DATE OF FILING : 10.4.2014.
DATE OF S/R : 20.5.2014.
DATE OF FINAL ORDER : 31.12.2014.
Tapas Kumar Nag,
son of late Dasharathi Nag,
resident of 49/1, Shibpur Road, P.S. Shibpur,
District Howrah.……………………………………………………… COMPLAINANT.
Versus -
Partho Bera,
son of Prasanta Bera,
resident of 75/2, Sarat Chatterjee Road, P.S. Shibpur,
District Howrah…… …………………………………………………OPPOSITE PARTY.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
- The instant case was filed by complainant U/S 12 of the C.P. Act, 1986 wherein the complainant has prayed for direction upon the o.p. to execute and register proper sale deed in his favour with respect to the suit shop room and to pay Rs. 1,00,000/- as compensation together with litigation costs as the o.p. in gross violation of the agreement dated 06.06.2005 and in spite of delivery of possession of the same shop room and receiving Rs. 35,000/- out of total consideration amount of Rs. 57,750/- did not execute and register the deed of sale.
- The o.p. in their written version stated that the owners have revoked the power of attorney granted to him and that the complainant did not pay the balance amount.
3. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.P. ?
- Whether the complainant isentitled to get any relief as prayed for ?
DECISION WITH REASONS :
- Both the points aretaken up together for consideration. The agreement dated 6th June, 2005 unerringly reveals that the o.p. agreed to sell a shop room measuring 105 sq. ft. as mentioned in the schedule to Dasarathi Nag and his son Tapas Nag at a consideration of Rs. 57,750/- out of which the complainant admittedly paid Rs. 35,000/- as advance. As subsequently the father of the complainant expired on 02.5.2012, the complainant is now the sole proprietor of the business Laxmi Bhandar. Dasarathi during his life time transferred the said business in favour of the complainant.
- The possession of the said shop room though delivered on 06.6.2005, the o.p. has been deferring the execution of registration on the plea that the owner of the plot has revoked the power of attorney granted to him on 02.3.2005.
- On scrutiny of the power of attorney granted by the owner, we see that the same is still in force since clause 9 and 16 of the Power of Attorney shall remain in force and irrevocable till completion of the proposed building as per agreement dated 02.3.2005 till completion of sale of the agreed share of the promoters. It is, therefore, evident from the record that interest created in favour of the developer i.e, the o.p. is irrevocable and is within the purview of Section 202 of the Indian Contract Act. Accordingly we are of the view that alleged revocation of the power of the o.p. has no force in the eye of law with respect to the instant case.
- The o.p. has already received Rs. 35,000/- from the complainant out of the total consideration of Rs. 57,750/- remaining balance being Rs. 22,750/-. This is, therefore, a fit case where the prayer of the complainant shall be allowed. Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 199 of 2014 ( HDF 199 of 2014 ) be and the same is allowed on contest with costs as against the O.P.
The O.P. be directed to execute and register proper sale deed in favour of the complainant with respect to the shop room as mentioned in the schedule after receiving the balance amount of Rs. 22,750/- within 30 days from the date of this order.
The o.p. be further directed to pay a sum of Rs. 5,000/- as litigation costs.
No order as to compensation.
The complainant is at liberty to put the decree into execution after expiry of the appeal period.
Supply the copies of the order to the parties, as per rule.
DICTATED & CORRECTED
BY ME.
( T.K. Bhattacharya )
President, C.D.R.F., Howrah.
