This is a case U/s.12 of the Consumer Protection Act, 1986 filed by the complainants, Amal Chakraborty and Manashi Chakraborty.

The case of the complainant in short is that O.P. No.2 to 4 executed and registered a power of attorney being No.5608 dated 8.10.2007 of ADSR, Serampore in favour of Sanjay Saha, the O.P. No.1 for construction of a multi-storied building and for selling out the flats etc. to the intending purchasers in respect to their share in the schedule along with others.

   That on the basis of said power, O.P. No.1 constructed a multi-storied building and on 30.6.2007 entered into an agreement with the petitioners to sale out the schedule flat at a sum of Rs.3,40,000/- on ownership basis and executed an agreement for sale in favour of your petitioners.  The petitioners paid total amount of Rs.3,40,000/- by cheque to the O.P. No.1.  On 1.4.2008 the O.P. No.1 delivered the possession of the flat to the petitioners after obtaining total sale consideration and since then petitioners have been residing in the schedule flat and got electric meter in their name from CESC. The husband of the O.P. No.1 took the total consideration money as constituent attorney of O.P. No.2 to 4 and also for himself.

    The petitioner out of trust and good faith paid more or less Rs.57,000/- to said Sanjay Saha for preparation, execution and registration of Sale Deed in their favour.  Sanjay Saha accepted the said amount and assured the petitioner to execute and register the said deed.  But Sanjay Saha did not do the same.

     All on a sudden Sanjay Saha, husband of the O.P. No.1, died leaving behind the O.P. No.1 and as his widow who inherited as to estate of deceased Sanjay Saha entire liability and responsibility has come upon the shoulder of the present O.P. as the joint owner and they are duty bound to execute and register a sale deed in favour of the petitioners.

    The petitioners repeatedly requested the O.ps. to make the execution and registration of the sale deed in favour of the petitioner but they did not pay any heed to the request of the petitioners.  On 2.4.2015 the petitioners sent a registered notice through their advocate upon the O.P. No.1 to 4 and requested them to execute the sale deed.  On reply the O.P. No. 2 & 3 admitted the fact and assured to assist to overcome the crisis as owners of the plot as per rule and the O.P. No.1 on 29.4.2015 gave a reply of the said notice and also admitted the fact and assured that she will execute and register a deed of sale in favour of the petitioner provided the O.P. No.2 to 4 execute a power of Attorney in her favour.  But there was no fruitful result.

    On 22.5.2015 petitioners sent another notice through their advocate.  But no fruitful result comes out and for this reason the petitioners have been suffering from mental agony, anxiety which torture since last few years.  Finding no other alternative the petitioners filed this case before this Forum for relief with a prayer to direct the O.P. to execute the register deed in favour of the petitioners, to pay Rs.20,000/- towards litigation cost, to pay Rs.30,000/- towards compensation for mental pain and agony and to pay Rs.50,000/- for financial loss and damages.

     The O.P. No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against her.  The O.P. No.1 submits that the petitioners are put to strict proof of the payment of Rs.3,40,000/- to her husband as the O.P. does not have any knowledge about the same and also of giving possession of the scheduled flat to the petitioner by the husband of the O.P. No.1.  This O.P. also stated that her husband did not took the alleged total consideration as earnest money as constituted attorney of O.P. No.2 to 4 and also for himself. This O.P. also denied that the petitioner paid to the husband of the O.P. No.1 a sum of Rs.57,000/- for preparation, execution and registration of sale deed in their favour in respect of schedule flat or that he assured the petitioner to execute and register the deed in favour of the petitioners.  It is also stated that in absence of any power of attorney executed by O.P. No.2 to 4 in favour of O.P. No.1 she has no authority to execute any deed of sale in favour of the petitioner.  Hence, this case.

