Order No. 12 dt. 20/08/2019
The case of the complainant in brief is that the complainant entered into an agreement with o.p. nos.1 to 3 for purchasing a flat measuring 1177 sq.ft and a garage measuring 132 sq.ft. in the premises no.P-184, CIT Scheme IV M, P.S. Beliaghata, Kolkata-10 at a total consideration price of Rs.10 lakhs. The complainant paid the entire consideration money to o.p. nos.1 to 3, but they failed to execute and register the deed of conveyance in favour of the complainant. The complainant requested several times to o.ps. but o.ps. did not pay any heed for which the complainant filed this case praying for direction upon the o.ps. to execute and register the deed of conveyance in respect of the flat and garage in favour of the complainant as well as compensation and litigation cost.
In spite of receipt of notices the o.p. nos.1 to 3 did not contest this case by filing w/v and as such, the case has proceeded ex parte against them.
The o.p. nos.4 to 6 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the development agreement was made between o.p. nos.1 to 3 and the answering o.ps. whereby it was agreed that 4 nos. of flat will be provided to the owners and the remaining 4 flats will be in the developers’ allocation. The developers entered into an agreement with the complainant for selling those flats to the intending buyers upon acceptance of the consideration amount. The power of attorney was executed and registered in favour of one Sukhen Bhattacharya, proprietor of the said construction firm and he was given power to sell the allotted portion of the developers in the said building on behalf of the owners. It was agreed upon that for disposal of the flats for the developers’ allocation, the owners shall have no obligation nor the owners can have any responsibility for effecting the possession of the flats and for repayment of money to any alleged buyers with whom the construction company will enter into agreement for sale. That being the position, no action can be taken against the owners of the said premises nor the owners can be held responsible for any wrongful act, if caused by the said developer to any intending buyers. Since the owners had given power by way of registered power of attorney in favour of the owners of the development company to sell the developers’ allocation in the said premises to the intending buyers upon receiving the consideration amount from such buyers and since the said power of attorney has not yet been cancelled or revoked or since the said power of attorney is still in existence, the owners did not have any liability or responsibility in the way of transfer of the flat to the complainant under any circumstances. On the basis of the said fact o.p. nos.4 to 6 prayed for dismissal of the case against them.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainant had entered into an agreement with o.ps. for purchasing a flat and garage at the said premises?
- Whether the possession was given to the complainant?
- Whether o.ps. failed and neglected to execute and register the deed of conveyance in respect of the flat and the garage in favour of the complainant?
- Whether there was any deficiency in service on the part of o.ps.?
- Whether the complainant will be entitled to get the relief as prayed for?
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainant argued that the complainant entered into an agreement with o.p. nos.1 to 3 for purchasing a flat measuring 1177 sq.ft and a garage measuring 132 sq.ft. in the premises no.P-184, CIT Scheme IV M, P.S. Beliaghata, Kolkata-10 at a total consideration price of Rs.10 lakhs. The complainant paid the entire consideration money to o.p. nos.1 to 3, but they failed to execute and register the deed of conveyance in favour of the complainant. The complainant requested several times to o.ps. but o.ps. did not pay any heed for which the complainant filed this case praying for direction upon the o.ps. to execute and register the deed of conveyance in respect of the flat and garage in favour of the complainant as well as compensation and litigation cost.
It’s the contention for the o.p. nos.4 to 6 argued that the development agreement has made between o.p. nos.1 to 3 and the answering o.ps. whereby it was agreed that 4 nos. of flat will be provided to the owners and the remaining 4 flats will be in the developers’ allocation. The developers entered into an agreement with the complainant for selling those flats to the intending buyers upon acceptance of the consideration amount. The power of attorney was executed and registered in favour of one Sukhen Bhattacharya, proprietor of the said construction firm and he was given power to sell the allotted portion of the developers in the said building on behalf of the owners. It was agreed upon that for disposal of the flats for the developers’ allocation, the owners shall have no obligation nor the owners can have any responsibility for effecting the possession of the flats and for repayment of money to any alleged buyers with whom the construction company will entered into agreement for sale. That being the position, no action can be taken against the owners of the said premises nor the owners can be held responsible for any wrongful act, if caused by the said developer to any intending buyers. Since the owners had given power by way of registered power of attorney in favour of the owners of the development company to sell the developers’ allocation in the said premises to the intending buyers upon receiving the consideration amount from such buyers and since the said power of attorney has not yet been cancelled or revoked or since the said power of attorney is still in existence, the owners did not have any liability or responsibility in the way of transfer ofthe flat to the complainant under any circumstances. On the basis of the said fact o.p. nos.4 to 6 prayed for dismissal of the case against them.
Considering the submissions of the respective parties it is an admitted fact that the complainant entered into an agreement with o.p. nos.1 to 3 for purchasing a flat measuring 1177 sq.ft and a garage measuring 132 sq.ft. in the premises no.P-184, CIT Scheme IV M, P.S. Beliaghata, Kolkata-10 at a total consideration price of Rs.10 lakhs. The complainant paid the entire consideration money to o.p. nos.1 to 3. The complainant has stated that she was provided with the possession of the said flat and garage in the year 2003, but o.ps. failed and neglected to execute and register the deed of conveyance in respect of the said flat and garage in favour of the complainant, though the complainant paid the entire consideration of rs.10 lakhs to o.p. nos.1 to 3. The o.p. nos.4 to 6 in their w/v categorically stated that they executed the power of attorney in favour of one Sukhen Bhattacharya, but the said power of attorney has not been revoked, thereby said Sukhen Bhattacharya is liable to execute and register the deed of conveyance in favour of the complainant. The o.p. nos.4 to 6 failed to produce the said document to fortify the claim that they executed the power of attorney in favour of Sukhen Bhattacharya. On perusal of the agreement for sale it appears that the names of o.ps. appearing and some of them put their respective signatures in the said agreement. Since the flat in question was provided to the complainant as per the developers’ allocation, therefore the developers should be the confirming parties in respective of the said deed of conveyance, but the owners must put their respective signatures in the said deed of conveyance. It appears from the materials on record that o.p. nos.1 to 3 failed to appear before this Forum, therefore the case has proceeded ex parte against them and the complainant in order to ensure their presence issued notice through newspaper, but o.p. nos.1 to 3 did not appear and did not contest the case. In view of the facts and circumstances as stated above, we hold that there is gross deficiency in service on the part of o.p. nos.1 to 3 and as such, o.p. nos.1 to 3 should be given direction to execute and register the deed of conveyance in respect of the said flat and garage in favour of the complainant and to pay compensation and litigation cost. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.304/2018 is allowed ex parte with cost against the o.p. nos.1 to 3 and allowed on contest without cost against other o.ps. The o.ps. are jointly and/or severally directed to execute and register the deed of conveyance in respect of the said flat and garage in favour of the complainant and the o.p. nos.1 to 3 are jointly and/or severally directed to pay to the complainant compensation of Rs.30,000/- (Rupees thirty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
