Order-15.
Date-03/09/2015.
In this complaint Complainant Smt. Swati Mondal Adhikaryby filing this complaint has submitted that complainant intended to purchase one car parking space No.9, measuring more or less 132 sq. ft. super built up area on the ground floor together with undivided proportionate share of land common areas being a part or portion of the ground floor of the said building or apartment named and known as JayantaAloy lying and situated at Premises No. 71/B, South Sinthee Road, P.S.- Sinthee, Kolkata – 30 at a total consideration of Rs. 2,40,000/- and accordingly complainant entered into an agreement for sale with ops on 09.06.2010.
Fact remains that the landowners (op nos. 8 & 9) executed a general power of Attorney on 10.03.2008 empowering at Sri PrasitSaha, Sri Sumit Ghosh, SrabaniSaha, Smt. MithuSaha, Smt. Sharmistha Ghosh, Sri BuddhadebSaha (op nos. 2 to 7) as their true and lawful attorneies and it was also agreed that any 2 of the 6 can sing on their behalf.
As per agreement for sale complainant paid a token money to the op/Developers before execution of the Agreement for Sale in two phases by the cheque being No. 535784 dated 25.11.2009 for a sum of Rs. 50,000/- drawn on State Bank of India, Northern Avenue Branch and another cheque being No. 535785 dated 31.12.2009 for a sum of Rs. 50,000/- drawn on State Bank of India, Northern Avenue Branch and the receipts are also issued by the op.
At the time of execution of Sale of Agreement, complainant paid to the ops a sum of Rs. 1,00,000/-by cheque being No. 582252 dated 09.06.2010 drawn on Allahabad Bank, South Sinthee Branch, Kolkata – 30 and thus complainant paid Rs. 2,00,000/- altogether out of the total consideration of Rs. 2,40,000/- and the remaining part of the consideration Rs. 40,000/- only is payable at the time of registration of the Deed of Conveyance as reflected in the Agreement for Sale.
Complainant again and again asked the Developer/op for execution the Deed of Conveyance and it is registered in her name.But other time op gave false assurance, but practically they did nothing and finding no other alternative, complainant sent commitment notice to Sumit Ghosh/Developer of M/s. New Edifice on 08.05.2013 requesting for registration of the Deed of Conveyance for receiving the balance amount of Rs. 40,000/- and also on the same date i.e. on 08.05.2013 complainant sent a letter to PrasitSaha and BuddhadevSaha Partner/Developer of M/s. New Edifice requesting for registration of the Deed of Conveyance and receipt of the said balance amount and in such a manner complainant again and again requested the ops for registration.But they did not pay any heed and practically harassed the complainant for which complainant lodged a complaint to CA Department, Kolkata-87, Govt. of W.B. on 01.10.2013 and CA Deptt. took initiative and asked the ops for a tripartite meeting which was held on 03.12.2013 but ops did not turn up and no result was achieved for which complainant was compelled to file a complaint for redressal before this Forum.In fact for deficiency and negligent manner of service and for not violation of contractual application on the part of the ops, complainant filed this complaint praying for registration of the Sale Deed or to refund the amount with 18 percent interest p.a. and further compensation etc.
On the other hand even after service of notices upon the ops duly ultimately op nos. 8 & 9 Bankim Chandra Das &Manju Rani Das by filing written statement submitted that complainant has practically suppressed the material facts and in fact those owners/ops never received any amount or no such cheque was deposited in the account of the answering ops and further submitted that no doubt the purported agreement for sale for car parking space dated 09.06.2010 was wrongly executed on behalf of the name of op nos. 8 & 9 without any signature of owners and even without informing the owners and it was executed and motivated by op nos. 2 & 3 violating the terms and conditions of the General Power of Attorney for which the said agreement is nothing but that agreement is binding upon the owners/op nos. 8 & 9.
Moreover considering the illegal acts on the part of op nos. 1 to 7, op nos. 8 & 9 was compelled to revoke the Registration of General Power of Attorney dated 28.04.2012 which was immediately communicated by the op nos. 8 & 9 vide a notice dated 28.04.2012 which was duly received by them on 30.04.2012.So, after 28.04.2012 they had their no legal authority to execute any Sale Deed or any deed on behalf of owners op nos. 8 & 9.
Further it is submitted that alleged Agreement for Sale for car parking space No. 9 had been executed by the op nos. 2 & 3 without informing to the owners and that was made on 09.06.2010 and it is not binding upon the present op and for which the present answering ops have no liabilities and there is no relationship of consumer and service provider in between them and in fact partners of M/s. New Edifice i.e. op nos. 1 to 7 are responsible for such illegal act and in fact the present complaint is not maintainable in the eye of law for which this complaint should be dismissed.
