Order-13.

Date-20/11/2015.

In this complaint Complainant Joydeb Ghosh by filing this complaint has submitted that complainant entered into an Agreement for Sale for purchasing a shop roommeasuring about super built up area 99.28 sq. ft. lying and situated at premises No. 125, South Sinthee Road, Kolkata – 700030, P.S.-Cossipore on 10.04.2006 and total consideration of Rs. 3,47,000/- out of which complainant already paid a sum of Rs. 2,50,000/- as advance.But the ops intentionally and willfully did not deliver the possession of the same to the complainant and has not registered the said shop room to the complainant in terms of the aforesaid agreement in spite of receiving a substantial amount of money.

In fact for the purpose of development of the said property, ops entered into a development agreement with the op no.9 for raising a multi storied building over the said plot of land and suitably empowered him by executing registered power of attorney to receive money on behalf of them and entered into an agreement for sale with any prospective buyers on the terms and conditions and received the sale proceeds and advance amount.

Relying upon the aforesaid documents complainant entered into an agreement with the op no.9 on 10.04.2006 for purchasing the said shop against fixed consideration of Rs. 3,47,000/- and no doubt complainant also paid Rs. 2,50,000/- as advance out of total consideration.But with an oblique motive ops did not hand over the possession of the shop to the complainant, not they registered the sale deed in respect of the shop.

Complainant on several occasion requested to all the ops to hand over the possession of the shop to the complainant and registered the same in favour of the complainant and also complainant wanted to pay the balance amount, but ops did not pay any heed and refused his request and ultimately complainant’s Ld. Lawyer Mr. PrasantaBhaumik on 28.11.2014 sent a reply stating that ops required for sometime to settle the matter, but till date no positive response is received from the ops and in fact ops by adopting unfair trade practice deceived the complainant and trying to deceive and in the above circumstances for negligent and deficient manner of service and for adopting unfair trade practice, the present complaint is filed by the complainant for redressal.

On the other hand op nos. 1 to 3 by filing written statement have submitted that they have no knowledge regarding such agreement with the complainant, they have never received such amount from the complainant and they never assured anybody to handover any possession in respect of the said shop room.But it is specifically mentioned by the op M/s. Supriti Enterprise as developer to construct the building on the above property and all the joint owner of the above property including the op nos. 1 to 3 also engaged the op no.9as their constituted attorney to do all phases of constructional work as well as to sell the portion under developer’s allocation after handing over the owner’s allocation to the owners of the property and op nos. 1 to 3 got their allocation, nothing more than that.

Op nos. 1 to 3 never heard the name of the complainant before 01.11.2014, for the first time when they received one letter of Ld. Advocate Mr. PrasantaBhaumik on behalf of the complainant and they replied then and there and expressed their views on 06.12.2014.But landowner has not entered into any agreement with the complainant.Moreover that in the agreement for sale dated 10.04.2006 all the terms and conditions made thereon are only applicable and executable by and between the developer and the purchaser i.e. complainant and there is no bindings on the land owners.

So, in the above circumstances, op nos. 1 to 3 are no way related to the said agreement and never received any single money from the complainant.So they are not liable to pay any compensation and they have their no fault.But complainant may get such relief against the developer with whom they entered into an agreement for sale.

On the other hand op no.9 by filing written statement submitted that relationship between the complainant and ops are buyer and seller as because proper service in respect of agreement to sale dated 10.04.2006, it cannot be accepted as valid document and there is no relationship in between the complainant and op no.9 as service provider.

So, complaint is not tenable under C.P. Act 1986.But same is guided by West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993.

Decision with reasons

On proper consideration of the entire materials on record including the complaint and written version and particularly the written version of op no.9, it is undisputed fact that op no.9 has not denied about the execution of the agreement to sale dated 10.04.2006.It is also admitted position is that op no.9developed the building as per development agreement executed amongst the ops and no doubt op no.9 allocated the land owners allocation already but op no.9 has not delivered the shop room to the complainant as yet.But about receipt of Rs.2,50,000/- out of total Rs. 3,47,000/- is not denied by the op no.9.

So, it is clear that op no.9 executed the same and had been empowered by the Power of Attorney executed by land owners (op) to execute to sale is not challenged.So, it is proved that it is valid agreement to sale which is accepted by op no.9 on behalf of himself and on behalf of other land owners and present shop room is under the allocation of developer op no.9.

