Subhas Chandar Koley,

son of  Banamali Koley,

2/2, Kedarnath Mukherjee Lane, P.S. Bantra,  

District – Howrah.--------------------------------------------------------------  COMPLAINANT.

-          Versus   -

1. Smt. Chhabi Rani Ghosh,

    w/o. late Indrajit  Ghosh,

2. Indranil  Ghosh,

    s/o. late Indrajit Ghosh,

    both residing at 2, Kedarnath Mukherjee Lane,

    P.S;. Bantra, Howrah,

    at present residing at Lions Apartment Flat no. 13/4,

    3^rd floor, premises 174/5, Netaji Subhas  Chandra Bose,

    P.S. Jadavpur, Kolkata – 700040.

3.  M/S. Utthan,

     a proprietorship concern represented by sole

     proprietorship Sri Dipankar Majhi,

     residing at 12, Panchanan Chatterjee Lane, P.S. Bantra,

     District – Howrah. . -------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

      Member       :     Smt. Jhumki Saha.     

                                                 F  I   N   A    L       O    R   D    E     R

1.      The instant case was filed by the complainant  U/S 12 of the C .P. Act, 1986 ( as

amended upto date ) against the O.Ps. alleging deficiency in service U/S 2(1)(g), 2(1)(o) of the  C.P. Act, 1986 wherein the complainant  has prayed for a direction to be given upon the O.Ps. for execution of the deed of sale in favour of the complainant with respect to the schedule property and compensation for Rs. 1,00,000/- together with litigation costs as the O.Ps in spite of receiving the part of the total  consideration value of  Rs. 2,05,000/-  including registration charges   did not execute the sale deed.   

2.      The o.p. nos. 1 & 2 in their written version contended interalia that the

complaint is not maintainable before this Forum. Moreover, the general power of attorney, which was executed by the answering O.Ps. on 24-11-2009 in favour of the  O.P. no. 3 has been revoked by these answering O.Ps. by its letter dated 08-03-2012 and 18-06-2012 for which question of taking proper action does not hold good and the complaint as lodged by the complainant is frivolous, malafide, concocted and harassing in nature and as such the same is liable to be rejected.

3.      Notices were served upon o.ps. The agreement dated 24-11-2009 with the

complainant made by the O.P. nos. 1 & 2  in collaboration of O.P. no. 3 has submitted written version.  The developer i.e., O.P.no. 3 never appeared and filed any  written version Accordingly, case was heard ex parte against O.P. no. 3. Moreover, a petition was received from the O.P. namely  Chayya Ganguly, wife of Shri Salil Kumar Ganguly was received on 06-01-2014 for adding her as a party as O.P. no. 4. As the complaint in question has already stands on the verge of judgment after hearing of both the parties complainant and O.Ps. The same is being rejected at this critical juncture. 

4.         Upon pleadings of both parties two points arose for determination :

            i)          Whether the suit is maintainable ?

ii)         Is there any deficiency in service on the part of the O.Ps.      ?

iii)                Whether the complainant is  entitled to get any relief and compensation as prayed for ? 

DECISION  WITH   REASONS      :

5.      POINT NO. 1   :

The agreement dated 24-11-2009 was executed at the behest of the O.P. nos. 1 & 2

in presence of the O.P. no. 3 i.e., developer who has actually received the part of the consideration money from the complainant as per record. So the O.Ps. namely cannot agitate over the question of impounding . In view of Section 3 of the C .P. Act, 1986 the other provision of law cannot stand as bar in filing this complaint. Hence the point no. 1 is disposed of.  

6.      POINT NOS. 2 & 3 :

Both the points are taken up together for consideration. Admittedly there was an

agreement on 24-11-2009 for sale of the schedule property measuring 311 sq. ft. at the ground  floor at 2/3, Kedar Nath Mukherjee Lane, P.S. Bantra, Howrah, at a consideration of Rs. Rs. 4,66,500/-. Admittedly the complainant paid Rs. 1,00,000/- as earnest money and further paid Rs. 1,05,000/- of totaling an amount of Rs. 2,05,000/- as per record.  The complainant already paid the part of the  consideration money to the O.Ps. In spite of receiving the part of the l consideration money, in spite of the fact that the complainant is ready to pay the balance amount as per agreement. The O.Ps. have been deliberately delaying the execution of the sale deed as is reflected from the record on the plea that the   power of attorney so vested has been revoked by the o.p. nos. 1 & 2   against O.P. no. 3 by a registered deed of revocation of power of attorney dated 08-03-2012 and 18-06-2012. It matters little if the power is cancelled. The  decision reported in (2005 ) 4 CPJ 53 (NC) envisages  that an owner cannot initiate a proceeding against the developer on the plea of beach of agreement when admittedly  they entered into a collaborative joint venture agreement ( Ref. AIR 1979 SC 533 – Syed Abdul  Khader : Ram Ready & ors.). It is a pertinent point to be considered that O.Ps. namely O.P. nos. 1 & 2 having taken benefit of the joint venture agreement with the O.P. no. 3 is duty bound to execute and register the deed of conveyance in favour of the complainant for which non-execution of sale deed by the developer / O.Ps. in favour of the purchaser of flat in terms of the agreement is a clear deficiency in service reported in (1997) 1 CPR 45 (NC) and as such U/S 2(g) of the W. B. Building Act, 1993 the O.Ps. were clearly liable to come with the provision of Section 2 ( r )  of  the C.P. Act, 1986. We are, therefore, of the view that this is a fit case where the prayer of the complainant shall be allowed as there is gross deficiency in service. Both the points are accordingly disposed of.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  130 of 2013 ( HDF  130 of 2013 )  be  and the same is allowed on  contest with costs against o.p. nos. 1 & 2 and ex parte against O.P. no. 3 with costs.  

      The O.Ps.    be directed to execute and register proper sale deed in favour of the complainant with respect to the flat as mentioned in the schedule after receiving the balance amount as per agreement from the complainant within 30 days from the date of this order.

      The complainant is entitled to a  compensation to the tune of Rs. 1,00,000/- ( Rs. One Lakh ) from the O.Ps. for causing  mental pain, agony and prolonged harassment.

      The complainant is  further entitled to a litigation costs of Rs. 5,000/- from the O.Ps.   

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.    

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (   P. K. Chatterjee )                                                          (    P. K. Chatterjee)

  Member,  C.D.R.F.,Howrah.