This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OPs1 to 5 are the absolute owner of the two plots of land of premises No.64F and 64G, Belgachia Road, presently known as Kshudiram Bose Sarani, P.S. Ultadanga, Kolkata – 700 037 and said OPs1 and 2 with an intention to construct multi-storeyed building on the said plots of land OPs1 to 5 approached the OP6 for construction of the same as he had his sufficient fund, expertise and workforce to undertake, execute, construct and complete the multi-storeyed building and accordingly a development agreement was entered into by and between the OPs on 27-02-2004 and the same was duly notarized.
As per said development agreement OPs1 to 5 prepared and executed two power of attorney dated 27-02-2004 and 18-02-2006 in favour of the OP6 thereby appointing him as their true and lawful attorney to do or cause to be done all the acts mentioned therein including the act of negotiation with the intending buyers of flats, garage and covered space as specified in the said power of attorney and the said two power of attorneys were duly notarized.
In terms of the agreement dated 27-02-2004 OP6 proceeded to construct G+3 building as per the sanctioned plan No.150(Br.I) dated 18-01-2006 issued by the Kolkata Municipal Corporation.
Fact remains the complainant was looking for suitable apartment to purchase for his family accommodation and he had expressed his intention to purchase and on being informed about the said intention of the complainant OP6 had approached the complainant and offered him one flat at the said multi-storeyed building to be constructed upon the land of the OPs1 to 5.
Complainant was persuaded by the offer made by OP6 and requested the OP6 to handover all the documents pertaining to the said flat for his verification and in response to such request, OP6 vide covering letter dated 09-10-2006 handover all the requisite documents to the complainant for his verification.
Being satisfied with the documents so provided by the OP6 the complainant expressed his intention to purchase a flat measuring about 600 sq. ft on the 1st floor of the said building consisting of two bed rooms, one kitchen, one toilet and one drawing and verandah for a total price of Rs.6 lakhs and accordingly, a sale was executed in between the complainant and the OPs on 14-10-2006 and as per promise complainant paid Rs.2 lakhs vide cheque nos.103259 and 103260 dated 14-10-2006 drawn on United Bank of India, Paikpara Branch and OP6 duly received the same by issuing a receipt to the complainant.
In terms of Clause 2 and 3 of the said agreement the complainant was liable to pay the balance sale price/consideration by 31-10-2008 and on that date OP6 shall have to handover the possession of the flat to the complainant.
Thereafter, complainant at or about month of October, 2008 went to the office of the OP6 to enquire about the construction and for making payment of the balance consideration however, complainant was shocked to know that the said flat in question is not in habitable condition and same is not ready for delivery of possession to the complainant and fact remains OP6 refused to accept any further consideration for that. Subsequently, again complainant visited the office of the OP on a number of occasions but apart from mere verbal assurance no fruitful result was achieved by the complainant and the flat in question was found not competent though complainant performed his all obligation and is willing to perform his remaining obligation in terms of the agreement for same. On the contrary, OP failed to perform his part performance by preparing and plotting the said flat and making it right for delivery of possession to the complainant on receipt of the balance consideration money and no doubt due to failure on the part of the OP6 in providing service to the complainant, complainant has been suffering much and till today he is being deceived by the OP6.
For negligent manner of service and for deceiving the complainant in such a manner and for not performing the obligation on the part of the OP6 complainant was compelled to file this complaint for redressal.
On the other hand, OPs 1 to 5 by filing written statement have submitted that developer Dipak Kumar Mitra was not acting in terms of the aforesaid development agreement and was not proceeding with the construction work as per the development agreement and was entering into the agreement for sale with the proposed purchasers without proceeding with the construction work. So, by a letter dated 25-06-2008 they cancelled the agreement dated 27-02-2004 and revoked and cancelled the General Power of Attorney dated 27-02-2004 and a copy of the said letter dated 25-06-2008 alongwith filed with the written version.
After cancellation of the agreement dated 27-02-2004 the OP1 was compelled to invoke the arbitration clause of the aforesaid agreement dated 27-02-2004 and as such wrote a letter dated 07-08-2008 to the Ld. Arbitrator, S. K. Chatterjee to entire into the arbitration and the Ld. Arbitrator entered into the dispute and upon hearing both the parties published the award on 24-12-2011 and said award dated 24-12-2011 is filed by the OPs1 to 5.
OPs1 to 5 also filed an application u/s.9 of the Arbitration and Conciliation Act, 1996 before the Court of Ld. District Judge at Alipore being Title Suit No.2542 of 2009 and the Ld. Additional District and Sessions Judge, 15th Court at Alipore upon hearing the submission made on behalf of the OPs1 to 5 disposed of the aforesaid case vide order dated 23-05-2011, thereby allowing the case of the OPs1 to 5 ex parte against the OP6 and fact remains OP6 violated the terms and conditions of the Memorandum of Agreement dated 24-02-2004 as such the OPs1 to 5 were compelled to invoke the Arbitration Clause and filed such application before District Judge Alipore.