On the other hand op nos. 1, 2, 3, 5 & 6 by filing written statement submitted that for payment of Rs. 2,00,000/- out of total consideration for car parking space shall be paid by the Forum but they denied all the allegations of the Sale Deed or receipt of Rs. 2,00,000/- and there is no question of executed Deed of Conveyance in favour of the complainant on the ground that complainant in fact complainant deliberately neglected to pay the balance consideration amount to the ops within stipulated time with some malafide intention and complainant never requested the ops for registration the Deed of Conveyance and it is false and fabricated statement.
Further it is submitted that ops never falsely issued them executed registration Deed of Conveyance in favour of the complainant because ops several time intimated the complainant that Registration General Power of Attorney vide dated 10.03.2008 which has been accepted by and between the present ops and the op nos. 8 & 9 for purpose of doing all the acts in respect of Sale Deed on behalf of op nos. 8 & 9/owners including registration of flats etc. had been cancelled and revoked by ops for which the Developers have no authority to give proper registration of Deed.
Moreover complainant never approached op nos. 8 & 9 landlords and after rectification of Power of Attorney and in fact complainant with bad intention filed this complaint to harass op nos. 8 & 9 and also other ops because law does not permit the present op to execute the Deed of Conveyance for car parking space in favour of the complainant and considering the complicated position, the present answering ops already filed Title Suit for declaration and permanent injunction and mandatory injunction relating to the entire project including the disputed car parking space against the op No. 8 & 9 being the Title Suit No. 63/2014 still pending before the Ld. Civil Judge (Jr. Divn.) 3rd Court at Sealdah and in the Title Suit the said court has passed an interim injunction order on 11.02.2014 directing both the parties to maintain status-quo with regard to possession of the suit property and said ad interim is still continuing.
It is specifically stated that the present answering ops have no intention to harass the complainant so to mitigate the problem they have taken appropriate step till disposal of this caseby filing the said Title Suit vide No. 63/2014 which is still pending before the Ld. Civil Judge (Jr. Divn.) 3rd Court at Sealdah not able to execute any deed and when Civil Suit is pending, there is no scope to consider the grievance this Forum.
Moreover complainant has also failed to pay the balance consideration money of Rs. 40,000/- within stipulated period and without performing her liability the complainant cannot seek any relief as because it is also well settled law that if the complainant herself committed the default for making payment then the op was not under an obligation to hand over the possession of the suit property.
In fact the entire dispute has been cropped up between the op/developers due to illegal activities of the land owners and for which developers are in stalemate condition and landowners have not co-operated the Developers for which they are under in a position to execute the Sale Deed and there is no deficiency on the part of the present answering ops and in the above circumstances, they have prayed for dismissal of this case.
Decision with reasons
On an in depth study of the complaint and written version and also considering the argument as advanced by and on behalf of the both parties and further considering the evidence of op no.1 (submitted on 04.08.2015) it is found that op no.1 in his evidence in para-12 has admitted that they are reputed developer and they completed the entire construction work/building as per sanctioned plan of K.M.C. obtained from the then Corporation within stipulated time and they are ready and willing to make appropriate Deed of Conveyance in respect of disputed car parking space in favour of the complainant subject to payment of balance consideration price of Rs. 40,000/-.
But as because they have no Power to register the Deed of Conveyance in respect of the said car parking space in favour of the complainant.They cannot do the same as per provision of law and law does not permit them to register such a Deed in respect of the car parking space because in the meantime the Power of Attorney as granted by the landowners had already been cancelled and already there is an injunction order passed by the Ld. Civil Court.
Considering the said evidence of the op no.1, it is proved that complainant entered into an agreement for sale dated 09.06.2010 and from the document filed by the complainant, it is proved that complainant already paid Rs. 2,00,000/- out of total consideration of Rs. 2,40,000/- of the said car parking space of No.9 of the said Apartment.So, there is no doubt to hold that Agreement was executed on 09.06.2010 and in this regard we have gone through the agreement dated 09.06.2010 and it is found that at that time they have their power to execute the Agreement to Sale and Swati MondalAdhikary executed the same to PrasitSaha and Sumit Ghosh also signed on behalf of the M/s. New Edifice and complainant also paid Rs. 2,00,000/- and as per agreement, it is specifically mentioned that balance Rs. 40,000/- shall be paid on or before delivery of possession and or registration of the deed of conveyance whichever is earlier.