  The O.P. No.2, 3 & 4 contested the case by filing written version denying inter-alia all the material allegation as leveled against them.  These O.Ps. submit that O.P. no.2 is a 90 years old bed ridden patient with infirmity and ill health.  The O.P. no.3 & 4 along with her father Pasupathi Banerjee (since deceased) and sister entered into a Development Agreement on 23.11.2003 with Sanjay Saha, Developer and as per the mutual terms the land measuring 2 Kattah 4 chattak together with structure thereupon situated at 26 Bazar Lane, Uttarpara was handed over to the developer for construction of multi-storied building.

   These O.ps. further submit that in utter disregard of implementation of the agreement that Sanjay Saha for extension of construction project procured by purchase contagious plots measuring total 5 katta10 chattak from different owners and became sole owner thereof.  In collusion with the officials of the Uttarpara-Kotrung Municipality and in clandestine manner Sanjay Saha got the said 2 Katta 4 chattak plot of land of the O.P. No.2 to 4 situated at 26 Bazar lane for which development agreement already existed amalgamated without knowledge and/or consent of the owners of the land 2 Cattah 4 Chattak bearing holding No.26 Bazar lane with the plots owned by him and in the municipal record amalgamated land was renumbered as by obtaining fraudulently order of amalgamation dated 1.3.2005 and subsequently obtained sanction plan No.161 dated 6.7.2005 for construction of multistoried building upon total land of 7 Kattah 14 chattak.

    Furthermore, the crooked developer insisted and pressurized the O.P. No.2 to 4 for executing power of attorney in his favour for disposal of constructed flat units constructed on the total land of 7 Kattah 14 chattak. Since the O.P. No.2 to 4 were declined to comply with his demand in view of the fact that project construction comprised not only upon the land owned by the O.P. No.2 to 4  the developer became furious and in vengeance refused to deliver possession of owners allocation as per agreement dated 23.11.2003.  Having found no option by being victim of deprivation, the O.P. No.2 to 4 was in fact under duress compelled to execute the POA dated 9.10.2007 and on the very day only the owners’ allocation was delivered by the Developer Sanjay Saha to the O.P. O.P. No. 2 to 4.

 As per the terms of development agreement dated 23.11.2003 the developer Sanjay Saha was required to construct the building in strict adherence of the sanctioned plan but it was observed that in deviation of the plan and violating the rules Sanjay Saha continued extra construction even without caring the objection of the O.P. No.3. The O.P. No.3 lodged complaint with the Municipal Authority and after prolong persuasion demolition order of additional floor construction was issued by the Municipality with direction to Sanjay Saha for compliance in the year 2010.  Sanjay Saha flouted the order and direction of demolition and disposed of the illegally built flats making the entire project disputed.  The petitioner is fully aware of the facts and now having failed to get his sale deed executed and registered by Sanjay Saha during his life time of the building constructed upon the land of Sanjay Saha and intentionally dragged the O.P. No.2 to 4 illegally for harassment and ill motive.  Hence, this case.

   The complainants filed evidence on affidavit which is nothing but the replica of complaint petition.        The argument advanced by both the parties heard in full.

   The complainants and O.Ps. both filed brief notes of argument which are taken into consideration for passing final order.   

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Amal Chakraborty & Manashi Chakraborty, are the ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

DECISION WITH REASONS

        In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants Amal Chakraborty & Manashi Chakraborty are the ‘Consumers’ of the opposite party?

 From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainant herein is the consumer of the OP, as the complainant being the intending purchaser paid consideration money and want to get the schedule mentioned flat executed and registered from the developer and the land owners so they are entitled to get service from the OP as service provider.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

     Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.1,00,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

