Date of filing :8.6.2018

Judgment : Dt.21.1.2019

Mrs. Sashi Kala Basu, Hon’ble President.

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sri Dipak Bhattacharyya alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Smt. Sovana Ghosh, (2) Smt. Sefali Guha Roy, (3) Smt. Putul Pal, (4) Sri Debraj Pal, (5) Sri Debasish Pal and (6) Sri Malay Chatterjee.

            Case of the Complainant, in brief, is that one Renukabala Dasi alias Renuka Pal, predecessor-in-interest of OP No.1 to 5 entered into a development agreement on 19.4.2004 with the OP No.6 for construction of a multi storied building on the land measuring 6 cottahs 15 chittacks and  42 sq.ft. at premises No.93, R. N. Das Road, Dhakuria, P.S.-Garfa.

            According to the terms and conditions some flats and shop rooms in the building to be constructed were allotted to OP No.6 the developer. Thus Complainant entered into an agreement with the OP No.6 on 29.1.2009 to purchase one shop room measuring an area of 30 sq.ft. a little more or less on the ground floor. OP No.6 agreed to sell the said shop room at a total consideration price of Rs.70,000/- which has been fully paid by the Complainant. But OP No.6 instead of going for registration of the deed of conveyance in favour of the Complainant had put the Complainant to the possession of the shop room by issuing one possession letter dt.1.12.2012. In spite of sending notices to the OPs including the OP No.1 to 5 who are legal heirs of the said owner Renuka Bala Dasi, deed has not been executed and registered. Said Renuka Pal died intestate in the year 2009. So, the present complaint has been filed by the Complainant praying to direct the OP to execute and register the deed of conveyance and to pay compensation of Rs.50,000/-.

            Complainant has annexed with the complaint petition, property tax receipt, letter of possession, CESC bill, money receipts and agreement for sale.

            On perusal of the record, it appears that in spite of sending the notices no step has been taken by the OPs and thus the case proceeded ex-parte against the OPs.

            So, the point requires determination : Whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

            At the very outset it may be pertinent to point out that against the OPs in this case, there are several other cases filed by different purchasers/ Complainants. In one of the cases being No.CC/113/2018, OP No.1 to 5 being the legal heirs of Renuka Bala Dasi who had entered into the  development agreement allegedly with the OP No.6, entered appearance and by filing a written version stated that Renuka Bala Dasi alias Renuka Bala Pal died on 3.8.2008. So, if any power of attorney executed in favour of OP No.6 being the developer, same terminated on the death of the said Renuka Bala Dasi. If that be so, then it has to be taken into consideration whether the OP No.6 had authority or power to enter into an agreement for sale with the Complainant in this case. Even though in the complaint petition, Complainant has stated that he learnt that the said Renuka Bala died intestate in the year 2009, but he has not stated any specific date of her death. There cannot be any denial and dispute that the OP No.1 to 5 being the legal heirs of the said Renuka Bala Dasi, are the best persons to say, when she died.

            On perusal of the agreement for sale it is evident that the agreement was executed on 29.1.2009. So, on the date of the execution of the said agreement, OP No.6 the developer apparently did not have any power to sell or act  on behalf of the owner as constituted attorney. As already highlighted that on the death of the said owner on03.08.2008, the effect of power of attorney had terminated. It is true that as it appears from the document filed in this case, which includes a possession letter showing the possession of the shop room, has already been delivered. But, it is unfortunate that in the copy of the possession letter filed before this Forum, annexed with the petition of complaint, possession letter is dated 1.12.12, whereas in the original document produced by the Complainant before this Forum possession letter is dated 31.12.2007. So, apparently there is tampering in the document filed before this Forum. It is absurd and strange that before the execution of the agreement which is dated 29.01.2009, possession was already delivered to the Complainant, if the original possession letter is relied upon.

            It may also be pertinent to point out that in the original agreement for sale produced by the Complainant before this Forum indicates that even in the agreement the year has been tampered and it is made as two thousand ‘five’ in place of two thousand ‘nine’. Though in the petition of complaint and also in the Xerox copy of the agreement annexed with complaint, it bears the date 29.1.2009. So, on consideration of the very aspect that on the date of agreement OP No.6 with whom the Complainant entered into agreement to purchase the shop room in question, had no power to sell the shop room, the present case is not maintainable before this Forum and thus liable to be dismissed with cost because of tampering with the documents.

            Hence

                                        ordered

            CC/339/2018 is dismissed with cost of Rs.3,000/- to be deposited by the Complainant with the State Consumer Welfare Fund.