Dt. of filing – 31/07/2017
Dt. of Judgement – 15/02/2019
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of the Consumer Protection Act, 1986 by Sri Arindam Saha alleging deficiency in service on the part of the Opposite Parties (referred as OP hereinafter) namely 1) Smt Santi Majumder 2) Smt Jayashree Chatterjee 3) Sri Samir Majumder 4) Ashes Bose.
Facts in brief are that the OP Nos.1, 2 & 3 are joint owners of a land along with a structure lying and situated in Khatian No.247, Parganas Khaspur, J.L.No.42, Touuzi No.151, Mouza Shibpur, Premises No.27/84 Khetra Mohan Naskar Road, P.S. Regent Park , Kolkata- 700040 and the OP No.3 is the developer of the said plot of land by virtue of an agreement for development dated 20/10/2010 executed by and between the OP Nos.1, 2, 3 & the OP No.4 for developing the said plot of land by constructing a multi-storied building. The Complainant has stated that the OP No.4 constructed the building as per sanctioned building plan and the OP Nos.1, 2 & 3 executed a Power of Attorney in favour of the OP No.4 whereby the OP No.4 was empowered to enter into agreement for sale with the intending purchaser on behalf of the OP Nos.1, 2 & 3 (land owners). The Complainant has further stated that being approached by OP No.4 the Complainant entered into agreement for sale on 26/12/2010 with the OP No.4 in respect of a flat measuring about 340 sq ft on the ground floor of the said building at a consideration of Rs.6,00,000/- and paid Rs.2,00,000/- by cheques and Rs.1,50,000/- from the loan account of the Complainant. It is further stated by the Complainant that the OP No.4 handed over symbolic possession of the incomplete flat on 16/4/2011 and after getting symbolic possession the Complainant had to pay Rs.2,00,000/- for making the flat habitable by setting marble on the floor, fixing doors and windows, installing electricity wearing, constructing overhead water tank and fixing outside pipe line through the developer and thereafter requested the OPs to register the Deed of Conveyance in favour of him after receiving balance consideration of Rs.50,000/- but the OPs paid no heed to that request. Moreover, the OP Nos.1 to 3 with help of anti social elements put padlock on the main entrance of the flat in question and finding no other way the Complainant sent demand notice dated 24/5/2017 through his Ld. Advocate in respect of which the OP Nos. 1 to 3 sent reply dated 6/6/2017 stating that they had no obligation to execute and register the Deed of Conveyance 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 pay Rs.2,00,000/- towards compensation and further direction upon the OP Nos.1 to 3 to restore possession of the flat.
The Complainant annexed the photocopy of agreement for sale dated 26/10/2010, Money Receipts dated 1/7/2011, 20/12/2016 and 13/1/2011, Possession letter dated 16/4/2011, Loan sanction letter dated 28/3/2011, and Advocate’s letter dated 24/5/2017. Advocate’s letter dated 6/6/2017 issued on behalf of the OP Nos.1 & 2. Notices were served but the OP Nos.2 & 3 did not turn up. So the case proceeded ex-parte against the OP Nos.2 & 3 vide order No.8 dt.26/12/2017.
The OP No.1 contested the case by filing written version denying and disputing all the allegations made out in thepetition of complaint stating inter alia that a development agreement was executed between the OP Nos. 1, 2, 3 and the OP No.4 for developing the premises no.27/84, K. M. Naskar Road, P.S. Regent Park, Kolkata-700040 but the OP No.4 failed to perform as per terms of the said agreement and the OP Nos.1, 2 & 3 cancelled the development agreement as well as the Power of Attorney and a suit being No. T.S. 107/2012 was filed before the First Civil Judge, Junior Division, Alipore which is still pending. The OP No.1 has further stated that neither any agreement was filed by the Complainant executed by and between the OP Nos.1, 2, 3 & 4 and the Complainant nor any amount had been paid by the Complainant to the OP Nos. 1, 2 & 3. Moreover, the copy of agreement which was annexed to the petition of complaint does not bear the signature of the OP Nos.1, 2 & 3. It is further stated by the OP No.1 the question of putting padlock on the main entrance of the flat in question does not arise at all since the OP Nos.1, 2 & 3 has cancelled the development agreement as well as Power of Attorney executed by and between the land owners and developer long ago and so the land owners are in possession of their property and they have no bearing with the agreement for sale dated26/12/2010 and accordingly prayed for dismissal of this case.
The OP No.4 also contested the case by filing written version stated inter alia, that the OP No.4 being constituted Attorney of the OP Nos.1, 2 & 3 entered into an agreement for sale with the Complainant and as per terms of the said agreement almost completed the entire development work except painting the building. The OP No.4 has stated that he handed over possession of the flat in question in May, 2011 to the Complainant and requested him to take step for registration of Deed of Conveyance in his favour and further stated that OP No.4 completed registration of the Deed of Conveyance of another flat owner in the meantime but, subsequently, on 4/5/2011 the land owners revoked the Power of Attorney. The OP No.1 has further stated that the Complainant tampered the said agreement for sale by replacing two pages as that two pages does not bear the signature of the developer. It is further stated by the OP No.4 that the Complainant did not pay balance consideration amount within the stipulated period and, moreover, completion of unfinished work has been done by paying from his own pocket as claimed by the Complainant is baseless. Furthermore due to cancellation of Power of Attorney and development agreement the developer is not in a position to register the Deed of Conveyance and a case being no. T.S. 107/2012 was initiated against him by the land owner is still pending before First Civil Judge, Junior Division, Alipore and if this Forum passed any direction to the OP No.4 for execution and registration of the Deed of Conveyance that will be complied by the OP No.4 on condition in that situation the Complainant will have to pay the consideration as per present government market value and accordingly prays for dismissal of the case.