Op no.1 in his evidence admitted that balance amount is Rs. 40,000/- and question of payment by the complainant will arise after possession is delivered or registration of the deed of conveyance is made whichever is earlier but both the matters had not yet been matured in view of the fact that ops have not handed over the possession or has not executed any registration of Sale Deed.So, question of payment of Rs. 40,000/- does not arise by the complainant in the eye of law that means ops have failed to perform their part performance as per agreement clause.
But it is proved fact that Power of Attorney of the Developer has already been cancelled by the landowners and in this regard there is a pending Civil Suit amongst the ops.So, in the eye of law Developer has no legal right to execute any Sale Deed.
Moreover in respect of entire project, there is an injunction order because Developer and other partners filed a suit against land owners and a status-quo order was passed by the Civil Court in the said Title Suit, but complainant is not a party in the same.
In the above situation we are confirmed that maturity of the Agreement is under shadow, complications are still in existence and one cannot say when the matter shall be disposed of and when the Developer shall have to get power to execute the Sale Deed.Truth is that in the above legal fiction and situation, this Forum cannot direct the ops to handover the possession or execution the Sale Deed.But alternative prayer of the complainant for refund of Rs.2,00,000/- deposited by the complainant to the ops/Developer as advanced against the agreement can easily be considered in view of the fact, the Developers received the money, so Developer must have to return the same along with interest including the landowners because at the time of execution of the said Agreement, the Sale Deed dated 09.6.2010 PrasitSaha, Sumit Ghosh had their registered Power of Attorney to execute the Deed on behalf of the landowners also and the Power of Attorney was executed on 10.03.2008 being Deed No. 1365/2008 whereas the Agreement of Sale was executed on 09.06.2010, but the said Registered General Power of Attorney dated 10.03.2008 had been revoked on 28.04.2012.Then it is clear that Agreement for Sale is/was followed in the eye of law as being removed General Power of Attorney dated 10.03.2008, the Developer executed the same on behalf of the owners also.So, owners are also liable for execution and registration of the Sale Deed.
But in the present position and for legal fiction it is not possible for the owners to execute any sale deed.But we are convinced to hold that the entire money was received by the op no.1 and their 2 partners Sumit Ghosh, PrasitSaha and for which they are liable to refund the entire amount of Rs. 2,00,000/- when the op nos. 1 to 7 have failed to deliver the possession of the said car parking space and also failed to execute the Sale Deed due to legal fighting of developers and landowners and for their legal fighting invariably the purchaser must not have to wait for the result though purchaser/complainant is not a party in that proceeding and in the above situation there is only relief which will be nothing but to direct the op nos. 1 to 7 to refund the secured amount of Rs. 2,00,000/- with interest at the rate of 8 percent p.a. over the same and that interest shall be calculated from the date of 09.06.2010 till its full payment and in this regard no doubt op nos. 8 & 9 the land owners have no liability because as per Development Agreement, car parking space falls within the allocation of the developers.So, only the developer nos. 1 to 7 are liable to pay or refund of the said amount along with such interest w.e.f. 09.06.2010 and till its full satisfaction and also litigation cost for harassing the complainant in such a manner and further for adopting such path and manner of running such a Housing Construction Business, complainant is also entitled to some compensation also from the op nos.1 to7.
In the result this complaint succeeds in part.
Hence it is,
Ordered,
That the complaint be and the same is allowed on contest against op nos. 1, 2, 3, 5 & 6 with a cost of Rs. 10,000/- and same is dismissed on contest without any cost against op nos. 8 & 9 and same is also dismissed against op no. 7 exparte without any cost and same is allowed exparte against op no.4 but without any cost.
Op nos. 1 to 6 are jointly and severally are hereby directed to refund and repay a sum of Rs. 2,00,000/- which had been received by the said ops as advanced amount for selling the car parking space to the complainant on 09.06.2010 and further shall have to pay interest over the same w.e.f. 09.06.2010 and till its full payment to the complainant by the present ops.
For causing mental and suffering and also for adopting such sort of deceitful manner of business and prayed ops jointly and severally shall have to pay to a sum of Rs.15,000/- to the complainant as compensation.
The entire amount as awarded in favour of the complainant must be paid by the present ops within one month from the date of this order failing which for non-compliance of the Forum’s order and also for disobeyance of the Forum’s order, ops shall have to pay further penal damages at the rate of Rs. 200/- per day till its full satisfaction of the decree and of it is collected, it shall be deposited to this Forum.
Even if it is found that ops fail to comply the order, in that case ops shall be prosecuted u/s 25/27 of C.P. Act 1986 for which further penalty and fine shall be imposed against them.
