Order No.  38  dt.  12/06/2017

          The case of the complainant in brief is that the complainant entered into an agreement with the o.ps for purchasing a flat on the 4^th floor under construction  measuring 925 sq.ft super built(675 sq.ft built-up area) together with variable impartibly share in the land comprised in the said premises in lieu of the total consideration of a sum of Rs.13,88,500/- Developer got a plan sanctioned  by the Municipal Corporation for construction of a multistoried building  situated at 26A, Hindustan Park, P.S. Gariahat, Kolkata-700029. An agreement between the complainant and o.ps developer was executed on 11.03.2003. The complainant paid the amount from time to time. During the pendency of the said construction work the landowner of the building Nirmala Banik died and the Power of Attorney ceased to exist in favour of the developer. The legal heirs of the deceased landowner failed and neglected to execute and register any deed of conveyance in respect of the several flats pertaining to developer’s allocation by raising the dispute with the developer. The complainant in possession of the flat in question but the due to non-execution of the deed of conveyance by the legal heirs of the original owner of the said land in question, the complainant is facing hardship for which the complainant filed this case praying for the relief has made in the petition of complaint. The o.p. nos.1,3 and 4 have once contested the case as such the case has proceeded ex-parte against them.

          The o.p.2 contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that Nirmala Banik died on 26.12.2002 and how could she enter into an agreement on 11.03.2003, after  the lapse of nearly three months from the date of her death. After the demise of Nirmala Banik the statement regarding execution of a power of attorney by her in favour of the complainant and or concerned in respect of any purpose is absolutely inconsistent and irrevalent Said Nirmala Banik did not authorize and or empower or entrust the developer the o.p.1 to receive any amounts by cash or by cheque for sale of any flat or any operation of the building  in dispute of the said premises from any person and or concerned and or any intending purchaser. On the basis of the said fact the o.p.2 prayed for dismissal of the case.

          On the basis of the pleading of the parties the following points are to be decided :

1. Whether the complainant entered into an agreement with the o.p.1 for purchasing a flat?
2. Whether the complainant paid the entire consideration price ?
3. Whether the legal heirs of the original owners failed to execute Deed of conveyance in favour of the complainant?
4. Whether there was deficiency in service?
5. Whether the complainant will be entitled to get relief?

Decision with reasons: -

       All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

Ld lawyer for the complainant argued that the complainant entered into an agreement with the o.p.1 for purchasing a flat on the 4^th floor under construction  measuring 925 sq.ft. The complainant paid the entire consideration price and she got the possession of the flat in question. During the pendency of the said transaction the original owner of the land being Nirmala Banik died and the power of attorney executed in favour of o.p.1 ceased to exist. The legal heirs of the said Nirmala  Banik failed to execute the deed of sale in favour of the complainant for which the complainant had to file this case. In view of the said fact that the Ld lawyer for the complainant prayed for direction upon the legal heirs of said Nirmala Banik to ececute the deed of sale in favour of the complainant.

          None appears on behalf of the o.p.2.

          On perusal of the materials on record it appears that the o.p.2 raised the point that Nirmala Banik did not execute any power of attorney in favour of o.p.no.1. It was also alleged by the o.p.2 that Nirmala Banik died prior to the date of execution of power of attorney in favour of o.p.1. It was also alleged by the o.p.2 that original owner of the land Nirmala Banik did not give any power of attorney to receive any money on her behalf and therefore the question of purchasing the flat as claimed by the complainant is a manufactured story. Therefore the o.p.2 prayed for dismissal of the case.

          On perusal of the material on record it appears that complainant filed the deed of agreement for sale which she entered into with the o.p.1 It is also an admitted fact that Nirmala Banik was the owner of the land and she executed the power of attorney in favour of developer o.p.1. As per the terms and considerations of the agreement the complainant paid the entire consideration price. It is also admitted fact that the complainant got the possession of flat in question. Though the o.p.2 claim that prior to the date alleged power of attorney executed by Nirmala Banik she expired but the o.p.2 failed to produce any death certificate to substantiate his claim that Nirmala Banik died prior to the said power of attorney. The o.p2 in order to evade his responsibility along with other legal heirs of Nirmala Banik has taken such false plea that Nirmala Banik died prior to the execution of the said power of attorney in favour of o.p.1

           It also appears from the materials on record that the complainant in order to bring all the legal heirs or deceased  Nirmala Banik on record published a notice in daily newspaper  but the legal heirs did not appear. Therefore the case has proceeded exparte against them.

          Since the entire consideration price was paid by the complainant and she got the possession and with the death of Nirmala Banik the power of attorney ceased to exist as such the legal heirs of said Nirmala Banik are duty bound to execute the deed of conveyance in favour of the complainant. Accordingly we hold that the complainant will be entitled to get the relief as prayed for.

Hence, ordered.

          that the case no.372/2011 is allowed on contest against o.p.2 and ex-parte against other o.ps. O.P.nos. 2 to 4 are directed to execute and register deed of conveyance in favour of complainant within one month from this date. O.ps 2 to 4 are jointly and/or severally directed to pay Rs.20,000/- for compensation and litigation cost of Rs.5,000/- within 30 days from the date of communication of this order, i.d an interest @ 10% p.a shall accrue over the entire sum due to the credit of the complainant till full realization.

           Supply certified copy of this order to the parties free of cost.