          The case of the complainants in short is that O.P. No.2 to 4 executed and registered a power of attorney being No.5608 dated 8.10.2007 of ADSR, Serampore in favour of Sanjay Saha, the husband of O.P. No.1 for construction of a multi-storied building and for selling out the flats etc. to the intending purchasers in respect to their shares in the schedule along with others. That on the basis of said power of attorney husband of opposite party No.1 constructed a multi-storied building and on 30.6.2007 entered into an agreement with the petitioners to sale out the schedule flat at a sum of Rs.3,40,000/- on ownership basis and executed an agreement for sale in favour of your petitioners. The petitioners paid total amount of Rs.3,40,000/- by cheque to the O.P. No.1.  On 1.4.2008 the O.P. No.1 delivered the possession of the flat to the petitioner after obtaining total sale consideration and since then petitioner has been residing in the schedule mentioned flat and got electric meter in their name from CESC. The husband of the O.P. No.1 took the total consideration money as constituent attorney of O.P. No.2 to 4 and also for himself. The petitioner out of trust and good faith paid more or less Rs.57,000/- to said Sanjay Saha for preparation, execution and registration of Sale Deed in their favour.  Sanjay Saha accepted the said amount and assured the petitioner to execute and register the said deed.  But Sanjay Saha did not do the same.

After the demise of Sanjay Saha, husband of the O.P. No.1, leaving behind the O.P. No.1 and as his widow who inherited as to estate of deceased Sanjay Saha entire liability and responsibility has come upon the shoulder of the present O.P. as the joint owner and they are duty bound to execute and register a sale deed in favour of the petitioners.

The petitioners repeatedly requested the opposite parties to make the execution and registration of the sale deed in favour of the petitioners but they did not pay any heed to the request of the petitioners.  On 2.4.2015 the petitioners sent a registered notice through their advocate upon the O.P. No.1 to 4 and requested them to execute the sale deed.  On reply the O.P. No. 2 & 3 admitted the fact and assured to assist to overcome the crisis as owners of the plot as per rule and the O.P. No.1 on 29.4.2015 gave a reply of the said notice and also admitted the fact and assured that she will execute and register a deed of sale in favour of the petitioners provided the O.P. No.2 to 4 execute a power of Attorney in her favour.  But there was no fruitful result.

The O.P. No.1 in his written notes of argument assailed that an agreement between Manjushri Banerjee, Aparna Banerjee as first part and Sanjay Saha as second part and Amal Chakraborty and Manashi Chakraborty as the third part was executed by Sanjay Saha, Amal Chakraborty and Manashi Chakraborty.  The husband of O.P. No.1 Sanjay Saha developed the property containing a part of the property of O.P. No.2 to 4 being legal hairs of Late Pashupati Banerjee  by virtue of a power of attorney as executed by them in favour of Sanjay Saha.  The said power of attorney cannot be effective after demise of Sanjay Saha and in absence of any such conveyance the O.P. no.1 has no power to execute any deed in favour of the complainant in respect of the property belonging to O.P. No.2 to 4.  More over O.P. no.1 being a rustic lady is fully unaware regarding the act of her deceased husband.  So, the complainant cannot seek any relief.

The O.P. no.2 died during the period of proceeding.  So, this Forum expunged the O.P. no.2 from this proceeding vide order dated 26.7.2017.  The O.P. No.3 & 4 filed written notes of argument in which they stated that the payment made by the complainant to the developer only.  There is no monetary transaction in between the complainant and the O.P. No.3 & 4. They are not the signatory in respect of sale agreement between the developer and the complainant for the purchase of flat.  They also assailed that the so called developer (since deceased) by purchasing the contagious land measuring 5 Kattah 10 Chattak along with the land of O.P. No.2 to 4 measuring 2 Kattah 4 Chattak in total 7 Kattah 14 Chattak on which the developer constructed a multistoried building and he made agreement with the intending purchaser avoiding the land owner’s (in part).  So, there is no jural relationship between the complainant and the O.P. No.2 to 4 as consumer and service provider.  The motive of the petitioners to implicate the O.P. No.2 to 4 is harassing with vengeance.  The petitioner is in possession for a prolonged period but failed to get executed their flat due to latches on their part.  So, the O.P. No.2 to 4 are not responsible for deficiency of service.

