JUDGEMENT

          Complainant MahadevBramha by filing this complaint has alleged that op no.1 the Developer had been constructing a multi storied building situated at 42A, Hara Mohan Ghosh Lane, Calcutta-700085 after demolishing the old structure thereon on the basis of Development Agreement amongst the ops and at the same time op nos. 02 to 26 executed a power of attorney in favour of the op no.1 the Developer to undertake the construction of the job and the other related purpose in respect of that effect.

          Complainant as intended purchaser contacted with the op no.1 for purchasing a flat as described in the schedule of this complaint out of the said premises under construction and total consideration was fixed Rs.1,50,000/- and accordingly it was agreed that out of the total consideration of the shop of Rs.65,000/-would be paid by the intended purchaser to the vendor developer after making brick walls, plastered and floor marble and another Rs.10,000 shall be paid by the purchaser to the developer vendor at the time of internal decoration and the balance amount of the consideration shall be paid by the purchaser to the developer at the time of delivery of possession of the said shop to the purchaser and accordingly complainant entered into an agreement with the ops on 18.12.2005 and accordingly as per agreement, complainant paid Rs. 1,00,000/- in total in between 08.12.2005 to 18.07.2006 in respect of the shop on the Ground Floor of the Five storied building at Premises No. 42A, Hara Mohan Ghosh Lane, Kolkata-700085 but even after such payment no agreement was executed by the op no.1 himself and on behalf of the other land owners and also did not complete the construction of the building and did not handover the possession of the shop after receiving the part amount and also did not act as per advance payment up to 18.07.2006.  Though complainant repeatedly requested the op no.1 for completion of shop room and for construction of the said multi storied building and to hand over sanctioned plan and possession of the flat but op did not pay any heed to that and did not discharge his liability.  So, in the above circumstances, complainant has prayed for relief.

          Fact remains notices were served upon all the ops but only op nos.-5, 13 to 15 and 19 to 22 filed written statement and submitted that practically no registered power of attorney was executed in favour of the op no.1 by the op nos. 02 to 26  and no registered power of attorney was given to the op no.1 for the said housing project and fact remains the building was not completed by the op nos.1 and has also failed to give the possession of finished flat and when the op nos. 02 to 26 entered into the unfinished said shop and somehow or otherwise completed some portions to some extent to make it habitual condition by spending more money from their fund and fact remains the whole housing project is not completed by the op no.1 as yet.

          Further op nos. 02 to 26 had never entered into agreement with the complainant and op no.1 has no power to execute any such deed because op nos. 02 to 26 never received such amount from any intended purchasers and fact remains the total project if it is required to be completed at least Rs. 1,00,00,000/- is required.  The developer has left the field and the op nos. 02 to 26 have no knowledge about such agreement or receipt of amount by op no.1 and it is further alleged that op nos. 02 to 26 never received any amount either from the intended purchaser or from the present complainant for the alleged agreement and in fact op nos. 02 to 26 have no knowledge about any agreement in between the complainant and op no.1 and they have stated that they have their no liability and practically the complainant is not entitled any relief in view of the fact that no authority was executed by the op nos. 02 to 26 in favour of the complainant in respect of the alleged agreement to sale.  So, the complaint should be dismissed.

Peculiar factor is that op no.1 received of the notices of the complaint but did not appear to contest.  Though the op no.1 got such scope to defend the allegation of the complainant and in the above situation the case has been heard against op no.1 exparte.  But case is taken up for final decision on the basis of the materials on record including on the basis of defences of the aforesaid ops.

Decision with reasons

On in depth study of the entire complaint and the vital documents receipts dated 08.12.2005 to 18.07.2006 issued by the op no.1, it is found that receipts were issued by op no.1 and fact remains that there is no signature of the op nos. 02 to 26 in the said receipts.  But anyhow from the said document, it is found that op no.1 signed in the said document also and it is also fact that op no.1 received Rs. 1 lakh in total out of total consideration.  But the moot question is whether the alleged taking of advance for valid paper to sale in between the complainant and all the ops.  In this regard, we have gone through the vital document the power of attorney upon which the complainant also relied and complainant’s version is that op no.1 as constituted power of attorney of the landowners 02 to 26 executed the agreement to sale and received the money.  But in this regard we have gone through the said power of attorney executed by the op nos. 02 to 26 in favour of the op no.1 but that power of attorney is neither registered nor does it have his any legal value in the eye of law,in view of the fact that it was a General Power of Attorney.  But as per provision of Indian Registration Act, the power of attorney if it is General Power of Attorney it must be registered by the persons who empowered anyone to execute the deed of sale and to receive money on behalf of the vendors.  But unfortunately the said General Power of Attorney dated 20.01.2003 is invalid in the eye of law and as per mandatory provision of the Indian Registration Act as specified in Section-32 to 36 and when that is the fact, then it can safely be said that op no.1 the developer had no legal right to transfer or to execute any deed of sale or agreement to sale or any lease deed or any other deed of conveyance on behalf other land owners op nos. 02 to 26.  But anyhow without obtaining a valid and registered General Power of Attorney from the op nos. 02 to 26 the op no.1 invariably without any authority entered into an agreement to sale with the complainant on 19.06.2004 for sale of one flat as already stated above.

