Shri B. Mukhopadhyay, President.   

This is an application u/s.12 of the C.P. Act, 1986.

            Complainant by filing this complaint has alleged that he wanted to purchase one flat at a total consideration of Rs.8,50,000/- from the OPs and from the housing project constructed by developer OP6 on the basis of the agreement in between the OPs1 to 5 and 6 and that flat is on the third floor measuring about 700 sq. ft. at Premises No.54/1R, Sura East Road, P.S. Beleghata, Kolkata – 700 010 and to that effect the agreement to sale was executed by the OPs in favour of the complainant on 06-11-2004 and on the date of agreement complainant paid Rs.1,00,000/- out of the total consideration amount and there was a clause that within 18 months from the date of execution of the agreement to sale dated 06-11-2004 the possession of the flat shall be handed over to the complainant.  And, thereafter, complainant paid total consideration to OP6 the developer and ultimately possession was delivered to the complainant but sale deed has not been executed.  Thereafter, on several occasions complainant asked the OP to execute sale deed but lastly they refused and also OPs tried to create an obstruction to enjoy the facilities and amenities of the scheduled premises.  And in the circumstances, complainant for negligent and deficient manner on the service of the OPs prayed for directing the OPs to execute the sale deed and to ask the OPs not to disturb the complainant’s for possession and for compensation.

            On the other hand, OP6 Pradip Sabui by filing this complaint has submitted that he is helpless to perform and to fulfill his contractual obligation, in spite of his best effort to the complainant as per terms of the agreement for sale dated 06-11-2004 on the ground that the vendors i.e. OPs1 to 5 the landowners cancelled the power of attorney what they executed to dispose of the share of flat in the suit premises and without any cogent clause and reason and it was done by OPs1 to 5 but they cannot avoid their contractual obligation as per development agreement dated 29-05-2003 and fact remains for the laches and negative attitude of the owners OPs1 to 5 the sale deed could not be executed but OP6 was and is always ready to fulfill its practical obligation as per terms and agreement to sale dated 06-11-2004.

            Whereas OP4 Sukumar Malakar has submitted that he is always willing and ready to execute sale deed in favour of the complainant but OPs 1to 3 and 5 are not willing to do that and the power of attorney of the OP6 has been seized by OPs1 to 3 and 5 and for which the complication has been arisen and this turmoil situation has been created by OPs 1to 3 and 5 only and in the circumstances he has submitted that he has no fault in this regard.

Decision with Reasons

After giving a minute attention to search out the grievance of the complainant and also to search out the reason for non-execution of the sale deed and this registration by the OPs as claimed by the complainant when it is undisputed fact that complainant has paid the entire amount to the OP6 (as developer) and it is evident from the OP6 version that he is always to ready to perform it but power of attorney has been cancelled by the OPs1 to 3 and 5 and for which the turmoil has been created and that is also admitted by the one of the landowners the OPs who has filed written objection in this case. 

            In this context we have gone through the entire record and we have gathered that the entire terminal situation has been created by the OPs1 to 3 and 5 and they are landowners but one landowner OP4 did not cancel the power of attorney but it is settled a principle of law that a power of attorney if executed by many persons and if anyone cancels it then the power of attorney has no legal force in the eye of law and in this case fact remains power of attorney which was executed by the OPs1 to 5 jointly in favour of the developer OP6 has been cancelled by four landowners OPs1 to 3 and 5 and truth is that they are not willing to execute the sale deed for some reasons or otherwise.  But it is fact that OP4 one of the landowners has supported the contention of the OP6(developer) that OPs1 to 3 and 5 only to harass and create stalemate condition cancelled the power of attorney for which situation is now very grave and, in fact, OP6 has no power to execute any sale deed or register the sale deed.

            Another factor is that OP4 and OP6 through they are willing to execute and register the deed but by their execution and registration of the deed cannot be a complete deed.  But we have gathered that fault is on the part of the OPs 1 to 3 and 5 and they have created barricade so the OPs 4 and 6 cannot execute the Deed of Conveyance in favour of the complainant.

            Taking into consideration the above materials we are confirmed that only for the laches and negative attitude of the OPs1 to 3 and 5 as yet OP6 or 4 have failed to execute the deed and in the above consequences we find that complainant is entitled to get the deed executed and registered by the OPs and if any obstruction is found in the way of execution and registration of the deed in that case it shall be registered through this Forum on the basis of the application of the complainant.  Accordingly, the complaint succeeds.

Hence,

Ordered

That the complaint be and the same is allowed on contest without any cost against OPs 4 and 6 but same is allowed ex parte against OPs 1 to 3 and 5 with a cost of Rs.10,000/-(Rupees Ten thousand only).

            OPs are jointly and severally directed to execute and register the sale deed in respect of the described scheduled properly of the agreement to sale dated 06-11-2004 within one month from the date of this order and in this regard complainant shall have to take all such positive step for preparing it by purchasing stamp etc. and if OPs failed to comply the order in that case the complainant shall have to pray for execution and registration of the sale deed in respect of the case flat through this forum in favour of the complainant and in that case OPs 1 to 3 and 5 shall have to pay a service charge for execution and registration of the sale deed to the extent of Rs.10,000/-(Rupees Ten thousand only) which shall be deposited to the State Consumer Welfare Fund but all process for execution fee or registration fee as assessed by the registering authority shall be paid by the complainant but the Forum shall process the entire execution and registration after completion of one month from the date of this order if OP jointly failed to do that.

            OPs are directed to comply the order within stipulated period failing which for non-compliance of the Forum’s order and for disobeyance of the Forum’s order OPs1 to 3 and 5 shall have to pay penal damages @Rs.200/-(at the rate of Rupees Two hundred) per day till final execution, registration of the deed if it shall be collected from that OPs1 to 3 and 5  it shall be deposited State Consumer Welfare Fund and if it is not paid by the OPs 1 to 3 and 5 in that case penal action shall be taken against them for realization for implementation of this order.