Judgment : Dt.11.9.2017

Shri S. K. Verma, President.

            This is a complaint made by one Govind B. Arora, 5^th floor, 14, Dr. Suniti Kumar Chatterjee Sarani, P.S.-Gariahat, Kolkata-700 029 against M/s Sonia Promoters Pvt. Ltd., having its registered office at 14, Hindustan Park, P.S.-Gariahat, Kolkata-700 029, OP No.1, Dr. Sachchidananda Bedi, OP No.2 and Mr. Hridayananda Bedi, both sons of Late Kamalakanta Bedi, both residing at 2/9, Diamond Park, P.S.-Haridevpur, Kolkata-700 104, praying for a direction upon the O.P. to execute and register the deed of conveyance in respect of second schedule flat within a specific period in favour of the Complainant and a direction upon the OP to hand over possession of the flat as mentioned in the 2^nd schedule and further direction to pay Rs.1,80,000/- (Rs.60,000/- each of the OPs) to the Complainant for unfair trade practice, Rs.1,00,000/- for stamp duty and Rs.50,000/- as litigation cost.

            Facts in brief are that OP No.1 is the developer and does business in the name and style of M/s Sonia Promoters Pvt. Ltd. Complainant further states that OP Nos.2 & 3 are the land owners in respect of the land having an area of 20 kottahs 6 chhatakas and 33 sq.ft. OP Nos.2 & 3 entered into a development agreement for development of the first schedule property mentioned in the complaint. Complainant further has stated that OP No.2 & 3 as land owners executed a power of attorney in favour of OP No.1. Complainant entered into an agreement for sale on 17.10.2014 for purchasing a flat in respect of the residence measuring about 698 sq.ft. more or less super built up area being flat No.B4C with undivided proportionate share at a total consideration of Rs.17,00,000/-. Complainant requested the developer to execute the deed of conveyance in favour of the Complainant and to handover possession. The OP No.1, developer, is ready and willing to handover the possession of the schedule flat. But, unable to execute the sale deed as OP Nos.2 & 3 have revoked the power of attorney. On several occasions, OP fixed date for registration of the sale deed, but ultimately it could not be done. So, Complainant filed this case.

            OP Nos.2 & 3 filed written version and denied all the allegations of the complaint. They have stated that they entered into a development agreement with OP No.1. The Plan was passed by the Joka-II Gram Panchayet as per ratio settled the owner was to get seven flats, one car parking space in Block B and developer to get 9 flat and car parking space. OP No.1 raised unauthorized construction and failed to complete the building, Block B & C and failed to obtain completion certificate. For non performance of the terms of development agreement dt.5.9.2012 and for violating the terms the OPs revoked the power of attorney on 8.9.2016. The OP No.1 filed title suit being No.2174/2016 before the Ld. 5^th Civil Judge, Jr. Divn. OP No.1 also filed an application for injunction restraining OP No.2 & 3 from transferring assignee under agreement and Ld. Court passed an ad-interim order of injunction in the form of status quo. In the application for injunction, OP No.1 enclosed documents stating that in Block B, 9 flats they entered into an agreement for sale out of which 4 conveyance deed were made. In Block C they entered into agreement for sale in respect of 10 flats and executed conveyance deed. Complainant Deepak Gupta is the agreement for sale holder in respect of the flat No.B4C in Block C. Complainant stated that he entered into agreement for sale with OP No.1 on 2.1.2015 and agreed to purchase the flat No.B4C in Block C at a consideration of Rs.17,00,000/- and paid Rs.2,00,000/- as part consideration. Further, it is stated that the building has been completed. Complainant requested on 10 occasions to OP to handover the possession and make deed of conveyance, but OPs are not ready and willing to execute the sale deed. So, these OPs have prayed for dismissal of the complaint.

            OP No.1 did not contest the case and so the case is heard ex-parte against OP No.1.

Decision with reasons

            Complainant filed affidavit-in-chief to which OP No.2 & 3 filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire and OPs filed affidavit-in-reply.

Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

               In this regard, there is a Xerox copy of agreement for sale which was executed on 02.01.2015. But, on perusal of this agreement for sale, it appears that this is between Sonia Promoters, Complainant and Sachchidananda Bedi and Hridayananda Bedi. It further reveals that Complainant paid Rs.1,25,000/- by cheque on 19.08.2014 on the date before this agreement was executed between the parties. In the 7^th page the schedule of payment is mentioned. As per this at the time of booking Rs.1,00,000/- was to be paid and along with this agreement at the time of this agreement 20% less booking amount was to be paid i.e. another Rs.1,40,000/- was to be paid on the date of execution of this agreement, which has not been made by the Complainant. Further, it appears that 10% payment was to be made at the time of completion of foundation and similarly on casting of first floor slab 10% and then another 10% for casting 2^nd floor slab, another 10% on casting the 3^rd floor slab and likewise. It appears that power of attorney was revoked in 2016. So, it was the duty of the Complainant to make payment as per schedule. No receipt is filed to show that Complainant paid any money beyond Rs.1,25,000/- after 2015 when the agreement was signed. This reveals that Complainant was aware that the power of attorney may be revoked and so he did not make the payment as per schedule.

            On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for a direction upon OP to execute a registered deed of conveyance in respect of 2^nd schedule flat.

            In this regard, Ld. Advocate for Complainant made vehement argument that his client did not pay the amount due to the fact that power of attorney was revoked. However, surprisingly such argument cannot be accepted as power of attorney appears to be revoked after lapse of about two years of the Complainant making his payment and he did not obey the terms of the agreement for sale.

            As such, we are of the view that Complainant is not entitled to any relief in this regard.

            Since Complainant is not entitled to registration of deed of conveyance, the question of direction upon the OP for handing over possession does not arise and accordingly, the question of awarding of compensation and litigation cost do not arise.

            Hence,

ordered

            CC/603/2016 and the same is dismissed ex-parte against OP No.1 and on contest against OP Nos.2 & 3.