The OP No.1 adduced copy of Title Suit being no.107/2012, development agreement dated 20/10/2010.
The Complainant and the OP No.1 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.
In course of argument Ld. Advocate for the Complainant submitted that the Title Suit being no.107/2012 filed by the OP Nos. 1, 2 & 3 against the OP developer is an interse dispute and by filing the said suit the OPs cannot debar the Complainant from getting his legitimate claim.
Ld. Advocate for the OP No.1 submitted that being owner of the said property they are in possession of their property and they are not aware of agreement for sale dated 26/12/2010 and no money has been paid to them in respect of the flat in question.
Points for determination:
- Whether there is deficiency in providing service on the part of the OPs.
- Whether the Complainant is entitled to any relief as prayed for.
Decision with reasons
Point Nos. 1 & 2
Both points are taken up together for comprehensive discussion and decision. The Complainant claimed to have entered into an agreement for sale in respect of a flat measuring about 340 sq ft and paid Rs.3,50,000/- on different dates to the OP No.4 out of entire consideration of Rs.6,00,000/-. A photocopy of agreement for sale dated 26/12/2010 and money receipts dated18/12/2010, 13/1/2011 and 1/7/2011 are filed to substantiate such claim. It is further claimed by the Complainant that he had to pay Rs.2,00,000/- for completion of the entire unfinished work of the said flat after receiving symbolic possession. However, no documentary evidence such as any receipt or bill is filed by the Complainant wherefrom it could have been evident that the Complainant had to incur expenditure of Rs.2,00,000/- for completion of the unfinished work of the flat in question. The Complainant has alleged that he has only received symbolic possession on 16/4/2011 and had CESC Meter installed in his name but the developer consumed electricity through this connection. However, no documentary evidence such as electricity bill in respect of consumption of electricity is filed. It is further alleged by the Complainant that the OP Nos.1, 2 & 3 put a padlock on the main entrance of the flat in question but failed to file any evidence such as any complaint lodged with the local P.S. in respect of that incident to substantiate such allegation made by the Complainant. It appears from written version filed by the OP No.1 that a development agreement and a Power of Attorney were executed by and between the land owners and developer. It further appears from the said written version that subsequently the land owner cancelled the said development agreement and revoked the Power of Attorney. A copy of development agreement filed by the OP No.1 supports that the development agreement and Power of Attorney were executed by and between the land owners and developer. It is stated by the landowners that they cancelled the development agreement and Power of Attorney but no documents have been filed in this respect. However, it appears from the copy of T.S.107/2012 filed by the OP No.1 that the OP Nos.1, 2 & 3 by filing the Title Suit has prayed for passing decree declaring the agreement dated 20/10/2010 and Power of Attorney executed by them has lost their force and hence nonest, further decree declaring that the defendant cannot claim any right or interest out of the said agreement, further decree that the defendant has no right to come over the suit property in any way, further decree for perpetual injunction restraining the defendant from coming to the suit property and other reliefs.
The OP developer made allegation in his written version that the Complainant manipulated the agreement for sale by replacing two pages. In course of argument the Complainant was asked to file original agreement for sale but the Complainant did not file the same. Admittedly the OP No.4 was empowered to develop the said plot of land and entered into agreement for sale with intending purchaser by virtue of development agreement and power of attorney executed by and between the land owners and the developer. It appears from development agreement that as per said development agreement that developer was to complete entire construction within 75 days from the date of execution of development agreement dated 20/10/2010. The OP o.4 has stated that the owners revoked power of attorney on 4/5/2011 and before revocation of power of attorney the OP No.4 requested the Complainant to take step for registration of Deed of Conveyance. It is admitted by the Complainant that he sent demand notice on 24/5/2017 after a period of six years from getting symbolic possession as claimed by him but did not explain why he took six years to send demand notice and what happened after completion of unfinished work and thereafter the flat in question was under whose possession. These unanswered questions create serious doubt whether the Complainant had been enjoying possession and was reluctant to register the Deed of Conveyance. The OP No.4 alleged that the Complainant failed to pay consideration amount as per terms of the agreement for sale and to hide the fact replaced two pages of the agreement for sale. The Complainant neither filed original agreement for sale nor did file any documents to show that the agreement for sale had been lying elsewhere. In absence of original agreement for sale any relief cannot be granted to the Complainant. Moreover, as per provision of section 13(2)(b)(1) District Forum settle the contested matter on the basis of evidence. However, in this case the Complainant failed to adduce any cogent evidence in support of his claim.
In the light of discussion as made herein above it is clear that the Complainant failed to prove his case.
However, it is admitted that the Complainant had paid Rs.3,50,000/- to the OP No.4. Had the Complainant made prayer for refund of the paid amount the same would have been considered but he did not.
Point Nos.1 & 2 are decided accordingly.
In the result the consumer complaint does not succeed.
Hence,
ORDERED
CC/422/2017 is dismissed on contest.
