Date of filing :24.12.2018
Judgment : Dt.12.9.2019
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of C.P.Act, by Dilip Kumar Ghosh alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shambhu Shaw, (2) Ajoy Prasad, (3) Shankar Shaw, (4) Vicky Singh, (5) Dipak Ranjan Mukherjee, (6) Tapan Mukherjee, (7) Shiboprosad Mukherjee, (8) Goutam Mukherjee, (9) Mukta Chatterjee & (10) Shukla Bhattacharjee.
Case of the Complainant, in brief, is that the Complainant was in search of an accommodation being approached by the Developer namely Shambhu Shaw and going through the Development Agreement and General Power of Attorney executed by and between the Developer and the land owner and being satisfied entered into an Agreement for Sale with the Developer on 10.11.2010 in respect of a flat measuring about 400 sq.ft. on the eastern side of a residential building constructed at premises No.63, Jadavgarh Colony (Mailing address Postal premises No.1/62, Jadavgarh Colony), P.S.-Kasba, now Garfa, Kolkata – 700 078 along with proportionate share of land and right over all common areas and facilities at a consideration of Rs.5,06,000/- and the Complainant paid entire consideration amount by cheque on different dates and paid further amount of Rs.29,000/- for extra work and on receiving full and final payment the Developer (OP Nos.1 to 4 herein) handed over possession of the said flat to the Complainant.
The Complainant has stated that he requested the OPs on several occasions to execute and register the deed of conveyance in favour of him. But, the OPs did not pay any heed to that request.
It is stated by the Complainant that after receiving affirmative nod from the developers in September, 2012 he prepared a draft deed and the developers put their signatures thereon, but did not appear before the registering authority on the date of registration i.e. on 6.9.2012 and on query the Complainant came to know that one of the developers got admitted to the hospital owing to his ill health and thereafter the developers refused to register the deed of conveyance on some vague ground and finding no alternative way, the Complainant issued notice dated 26.10.2018. In reply to that notice, Ld. Advocate Joydeep Sengupta on behalf of the developer sent reply dt.1.12.2018 informing the Complainant that the power of attorney has already been revoked by the land owners and therefore, the Complainant by filing the instant consumer complaint prayed for direction upon the OPs to execute and register the deed of conveyance in favour of the Complainant, to issue possession letter, to handover the completion certificate, to pass a restraining order, to pay Rs.2,50,000/- towards compensation and Rs.50,000/- towards cost of litigation and to appoint Commissioner.
The Complainant annexed General Power of Attorney dt.18.2.2010, development agreement dt.12.3.2010, agreement for sale dt.10.11.2010, letter dt.26.10.2018 issued from the end of the Complainant and letter dt.1.12.2018 issued from the end of the OP developer.
Notices were served, but OP Nos.4 to 10 did not turn up. Though OP Nos.1 to 3 appeared through their Ld. Advocate, but did not file written version and therefore the case proceeded ex-parte vide order dt.30.5.2019.
The Complainant adduced evidence.
In course of argument, Ld. Advocate on behalf of the Complainant filed BNA.
Decision with reasons
The Complainant claimed to have entered into an agreement for sale in respect of a flat measuring about 400 sq.ft. super built up area, on consideration of Rs.5,06,000/- and paid entire consideration amount along with a further amount of Rs.29,000/- for availing of some extra work.
On perusal of agreement for sale dt.10.11.2010, it appears that the agreement was executed by and between the Complainant and the Developers i.e. OP No.1 to 4 being the constituted attorney of the land owners i.e. OP No.5 to 10 in respect of the flat measuring about 400 sq.ft. lying and situated at 1/62, Jadavgarh Colony, Kolkata – 700 078 from the developers’ allocation @ 1100/ sq.ft. It further appears from the back side of first page of said agreement for sale that the OP No.1 & 2 on behalf of the developers received Rs.50,000/- on 18.11.2010, Rs.50,000/- on 14.12.2010, Rs.1,00,000/- on 23.2.2011, Rs.1,50,000/- on 19.5.2011, Rs.1,00,000/- on 7.7.2011, Rs.30,000/- and Rs.55,000/- on 31.8.2012 amounting to Rs.5,35,000/- from the Complainant. On further perusal of document on record, it appears that a General Power of Attorney was executed in favour of the developer by the land owner and subsequently a development agreement was executed by and between the Developers and the land owners. It appears from Development Agreement dt.12.3.2010 that the landowners were entitled to get two flats on the ground floor, 2 flats on the 2nd floor, a shop room measuring about 50 sq.ft. and 300 sq.ft. super built up area on the third floor of the building and rest of the portion was developer’s allocation. The flat in question is o n the first floor of the building. It is, therefore, evident that the Complainant purchased the flat from Developers’ Allocation. The Complainant claimed that he is in possession of the flat in question. However, the Complainant failed to file any document wherefrom it would have been evident that the Complainant has physical possession of the flat in question with him. It is claimed by the Complainant that he prepared a draft copy of deed and the developers put their signatures thereon but did not appear before the registering authority on the date fixed for registration of the same. In support of such contention no document as such said draft copy of deed of conveyance claimed to have signed by the developers has been filed. Therefore the same as claimed by the Complainant is not acceptable. Be that as it may, it is evident that the Complainant entered into an agreement for sale with the developers in respect of a flat and paid entire consideration amount along with further payment but the flat in question has not been registered in favour of the Complainant. In our view the developer by virtue of development agreement and General Power of Attorney were empowered to enter into any agreement for sale with intending purchaser and therefore they are liable to register the flat in question in favour of intending purchaser which they did not do and such act of the OP developer amounts to deficiency in service. It further appears from record that OP No.1 to 3 appeared once but did not file written version which suggests they have nothing to challenge. and therefore the Complainant is entitled to get registered his flat in favour of him.
It is claimed by the Complainant that he prepared a draft copy of deed. But no such document has been filed in support of such contention. It appears from letter dt.1.12.2018 issued from the end of the developer that after issuance of possession letter, the land owner revoked the power of attorney. Considering such state of affairs, we are not inclined to allow the prayer for compensation and handing over possession letter. Regarding prayer for issuance of completion certificate, we are of opinion that it is the obligation on the part of the OPs to handover the same and thus the prayer is allowed. Regarding prayer D & G for passing stay order and for appointment of Commissioner, in our opinion, at this stage, there is no scope to allow such prayer and, therefore the same is not allowed.
In the result, the Consumer Complainant succeeds in part.
Hence
ordered
That CC/687/2018 is allowed ex-parte without cost. OPs are directed to execute and register the deed of conveyance in favour of the Complainant within two months from the date of communication of this order to them. The OP Developers i.e. OP Nos.1 to 4 are further directed to handover completion certificate to the Complainant within above mentioned period.
