Date of filing :26.5.2017

Judgment : Dt.12.4.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of   C.P.Act, 1986 by Sunil Chandra Das alleging deficiency in service on the part of the opposite parties (OPs hereinafter) namely (1) Smt. Purnima Das (Karmakar)/ Land owner and (2) Rajesh Chouhan (developer).

            Case of the Complainant in brief is that the OP No.1 Purnima Das (Karmakar) u/o Joydeb Karmakar is absolute owner of a piece of land measuring 1 cottah 6 chittak recorded in J.L.No.23, Mouza-Rajapur Gram, S.P. No.819/1, E.P.No.301, C.S.Plot No.490 postal premises J67 now J67/A, Baghajatin by virtue of a registered deed dt.17.11.2012 and engaged OP No.2 to construct a three storied building thereupon and a general power of attorney dt.13.10.2015 was executed in favour of OP No.2. The Complainant has stated that the Complainant paid Rs.10,00,000/- to OP No.1 on 19.7.2012 to purchase a self contained flat to be constructed by the OPs at J67/A, Baghajatin, P.S.-Jadavpur, Kolkata-700 032 but after completion of construction, the Complainant repeatedly requested the OPs to handover possession and execute the registration of sale deed of the flat in favour of the Complainant but the OPs failed and neglected to do so. It is further stated by the Complainant that OPs had claimed an extra amount of Rs.2,00,000/- from the Complainant which is illegal. It is specific allegation of the Complainant that in spite of making payment of full consideration amount the Complainant have been being deprived of getting peaceful possession of the said flat and getting registration of sale deed in favour of him. Hence, this case. The Complainant by filing the instant case prayed for direction upon OPs to handover possession and execution and registration of deed of conveyance in favour of them, to pay Rs.5,00,000/- towards compensation and Rs.1,00,000/- as litigation cost.

            Notices were served upon the OPs but they did not turn up so the case was fixed for ex-parte hearing vide order No.17 dt.17.01.2018.

            The Complainant adduced affidavit-in-chief and photocopy of money receipt dt.19.7.2012 issued in favour of the Complainant by OP No.1, Gift Deed dt.17.4.2012, general power of attorney dt.13.10.2015 executed by and between the OP No.1 & OP No.2.

Decision with reasons

            The Complainant has stated in the petition of complaint that being desirous to own a residential accommodation he met OP No.1  who is the absolute owner of a piece of land lying and situated at J.L.No.23, Mouza-Rajapur Gram, S.P. No.819/1, E.P.No.301, C.S.Plot No.490 postal premises J67 now J67/A, Baghajatin and KMC Premises No.58, Baghajatin (56 Baghajatin) Block-J, (Assessee No.31-102-03-0058 now 310200300569, K. M. C ward No.102), Kolkata-700 032 and agreed to sale and transfer in respect of one complete two bedrooms flat (roadside) on the 2^nd floor of a III storied building to be constructed within the said premises free from all encumbrances charges, lien and lispendance. The Complainant has claimed to have paid Rs.10,00,000/- towards entire amount of consideration to Smt. Purnima Das against money receipt issued by the said Purnima Das (Karmakar). Money receipt dt.19.7.2012 issued by the OP No.1 support such averment of the Complainant as in the said money receipt issued by Purnima Das (Karmakar) contains as “I, Mrs. Purnima Das (Karmakar) wife of Sri Joydev Karmakar, of J/67 Baghajatin, P.S. Jadavpur, Kolkata-700 032, received a sum of Rs.10,00,000/- (Ten lakhs) only as full and final consideration amount from Sunil Chandra Das, son of Late Suresh Das, residing at J67, Baghajatin, P.S. Jadavpur, Kolkata-700 032, for the purpose of Sale and transfer in respect of one complete two bedrooms flat (road side) on the second floor after construction of three storied building lying and situated at K.M.C Premises No.58, Baghajatin, Block-J, Assessee No.31-102-03-0058, recorded under J.L.No. 23, Mouza Rajapur Gram, S.P. No.819/1, EP No.301A, C.S. Plot No.490(P) Ward No.102, P.S. Jadavpur, District : South 24 Parganas free from all encumbrances, charges, lien and lispendence etc.”

            It is stated by the Complainant that OP No.1 executed a power of attorney in favour of the OP No.2 copy of Genera Power of Attorney filed by the Complainant shows that the OP No.1 executed a power of attorney empowering nominating, constituting and appointing Mr. Rajib Chouhan (The OP No.2 herein) as her lawful Attorney authorizing him to sell entire ground floor and 1^st floor save and except entire 2^nd floor flat of a III storied building together with undivided proportionate share of land and premises along with common areas and facilities as per making building plan and land measuring 01 cottah 06 chittak and 0 sq.ft. to be the same and/or little more or less at mouza Rajapur, E.P.No.331A S.P.No.8191, C.S.Plot No.490(P) JL No.23 being premises No.56 Baghajatin Block-J being postal address J/67/A Baghajatin Colony Kolkata-700 032 under  certain terms and conditions including other rights and the said General Power of Attorney was registered at the office of District Sub-Registrar-I, Alipore, South 24 Parganas on 13.10.2015. It is evident therefrom that the OP No.1 did not empower the OP No.2 to sell the flat (S) on 2^nd floor. The OP No.1 received full and final consideration from the Complainant in respect of a flat on 2^nd floor at the proposed III storied building to be constructed within the piece of land as mentioned hereinabove.

            The Complainant by adducing evidence has stated that construction of the proposed III storied building has been completed in December, 2016 and thereafter he approached  the OP No.1 to delivery of possession of the said flat in respect of which he has made payment of Rs.10,00,000/- but the OP No.1 did not deliver the said flat to him instead asked him to pay a further amount of Rs.2,00,000/- which he denied. However, no documentary proof has been adduced to such claim.

            To sum up it is evident from the unchallenged evidence adduce by the Complainant and documents annexed thereto that the OP No.1 received an amount of Rs.10,00,000/- paid by the Complainant towards full and final of payment in respect of a flat in 2^nd floor of a building which was agreed to be delivered after completion of the construction of the same. The construction of the said flat was completed.

            It is evident from the Power of Attorney executed by land owner in favour of the Developer that the Developer by virtue of the said Power of Attorney has been empowered to sell the flats on the ground floor and 1^st floor of the said building and not the 2^nd floor but the money receipt shows that he has received consideration amount in respect of a 2^nd floor flat which                              amounts to adoption of unfair trade practice o n the part of the OP No.1/ Developer.

            Under such circumstances, OP Developer is liable to refund the consideration amount of Rs.10,00,000/- to the Complainant and to pay compensation of Rs.9,00,000/- to the Complainant for adopting unfair trade practice.

            Considering the circumstances, we are allowing Rs.7,500/- as cost of litigation.

            In the result, the consumer complaint succeeds.

            Hence,

ordered

            That CC/293/2017 is allowed ex-parte in part against OP no.1 and dismissed ex-parte against OP No.2. The OP No.1 is directed to refund Rs.10,00,000/- to the Complainant within one month from the date of communication of this order. The OP No.1 is further directed to pay Rs.9,00,000/- towards compensation and Rs.7,500/- towards cost of litigation within aforesaid period failing which the entire amount shall carry interest @ 8% p.a.