After perusing the complaint petition, the document on record and hearing the argument advanced by the Advocates of the parties it appears that complainant made an agreement with the developer to purchase a flat stated in the schedule and paid the consideration amount in installments and now they are in possession for a prolonged period as it is depicted from the certificate of possession dated 1.4.2008, issued by the developer Sanjay Saha, husband of the O.P. No.1.  But the flat is yet to be registered in favour of the complainants.  So, the complainants on several occasion approached the O.P. No.1 to 4 verbally and through letters dated 22.5.2015 and others to execute and register the sale deed at the cost of the complainants.  It is also stated by the complainants through legal notice that to avoid litigation and crisis the addressee No.4 being the widow of deceased Sanjay Saha who was a co-owner with addressee No.1 to 3 and also a promoter/developer of the schedule has inherited the share of Sanjay Saha and addressee No.1 to 3( OP No.2 to 4) are also the co-owners with the addressee No.4.  the sale deed may be executed and registered and confirmed without any power and the power is not necessary if all the parties execute, register and confirm the sale.  So, the complainant by serving the legal notice upon the O.Ps. prayed to fix a date for execution and registration of the sale deed in favour of the complainants and also prayed to inform them to send a draft copy of sale deed.  In reply to letter dated 2.4.2015 the O.P. No.3 sent a letter to the Advocate of the complainant 20.4.2015 stating that in terms of the development agreement Sanjay Saha was given power of authority to sell the developer’s allocation and collect cost and charges exclusively for him without any interference of the O.P. after transfer the owners’ allocation.  So, Sri Saha (since deceased) was at a liberty to sale prospective purchasers the residential units of developer’s allocation with all statutory obligation as per the term of development agreement and power of attorney.  So, other O.ps. had no role to play by virtue of power of attorney and they took not a single paisa from any of prospective purchasers to who Sanjay Saha sold out flats.  Now they are not aware why Mr. Saha did not execute and or register the sale deed to some other including the complainants even after taking all cost and charges as it appears. The developer flouted all norms and constructed extra floor in deviation of permissible limit in spite of severe objection put by them and also failed to provide them documents as a result they could not mutated their flat before the Municipal Authority and lastly the O.P. No.3 assured to extend assistance to the complainant as owner of the plot of flat to overcome the crisis within permissible authority. The complainant file Xerox copy of property tax received by Uttarpara Kotrang Municipality dated 4.9.2014 in their name. 

Upon a careful consideration this Forum is in the opinion that inspite of paying the cost of flat the complainants did not get registered the said flat in their name but they are in possession since the date of delivery of possession for a prolonged period and paying taxes before the  local authority and living their peacefully.  But they are in mental agony as the flat has not been executed and registered in their favour by the developer and/or land owners.  As a result they approached the legal heirs of the developer Sanjay Saha and the O.P. No.2 to 4 being the land owners in part on several occasions.  But their efforts comes in all in vain.  So, the complainant getting no alternative preferred the recourse of this Forum and prayed redressal as incorporated in the prayer portion of the complaint petition.  The land on which the impugned flat is constructed is owned by O.P. No.1 being the legal heir of deceased Sanjay Saha & O.P. No.2to 4 inherited the property after the demise of Pasupati Banerjee.  So, for proper execution all the opposite parties are responsible for execution and registration of flat in favour of the complainants at the cost of the complainants within a reasonable time.

Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting the deed executed in their favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainants within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainants. However, since the complainants are in possession considering the loss suffered by them, they are entitled to compensation of Rs.5,000/- from the opposite party No.1.

Going by the foregoing discussion hence it is ordered that the complainants abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat by adducing cogent document/evidence so the prayer of the complainants are allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of execution & registration of deed of conveyance so ther are entitled to get compensation.

ORDER

Hence ordered that the complaint case being No.140/2015 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.3000/- to be paid by the OP No.1.

The Opposite Party No. 1 to 4 are directed to execute and register the deed of conveyance in favour of the complainants in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainants may get the deed executed through the machinery of this Forum.

The Opposite Party No.1 is directed to pay compensation amounting to Rs.5,000/- to these complainants for mental pain and agony within 45 days from the date of passing this order.

At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.