Order-18.
Date-23/02/2016.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OPs 1 to 6 are the joint owners of the land measuring situated at 53A, Paik Para Row, P.S. Chitpore, Kolkata – 700 037 within the jurisdiction of Kolkata Municipal Corporation.
OPs 1 to 6 purchased the said land with dilapidated structure from Smt. Sondha Mondal, Biswajit Mondal, Kumari Sujata Mondal, Smt. Mousumi Das and Smt. Sabita Mondal and thereafter demolish the old structure for construction of a multi-storied residential building.
OPs 7 to 11 was the previous owner of the land along with dilapidated structure lying and situated in the said premises.
OP12 namely Shri Prasanta Sengupta is the sole proprietor of Gupta-N-Gupta residing at Premises No.129, Jeshore Road, Kolkata – 700 074 entered into Development Agreement in the name and style of Gupta-N-Gupta for making construction of multi-storied building of the land of the premises No.53A, Paikpara Row, P.S. Chitpore.
Complainants Sudip Debnath and Rakhi Debnath entered into an Agreement of Sale on 04-08-2010 for purchasing a self-contained flat measuring about 800 sq. ft. including super built up area consisting of two bed rooms, one kitchen, two bath rooms and one dinning cum drawing room on the 2nd floor of the building to be constructed at the case premises at a total consideration of Rs.1,44,000/- when OPs7 to 11 were the joint owners of the land including the dilapidated structure of the premises and OP12 Prasanta Sengupta who was the developer and entered into development agreement Gupta-N-Gupta.
Pursuant to the terms and conditions of the Agreement to Sale dated 04-08-2010 complainants paid a sum of Rs.4 lakhs as advance or part payment in respect of the self-contained flat and as per terms and condition of the said agreement to sale dated 04-08-2010 complainants contacted the developer as well as the owners of the land those who are advised them to wait till to the start of the construction work but after waiting from 2010 complainants found the construction work is started after demolishing old structure on the land but complainant never intimated about the remarkable change developers and owners in respect of the said land.
Subsequently complainant contacted the OPs who advised to take step to proceed further in according their choice in respect of their self contained flat and complainants were already ready to pay the balance consideration money and always agreed to execute and register the sale deed of the flat but OP has drove away without giving any relief and with a view to make wrongful gain sell out the said flats and garage at a higher consideration and complainants reasonably apprehend that the OPs shall make a new agreement for sale the above stated flat and trying to deprive the complainants from legal right for which complainants are seeking protection before this Forum for adopting unfair trade practice and for harassing the complainant in such a manner and in the above circumstances, complainant has prayed for redressal.
On the other hand OPs 1 to 6 by filing written statement submitted that they have knowledge about the said agreement to sale dated 04-08-2010 though the development agreement dated 021-11-2009 was executed in between Prasanta Sengupta and the erstwhile owner he miserably failed to obey the terms and conditions of the said agreement as a result of the same said development agreement was cancelled and OPs 1 to 6 already stated the said fact and as a matter of fact said Prasanta Sengupta did not take any step of the said agreement dated 02-11-2009 nor he obtained sanctioned plan for construction over the land even he did not apply for the same before the concerned Kolkata Municipal Corporation ad in such a situation it is difficult to say how the complainants entered into an agreement for sale on 04-08-2010 for purchasing the said flat on the 2nd floor and at the time of alleged agreement for sale between Prasanta Sengupta and the complainants there was no sanctioned plan for the premises in question, so the agreement dated 04-08-2010 is suffering from uncertainty and defect.
It is specifically mentioned that OPs1 to 6 at the time of purchasing the entire premises found that there was so many tenants occupying the said premises and considerable amount was paid to vacate the premises of the tenant with a condition that after demolishing the old structure start new construction after obtaining sanctioned plan and for which a lot of money invested by OPs1 to 6 but they are not the developer and they did not raise the construction for any commercial purpose rather they undertook the construction work for their own accommodation by expending their hard earning money. But only to extract money from the OPs complainant filed this false and frivolous complaint.
Further it is submitted that complainants are stranger to them and there is no privity of agreement between the complainants and the OPs 1 to 6 so the question of receiving the amount and handing over the possession does not arise and in fact, there is no relationship in between the complainant and OPs 1 to 6 as consumer and service provider as there is no contract between them on the sale of flat.
On the other hand OP11 by filing written statement submitted that the complainant failed to strictly adhere to the payment schedule as mentioned in Clause 2 of the sale agreement dated 04-08-2010 and he was required to pay an amount equivalent and aggregating to Rs.10 lakhs by the month of August, 2011 and the complainant paid only Rs.4 lakhs so, complainant himself is at fault in having committed breach of the sale agreement so he cannot pray for any benefit. Further complainants’ own agreement speaks that he wanted to purchase a flat out of developers allocation but the said development agreement is not forthcoming for obvious reasons best known to the complainant and the averment in the complaint also indicate that complainant was aware of the change of ownership in respect of premises No.53A, Paikpara Row, P.S. Chitpur, Kolkata – 37 for which he has referred the OPs 7 to 11 as the previous owners but neglected and failed to mention when the change of ownership took place and how and when he came to know about the said change of ownership and about payment of part consideration of the alleged agreement OP11 was not aware and entire transaction was made between the complainant and the OP12 so there is no privity of contract between the complainant and the OP11. Further it is submitted that complainant without proper verification of the necessary papers pertaining to the property through an experienced person in the field and without ascertaining the authority of the developer to enter into a sale agreement with him had willfully entered into a sale agreement with the OP12 and may be they have paid the part consideration money for that OP12 is responsible not the OP11 liable. In the complaint complainant has admitted that OPs1 to 6 are the present owner of the Premises 53A, Paikpara Row, but it is not correct at this stage when complainant has admitted that OPs 1 to 6 are the previous owners and their names are mutated and OPs1 to 11 are previous owner then without any reason OPs1 to 11 are made parties when they have their no interest in the present premises. Further more on the basis of the cancellation fo the development dated 12-01-2012 OP12 has no right in respect of the property so entire complaint is false and fabricated and for which the complaint should be dismissed.
