from the Complainant for the subject flat from time to time. OP No. 1 failed and neglected to complete the construction of the entire subject flat within the stipulated period. It is alleged by the answering OPs1 (i) and 1 (ii) that dispute cropped up between the landlord and the developer, repeatedly demanded power of attorney from the landlord, but the same is deferred by OP No. 2 under different pretext. It is also astonishing how the developer could take money from the Complainant without power of attorney. It also appears that the developer instituted a Civil Suit before the Ld. Civil Judge, Junior Division at Alipore being No.TS 7/2015 against the land owners and the said Title Suit has been pending. We think Complainant cannot dragged into all such dispute facts. The fact remains that OP no. 1, collected money from the Complainant illegally with no prospect of immediate development or construction at the site of the project. The OP no.1 has utilized the amount, received from the complainant, for his own ulterior gain. We think OP No. 1 has indulged in unfair trade practice and the Complainant has been caught in a vicious racket. As par the SettlementDeed dated 02.08.1993 OP No. 2 has been appointed as beneficiary of the scheduled property and he has entered into a development agreement with OP No. 1 illegally. Be that as it may, we find that OP No. 1 has received an amount of Rs. 12,18,000/- in total from the Complainant in different phases with no prospect of developmental work or handover of the subject flat to the Complainant. We cannot direct the OP No. 1 for recommence of the construction of the flat as prayed for because T.S. being No.7/2015 is pending in between the developer and the so called land owners. However, we think it fit and proper to direct OP No.1 to refund the amount given by the Complainant to OP No. 1.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP no. 1(i) and 1(ii) and ex parte against OP No. 2.
OP No. 1 is directed to refund the amount of Rs.12,18,000/- in favour of the Complainant with 9 percent interest per annum w.e.f. 28.09.2012 till compliance within one month from the date of this order.
OP No. 1 is also directed to pay a compensation of Rs.1 lakh to the Complainant apart from litigation cost of Rs.10,000/- within the said stipulated period.
OP No. 1 is also directed to deposit an amount of RS. 1 lakh as penal damage to this Forum for practicing unfair trade within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
