Date of filing: 17/03/2021
Date of Judgment: 30/5/2023
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Smt. Banani Mondal under section 35 of the Consumer Protection Act, 2019 against the opposite parties (referred as OPs hereinafter) namely (1) M/s. S & J Construction (2) Sri Debasish Sadhukhan (3) Joyradhey Jagatguru Sebashram and (4) Mrs. Madhabi Das, Secretary of OP 3 alleging deficiency in rendering of service on the part of the opposite parties.
Case of the complainant in short is that OP 1 is the developer and OP 2 is its partner OP 3 is the owner and OP 4 is its Secretary. OP 1 & 2 entered into a joint venture agreement with OP 3 and 4 dated 23/08/2012 to raise construction of a building at premises no. 19, Karunamoyee Ghat Road, under Police Station Haridevpur. OP 3 also executed a Power of Attorney in favour of the developer OP 1. OP 1 thereafter agreed to sell a flat to the complainant in the 2nd floor of the building being flat no. 5 measuring about 750 sq. ft. and complainant has paid total sum of Rs. 14,50,000/- to Sukumar Sadhu who had represented the OP 1 at that time. The said Sukumar Sadhu is dead and after his death OP 2 is surviving partner by a partnership deed. He has also received Rs. 1,00,000/-. The agreement for sale was entered into between the complainant and the OP 1 represented by the said Sukumar Sadhu the developers but he did not put his signature in the agreement in spite of several requests. It was agreed that the possession of the flat will be delivered within one year of the execution of the agreement for sale but neither possession has been delivered nor the deed has been executed. So the present complaint has been filed praying for directing the OP to hand over the possession of the flat and to execute and register the deed of conveyance, to hand over completion certificate, in alternatively to return the entire amount of Rs. 15,50000/- along with interest, to pay 10,00,000/- as compensation for mental agony and to pay Rs. 1,00,000/- as litigation cost.
On perusal of the record it appears that in spite of service of notice even through paper publication, OPs did not turn up, so the case has been heard exparte.
So the only point requires determination is whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
In order to establish her claim, complainant has filed copy of development agreement entered into between owner OP 3 being represented by its than secretary Sri Subir Kumar Mukherjee and OP 1 being represented by Sri Sukumar Sadhu on 22.08.2012 to develop the property described therein. It appears that OP 3 is a welfare society. A power of attorney was also executed and registered on 23.08.2012 in favour of OP 1 by OP 3. Complainant has filed the copy of the said power of attorney.
According to the claim of the complainant, the developer OP1 being represented by its proprietor Sukumar Sadhu (now deceased) and as constituted attorney of OP 3 entered into an agreement to sell a flat to the complainant in February 2019 but he did not sign in the agreement. Complainant’s specific case is that she had requested said Sukumar Sadhu to sign in the agreement but in spite of all the assurances he did not sign but received Rs. 14,50,000/- from the complainant during his lifetime. Said unsigned agreement has been filed in this case. It may however be pertinent to point out that an unsigned agreement has no binding effect on the person against whom claim is made. However in this case situation is bit different as the money receipts have been filed along with the statement of bank account wherefrom it is evident that a sum of Rs. 14,50,000/- has been received by the said Sukumar Sadhu on different dates as proprietor of OP 1. Since before this commission, there is absolutely no material contrary to the claim of the complainant that the said amount was received towards the consideration price of the flat, her claim cannot be discarded that there was an agreement to sell the flat and out of Rs. 18,00,000/- consideration price, she paid Rs. 14,50,000/- for the said flat to Sukumar Sadhu (since deceased).
A copy of the partnership deed dated 20.09.2018 entered into between partners Sukumar Sadhu and Debasish Sadhu Khan / OP2 has been filed wherefrom it appears that they were the partners of OP 1 firm. There is a specific recital in the said partnership deed that on the demise of any of the partner the surviving partner will be sole proprietor of the firm and surviving legal heirs will have no rights. So on the death of Sukumar Sadhu, OP 2 has become the proprietor of the OP 1 firm. It is further strengthened from the fact that further amount of Rs. 1,00,000/- has been paid to OP 2 by the complainant and that is evident from bank statement. Said amount of Rs. 1,00,000/- was paid to OP 2 / Debashish H. Sadhu Khan on 04.11.2019. In such a situation, as already highlighted above that there is no contrary material to counter the claim of the complainant, complainant is entitled to refund of Rs. 15,50,000/- as neither she has been handed over the flat nor the money paid has been refunded. She is also entitled to the compensation in the form of interest.
Hence
ORDERED
CC/155/2021 is allowed exparte against OP 1 & 2 and dismissed exparte against OP 3 & 4. OP 1 & 2 are directed to pay Rs. 15,50,000/- to the complainant along with interest @ 8% p.a. from 30.01.2019 (the date of first three payments) to till this date within two months from the date of communication of this order. OP 1 & 2 are further directed to pay litigation cost of Rs. 10,000/- within the aforesaid period of two months. In default of payment, entire sum shall carry interest @ 8 % p.a. till realisation.