Decision with Reasons
On an indepth study of the complaint and the written versions further relying upon the documents filed by the parties and particularly the agreement to sale dated 04-08-2010 it is found that the agreement to sale was executed by Prasanta Sengupta on behalf of Gupta-N-Gupta as proprietor and in the said agreement to sale complainants also signed as intended purchasers and names of landlords of the premises are also noted as Smt. Sandhya Mondal, Sri Biswajit Mondal, Kumari Sujata Mondal, Smt. Mousumi Das and Smt. Sabita Mandal and from that agreement it is found that that agreement was actually executed in between the complainants and its developer Prasanta Sengupta proprietor of Gupta-N-Gupta but on behalf of the owners OP12 signed in the said agreement to sale not as constituted power of attorney holder of the owners that is OPs7 to 11 so, considering that fact as per agreement complainant intended to purchase the allocation part of the then developer Prasanta Sengupta, proprietor of Gupta-N-Gupta but by that agreement the OPs7 to 11 the previous owner cannot be liable for implementing the said agreement.
Complainant has already admitted in his complaint that the entire property that is the premises had already been transferred by the previous landowners OPs7 to 11 to OPs 1 to 6 so it is admitted position that OPs1 to 6 had the actual owner of the premises on the basis of the registered sale deed dated 27-01-2012 and considering that sale deed as produced by the OPs1 to 6 it is clear that Ranjit Poddar, Manjit Poddar, Indrajit Mitra, Abhishek Guha Mallick, Sharmistha Pal and Swapna Ghosh are the present owners of the premises. So, automatically the development agreement which was executed in between or amongst OPs7 to 11 has no legal force in the eye of law. At the same time it is proved that the said development agreement amongst the OPs 7 to 12 had already been cancelled and that cancellation was made on 12th January, 2012 and developer also executed the said development agreement by signing when that is the fact then OPs 12 the previous developer has lost his all legal authority to sell any portion of the present case premises to anyone. So, considering that fact it is clear that OP12 Prasanta Sengupta is legally bound as per agreement to refund the entire consideration amount of Rs.4 lakhs and it is admitted by the other OPs that it was received by the developer OP12 but OP12 has not appeared in this case to contest knowing fully well that he has no interest in respect of the property when development agreement is already cancelled so, under any circumstances, the said agreement dated 04-08-2010 cannot be implemented against OPs1 to 11 and admitted position is that OPs 7 to 11 have no interest in the premises and owners are only OPs1 to 6 but after cancellation of the said development agreement amongst OPs7 to 12 complainants cannot claim to implement the present agreement to sell in respect of flat but legally entitled to get back the entire amount from the OP12 who received it as a developer. No doubt it is clear that there was some obligations for which developer OP12 failed to construct the construction and left the project when cancellation of development agreement was executed but he already received huge amount from different intended purchasers like complainant for the purpose of his own development business but on proper consideration of the material and fact we are perforced compelled to come to a conclusion that only the complainants are entitled to get relief against OP12 who did not discharge his liabilities, responsibilities as per agreement to sale dated 04-08-2010. No doubt some unfair trade practice was practiced by the OP12 and also the owners what we are observing and only to save their skin they adopted such procedure and cancelled the said agreement of development and sold the property to the present OPs1 to 6 in disguise but we cannot pass any order against OPs 1 to 11 but anyhow it is proved that OP12 as developer has thrown the complainants on the street and, in fact, grabbed the amount for profit investing it some in his some other business and as per law the deficiency, negligence is found on the part of the OP12 so OP12 is liable to pay the entire amount of Rs.4 lakhs including 10 percent p.a. interest over the said amount with effect from 04-08-2010 and till its full payment to the complainants and also for harassing the complainant in such a manner and further for adopting unfair trade practice OP 12 shall have to pay a compensation to the extent of Rs.1 lakh also to the complainant.
For adopting unfair trade practice and also for deceiving the complainant and other purchasers in such a manner and to control the same a penal damages to the extent of Rs.1 lakh is imposed against OP12 and OP12 shall have to pay it to this Forum.
OPs 12 shall have to comply the order of the judgement but against OPs1 to 11 complaint is not tenable for which it fails aginst them but it succeeds against OP12 only.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed ex parte against OP12 with a cost of Rs.10,000/- and dismissed against OPs1 to 11 without any cost.
OP12 is hereby directed to refund and pay the entire amount of Rs.4 lakhs to the complainant and also 10 percent p.a. interest over the same with effect from 04-08-2012 and till its full payment within one month from the date of this order.
OP12 is also directed to pay compensation of Rs.1 lakh to the complainant for harassing the complainants and also for deceiving the complainant in such a manner.
For adopting unfair trade practice and to deceive the complainant including the other purchasers in such a manner OP12 is imposed penal damages of Rs.1 lakh and it is imposed to control the deceitful manner of trade as adopted by OP12 and if it is collected it shall be deposited to this Forum within one month from the date of this order.
OP12 is hereby directed to comply the order within the stipulated period of time and in default penal action u/s.25 read with Section 27 of the C.P. Act shall be started against them for which further penalty and fine shall be imposed.