It is specifically mentioned by the OPs1 to 5 that they are not aware of the alleged agreement dated 14-10-2006 and have not received any money from the complainant and the agreement dated 14-10-2006 was never brought to the notice of the OPs either by the complainant or by the OP6 and complainant has neither approached nor informed the OPs1 to 5 about the alleged transaction and they were not aware of the alleged agreement for sale dated 14-10-2006 and at no point of time complainant had ever communicated with the OPs1 to 5 for possession of the flat.
According to the agreement for sale dated 14-10-2006 the possession of the flat had to be given by OP6 by 31-10-2008 and the complaint was made on 05-09-2014 after about 6 years and in terms of Section 24A of C.P. Act, 1986 present complaint is not maintainable.
It is further submitted that practically there is no agreement between the complainant and the OPs1 to 5 and when no consideration was received by OPs1 to 5 in respect of the sale dated 14-10-2006 it is not binding upon the OPs1 to 5 and in any way OPs1 to 5 never harassed the complainant and never acted any illegal manner and they have their no liability for which the present complaint should be dismissed with the arbitration award is feasible against OPs1 to 5. In the result, present complaint should be dismissed against the OPs1 to 5.
Fact remains OP6 Dipak Kumar Mitra even after delivery of the notice by the postal peon noted otherwise that from the noted address he is moved. So, considering that fact this Forum directed the complainant for a wide publication of the notice and that was published in Sambad Pratidin on 28-11-2014 and after considering the legal notice it is clear that it is published by the order of this Forum and it is duly published and considering that publication it is clear that it is widely circulated and served on other OPs and they are well aware of the fact of the complaint but even then OP6 did not turn up to contest the case for which the case is heard accordingly against him ex parte but against other parties on contest.
Decision with Reasons
After hearing the Ld. Lawyer of both the parties and also considering the award in respect of arbitration proceeding made by Sole Arbitrator S.K. Chatterjee it is clear from the development agreement dated 27-02-2004 that owners OP1 to 5 referred their dispute to Arbitration proceeding and OP6 was party in that proceeding and OP6 did not appear on 27-02-2004 and said agreement and power of attorney were also cancelled and rejected by the arbitrator and OP6 has no right or authority to proceed with any further work and further as per award OPs1 to 5 are entitled to the land including the existing structure with a right to proceed to contract with any other developer under any fresh agreement and that award was passed on 24-12-2011 and in fact that arbitration proceeding was initiated at the instances of the OPs1 to 5 against OP6. So, considering the present construction including the land OP6 has lost his all sort of right and he has no right to sell or to enter into agreement with any person in respect of the present construction and land, when development agreement has been cancelled by Arbitrator and at the same time the power of attorney which was executed by the OPs1 to 5 in favour of OP6 has already cancelled by the Arbitrator and in such circumstances, the present complainant cannot get any relief for getting the plot in his possession because all rights of OP6 what he acquired on the basis of development agreement and power of attorney had already been cancelled and revoked by the Arbitrator for which OP6 has no right title interest or any sort of interest in respect of the present premises. When that is the fact then only the complainant can get relief against OP6, the developer with whom the complainant entered into the agreement and fact remains OP6 only received the money that is advance amount of Rs.2 lakhs out of total consideration of Rs.6 lakhs. But peculiar factor is that in the arbitration proceeding OP6 Dipak Kumar Mitra appeared, prayed for time, thereafter, did not contest that means this OP6 as developer is a renowned cheater in the market and no doubt the complainant had been deceived by the OP6. So, in all respect when the agreement executed in between the complainant and the OP6 on 14-10-2006 has no legal validity at present after the award made by the Arbitrator in respect of the arbitration proceedings in which Dipak Kumar Mitra was a party and OPs1 to 5 were claimants and that has been decided finally in favour of the OPs1 to 5. In the above circumstances, no doubt complainant has suffered much for deceitful act on the part of the OP6 and for which complainant is entitled to get a decree for refund of entire amount of Rs.2 lakhs which was paid on 14-10-2006 to the OP6 and also interest at the rate10 percentover the same with effect from 14-10-2006 and till its full payment by the OP6 including litigation cost on the ground that complainant was compelled to file this complaint to get redressal against OP6 as complainant has been deceived by the OP6.
In the result, the complaint succeeds against the OP6 but fails against the OPs1 to 5.
Hence,
Ordered
That the case be and the same is allowed ex parte against the OP6 with a cost of Rs.10,000/- and the same is dismissed against the OPs1 to 5 without any cost.
OP6, Dipak Kumar Mitra s/o. Late Sankar Lal Mitra is hereby directed to refund the amount of Rs.2 lakhs (already received by OP6 as advance of flat booking) and 10 percentp.a. interest over the said amount with effect from 14-10-2006 and till its full payment to the complainant.
For causing mental pain and suffering and also for deceiving the complainant in such a manner by OP6, OP6 is directed to pay punitive damages Rs.50,000/- to the complainant.
OP6 is hereby directed to comply the order very strictly within one month from the date of this order failing which for non-compliance of the Forum’s order penal interest shall be assessed at the rateRs.200/- per day till full satisfaction of the decree and if it is collected it shall be deposited to this Forum’s Account. Even if it is found that OP6 is unwilling to comply the order or disobeys the Forum’s order in that case penal proceeding u/s.27 of the C.P. Act shall be started against him for which further penalty and fine may be imposed.