          So, in the eye of law in any circumstances, op nos.02 to 26 is not liable for execution of such an agreement to sale by op no.1 in favour of the complainant. Fact remains in the eye of law the said agreement to sale dated 19.06.2004 is not binding upon op nos. 02 to 26 and it is also proved that there is no such material to show that op nos. 02 to 26 received any money from the complainant in respect of alleged paperto sale dated 08.12.2005 and for which no order can be passed relying upon the paper sale dated 08.12.2005 against O.Ps.-2 to 26.  We can say without any hesitation that op no.1 is liable to discharge his liability as per paper sale dated 08.12.2005 when it is proved beyond any manner of doubt that op no.1 received Rs. 1,00,000/- out of total consideration.

          But truth is that as it is admitted by the complainant that the said shop had not been completed by the op no.1 and it is also fact that op nos. 02 to 26 the owners of the land did not get delivery of the possession of their allocated portion after completion and for which they were compelled to take possession of incomplete flats and they have been residing after doing certain work to make it habitable.  So, it is proved that complainant did not get possession of the flat and entire flat building is still incomplete and op no.1 left the said flat without completion.  So, in the circumstances it is proved that there is no scope to hand over possession to the complainant by any means whatsoever and another factor is that out of Rs.1,50,000/- complainant has paid only Rs.1,00,000/- 

          Further fact is that paperto sale is not a valid paper in between the parties in this case.  At best that agreement is binding upon the op no.1 but not upon the op nos. 02 to 26.

          In the above situation we are convinced to hold that as per settled principal of law complainant may get the said amount of Rs. 1,00,000/- back what had been paid to the developer op no.1.  But complainant is not entitled to get any other relief for getting possession or for getting registered deed of sale because the op nos. 02 to 26 never handed over any registered General Power of Attorney in favour of the op no.1 and for which op no.1 have no legal right to enter into agreement on behalf of the op nos. 02 to 26 with the third party intended purchasers.

          In the light of the above observation we are convinced to hold that the said agreement to sale is not valid in the eye of law and for which the complainant is not entitled to get any relief for directing the ops to execute the sale deed or to hand over possession and also on the ground that since 2007 and till filing of the complaint, complainant did not send any letter to the op for accepting the balance consideration and for completion of the said flat and for which the complainant is entitled to get refund of Rs.1,00,000/- with interest @ 8% p.a. over the said amount since 18.07.2006 and till full payment of the same by op no.1 and to that effect the final order can be passed against op no.1 by dismissing this complaint against the op nos. 02 to 26.

          In the result, the complaint succeeds in part.

          Hence, it is

ORDERED

That the complaint be and the same is dismissed on contest without any cost against the op nos. 02 to 26 but same is allowed exparte against op no.1 with a cost of Rs.10,000/-.

          Op no.1 is hereby directed to refund Rs.1,00,000/- (booking amount what had been received by the op no.1 from the complainant) and also interest @ 8% p.a. over the said amount since 2006 and till full payment of the same by the op no.1 to the complainant.

          For harassing the complainant by so many manners and for deceiving the complainant by the op no.1 and for adopting unfair trade practice, the op shall have to pay a sum of Rs.10,000/- as damages to the complainant for causing harassment, financial loss and mental pain and agony.

          Op no.1 shall have to pay a sum of Rs.50,000/- as punitive damages for adopting unfair trade practice as an developer and for deceiving so many ways including purchasers in such a manner and to protect such sort of future activities this punitive damages is imposed and if it is collected it shall be deposited to State Consumer Welfare Fund.

          Further op no.1 is directed to comply the order very strictly within one month from the date of this order failing which for each day’s delay op no.1 shall have to pay penal interest @ Rs.300/- per day till full implementation and status of the present decree and even if it is found op no.1 is trying to disobey the Forum’s order in that case penal proceeding shall be started against O.P.-1 u/s 27 of C.P. Act 1986.