Date of filing : 17.01.2018
Date of Judgment : 27.09.2022
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Ajoy Kumar Mahato alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shribhumi Realty Pvt. Ltd., (2) Mr. Gopal Malakar, (3) Mr. Soumitra Roy, (4) Mr. Biswabrata Maity, (5) Mr. Sagar Ganguly and (6) Mr. Samit Dutta.
Case of the Complainant, in short, is that Complainant being interested in the project of the OP namely Shribhumi which was to be developed by the Sribhumi Realty Pvt. Ltd./OP No.1, booked a flat along with an open garage and paid a sum of Rs.1,25,000/- towards booking amount for the flat under MIG category and Rs.50,000/- for open garage. Complainant paid the said amount of Rs.1,25,000/- through cheque dt.27.10.2012 and Rs.50,000/- for open garage was paid in cash. Complainant further paid an amount of Rs.2,00,000/- as a second part payment in favour of the OP No.1 by a cheques dt.08.06.2019. OP issued the receipt towards each payment and an agreement for sale was also executed between the Company and the Complainant, whereby it was agreed that the flat would be completed and handed over within July, 2016. OP No.2 to 6 are the Directors and/or former Director of the OP No.1, the Company. But it was noticed that no work was done towards development of the said project. So, Complainant wrote a letter dt.07.03.2015 to the Company to refund the total amount of Rs.3,75,000/-. But, unfortunately, not even a single amount has been paid so far. A notice was also sent dt.20.07.2017, but all in vain. Thus the present complaint has been filed by the Complainant praying for directing the OPs to jointly/severely return Rs.3,75,000/- paid towards booking of the flat and the garage along with interest @ 10%, to pay Rs.1,00,000/- as compensation and Rs.20,000/- as litigation cost.
On perusal of the record, it appears that only OP No.6 namely Samit Dutta has contested the case by filing written version contending specifically that the job of the OP No.6 was only to monitor the field work and the construction work of the Company and was not in-charge of accounts. Neither he was a shareholder of the Company. It is contended by him that he was a mere employee of the OP Company and drew monthly fixed salary. It is also contended that he had resigned from the Company and thus not liable to the Complainant. So, OP has prayed for dismissal of the case. Other OPs did not take any step and thus the case proceeded exparte.
During the course of the evidence, both parties adduced evidence followed by filing of questionnaire and reply thereto and ultimately argument has been advanced by both parties.
Ld. Advocate appearing for the OP No.6 has argued that OP No.2 namely Gopal Malakar was the developer and responsible for the entire affairs of the OP Company and to this effect said OP has also sworn an affidavit. It is also argues that the OP No. 6 was a mere employee who resigned on 23.06.2014 from the OP Company.
So, the following points require determination-
- Whether there has been any deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussions.
In order to substantiate his claim that he had booked a flat under MIG category and garage in the project namely ‘Shribhumi’ to be developed by the OP No.1, Complainant has filed copy of the agreement dt.08.06.2014. He has also filed money receipts dt.30.12.2012, wherefrom it appears that Complainant paid booking amount of Rs.1,25,000/- through cheque dt. 27.10.2012 and also paid Rs.50,000/- in cash on 30.11.2012. Receipt dt.08.06.2014 further shows that an amount of Rs.2,00,000/- was paid by the Complainant towards the said flat. So far as the payment by the Complainant and the agreement entered into with the Company has not been disputed and denied by the only contesting OP namely Samit Dutta. As per terms of the agreement, OP No.1 agreed to handover the possession of flat by July, 2016, which according to the Complainant has not been handed over.
On a careful scrutiny of the agreement for sale entered into between the parties it appears that one Abhay Makal being the owner is also a party but he has not signed in the agreement. There is a specific recital in the agreement that some of the recorded owners have transferred their land in favour of O.P no.1 company i.e M/s Sreebhumi Realty Pvt. Ltd. by virtue of registered sale deed and some of the parties entered into a joint venture agreement with the said O.P company. It is also specifically stated in the recital of the agreement being clause 5.4.5 that “In pursuance of the agreement the owners will grant registered power of attorney to the developer as per the provisions of West Bengal Registration Act and thereof accordingly entering into this agreement”.
It is nowhere stated either in the complaint or during the evidence that any power of attorney as per the terms as highlighted above in the agreement was executed by the owners in favour of the said O.P company, who appears to be the developer. The O.P company has been described in the agreement only as developer. It is nowhere mentioned in the agreement that developer was entering into the agreement for sale with the complainant as constituted attorney of the owner. So, the agreement itself is very categorical that developer/O.P company was not the owner in respect of the entire land nor any power of attorney was executed by the owners in favour of the developer/company. In such a situation , if the O.P company was neither the owner nor was empowered by the owners to sell or transfer the land, any sale or transfer by the O.P company in respect of the land as described in the agreement was bad in law. So, there could not be hiring of any ‘Service’ as provided under the provisions of Consumer Protection Act. Be it mentioned here that the complainant being party to the agreement was aware about the terms and recitals therein. So, even though complainant is entitled to recovery of sum paid by him but for the same competent Civil Court only has the jurisdiction. In such a situation the present complaint is liable to be dismissed being not maintainable.
Hence,
ORDERED
That CC/24/2018 is dismissed on contest against the O.P no.6 and exparte against O.P nos. 1 to 5.
