Smt. Sahana Ahmed Basu, Member.
This is an application u/s.12 of the C.P. Act, 1986.
The factual matrix of the case is that complainant Smt. Dipalihazra(W/o Gopalhazra of 4, Onrait1st Lane, P.S. Entally, Kolkata-700014) had signed a Development Agreement measuring more or less 1 Cottah and 8 Chittaks of premises No. 67, Debendra Chandra Dey Road, P.S. Tangra, Kolkata-700015 along with PareshHazra, (S/o SubolHazra of 8, GobindaKhatik Road, P.S. Tangra Kolkata-700046) who is the 50 percent shareholder of the said land which was amalgamated for the purpose of construction with O.P.-1 M/s Noor Construction, represented by its proprietor Md. Omar(S/o Late Noor Mohammad) having its office and residence at 110/H/8, Elliot Road P.S. Park Street, Kolkata-700016, on 13/12/2013 with the condition that the complainant would be entitled to get 1000 sq. ft. flat along with payment of Rs.10,00,000/- each. The General Power of Attorney was given to O.P.-1 to execute all the works deeds in favour of the intending purchasers. After one year and few months, the O.P.-1 left the work half done and introduced O.P.-2 Sk. Jillani, (S/o Late Sk. Akbar of 45 Tiljala Road, P.S. Topsia, Kolkata-700046 and also at 42/F/1, Tiljala Road, P.S. Topsia, Kolkata-700046) to the complainant and PareshHazra. A fresh Development Agreement was signed between them with same conditions on 02/03/2015. The O.P.-1 had paid Rs.2,50,000/- and the balance sum of Rs.7,50,000/- is still yet to be paid along with the flat measuring about 1000 sq. ft. on the said premises as per terms and conditions. A cheque issued by O.P.-2 vide No.69214 dated 17/06/2015 of Rs.2,50,000/- is dishonoured.
Hence, the complainant approaches this Forum seeking payment of the due amount and also to handover 1000 sq. ft. flat as per terms and conditions of the Agreement along with compensation of Rs.1,00,000/- and cost of the suit of Rs.20,000/-.
In spite of service of notice O.Ps. did not turn up to contest the case. As such, the case has proceeded ex-parte against them.
Point for Decision
- Is the petition of complaint is maintainable in its present form ?
- Are the O.Ps. deficient in rendering service to the complainant ?
- Whether the O.Ps. indulged in unfair trade practice ?
- Does the complainant deserve any relief or reliefs as prayed for ?
Decision with Reasons
Points No.-1 to 4.
All the points are taken up together for the sake of convenience and brevity in discussion.
We have carefully examined the entire materials on record including the E/Chief of the complainant and documents. We have also given a thoughtful consideration to the argument advanced by the Ld. Advocate for the complainant.
On bare perusal of the photocopy of the Development Agreement dated 13/12/2013 we find that the complainant and one PareshHazra in one part and O.P.-1 M/s Noor Construction in other part entered into an Agreement for Development of premises No.67, Debendra Chandra Dey Road, Kolkata-700015. Photocopy of the General Power of Attorney goes to show that the complainant and one PareshHazra executed and registered a Power of Attorney in favour of O.P.-1 to execute all the works deeds in favour of the intending purchasers. The complainant without cancellation of the registered Power of Attorney dated 13/12/2015 and the previous Agreement, executed another Development Agreement on 02/03/2015 in favour of O.P.-2 in respect of premises No.67, Debendra Chandra Road, Kolkata-700015. The Development Agreement dated 02/03/2015 is not legal and binding upon O.P.-2 untill the General Power of Attorney dated 13/12/2013 and the previous Development Agreement is cancelled by a registration instrument. Therefore, the complainant is not entitled to get any relief against O.P.-2.
It is true that in terms of the Development Agreement O.P.-1 was bound to payRs.10,00,000/- each in favour complainant and PareshHazra. The complainant received Rs.2,50,000/- from O.P.-1 and O.P.-1 is liable to pay the balance amount of Rs.7,50,000/- to the complainant. We have it from the Development Agreement that O.P.-1 should handover a flat measuring 1000 sq. ft. to the complainant. In spite of Development Agreement O.P.-1 neither pay Rs.7,50,000/- nor handover the possession of a flat measuring 1000 sq. ft. to the complainant. Due to non-payment of balance amount and non-delivery of the flat,O.P.-1 demonstrated a gesture of deficiency in service and indulged in unfair trade practice.
In para-18 of the complaint petition it has been mentioned that PareshHazra have 50 percent share in premises No.67, Debendra Chandra Dey Road, Kolkata-700015 and executed Development Agreement and Power of Attorney in favour of O.P.-1. But he has not joint with the complainant to expose his grievance for the reason best known to him for which the complainant herself filed the instant consumer complaint. Admittedly, PareshHazra is not a party to this consumer complaint. But such omission does not appear to be defective because interest of PareshHazra is being protected by the sole complainant of this case.
Complainant corroborates her case by adducing evidence on affidavit as well as by producing documents. The evidence of the complainant remain unchallenged and uncontroverted. In absence of any contrary and controverting materials on record and having regard to the documents on record we are of the opinion that the complainant has been able to prove her case. As such, the complainant is entitled to get relief as prayed for against the O.P.-1. The complainant is not entitled to get any relief against O.P.-2.
Thus, all the points under determination answered in the affirmative.
In result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed ex-parte in part against O.P.-1 with litigation cost of Rs.5,000/- and dismissed ex-parte against O.P.-2 without any cost.
O.P.-1 is directed to handover the flat measuring 1000 sq. ft. and also to pay balance amount of Rs.7,50,000/- to the complainant within 45 days from the date of this order together with litigation cost.
O.P.-1 is further directed to pay Rs.20,000/- to the complainant for causing harassment, mental pain and agony within the stipulated period.
Liberty be given to the complainant to put the order in execution,if the OP-1 transgresses to comply the order.