So, invariably as per agreement, op no.9 is liable to deliver the khas possession of the shop room after receiving the balance amount out of total Rs. 3,47,000/- as admittedly op no.9 received Rs. 2,50,000/- already.So, balance amount of Rs. 97,000/- should be paid by the complainant to the op no.9 and op no.9 shall have to hand over the shop room and to execute the sale deed etc.But in this case it is specifically mentioned that it is guided by West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993.But in this regard we have gathered that op did not register his name as per West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993.

At the same time there is no such document to show that by registered document, the land owners have transferred their share by any registered sale deed.At the same time as per development agreement, op no.9 right title interest over the property has not been acquired.But entire right title interest belongs to the land owners.Only he was empowered by the land owners to sell the prospective buyers and to execute the sale deed on behalf of the land owners not as developer or promoters.So, that provision is not applicable in this case.

          Moreover as per that Act deficiency and negligence or unfair trade practice cannot be decided.  But this Forum is only Forum who can decide this allegation as made by the complainant against the developer and land owners for not discharging their service properly and for adopting unfair trade practice.  So, in the eye of law this complaint is maintainable and in fact Hon’ble Supreme Court as per C.P. Act 1986 is the highest authority and such sort of cases are decided by the Hon’ble Supreme Court and Hon’ble supreme Court passed such order and affirmed the order of National Commission also and in any judgement Hon’ble Supreme Court has not observed that such sort of complaint is not maintainable in view of the promulgation of the Act i.e. West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993 but defining the Hon’ble Supreme Court’s order, many order are being passed but that is not at all binding upon the present Forum and fact remains that such sort of plea is taken by the so called developer though they have their no right in respect of selling any flat as promoter or developer on the basis of development agreement.  But right and sale of any flat is always found with the land owners and in the present case it is the right of the land owners to sell it not the developers.  But land owners only granted power of attorney in favour of the developer to sell it on behalf of the land owners.

          So this agreement to sale does not come under the purview of West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993.  But only to deceive the complainant and to grab the amount such sort of false plea is taken by the developers in so many cases.  But strong attitude should be taken by the Forum in all such cases.  After properly appreciating the judgement of the Supreme Court in respect of such sort of dispute and till now no such juegement is passed by Supreme Court even after considering such sort of judgement of Supreme Court we are confirmed.  But there is no observation that it is not applicable as per West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993.

          So, in all respect this complaint is applicable as we are deciding the negligent and deficient manner of service of the ops and also the plea of adopting unfair trade practice.  In this context it is to be mentioned that sale by land owners after developing the building does not come under the purview of West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters), Act 1993, until and unless there is such registered agreement in between the land owners and developers and promoters but in the present case, there is no such registered deed in between the land owners and the developers that promoters to hold that developer got absolute right in respect of certain areas as promoter or developer to sell it.

          So, the said Act is not applicable in this case and the present complaint is maintainable as per C.P. Act.  Whatever it may be we shall have to consider whether there is deficiency or negligence and adopting unfair trade practice on the part of the op.  In this regard we have gathered that op no.9 the developer and/or the landowners have not challenged the registered agreement to sale executed by power of attorney holder the op no.9 on behalf of the op nos. 1 to 8.

          Regarding receipt of money on behalf of the land owners by the op no.9 is also not denied and there is no such materials to believe that shop room has been delivered in favour of the complainant and it is also proved that the ops have not executed the sale deed in favour of the complainant even after receipt of Rs. 2,50,000/- out of the total Rs. 3,47,000/-. 

          So, apparently negligent and deficient manner of service on the part of the ops is well proved.  At the same time it is proved that the possession of the shop room has not been delivered even after receipt of Rs. 2,50,000/- as advance.  When that is the fact, then adopting of unfair trade practice by the ops is well proved and for which complainant has suffered mental pain, agony, financial loss and also lost his earning for want of shop room for which this complainant is entitled to get relief as sort for.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest against op nos. 1 to 3 and 9 with cost of Rs. 10,000/- and op no.9 shall have to pay the cost to the complainant and at the same time the present complaint is allowed exparte against other ops with cost of Rs. 5,000/-.

          Ops jointly are hereby directed to hand over possession of the said shop room as per agreement dated 10.04.2006 to the complainant within one month from the date of this order on receipt of the balance amount of Rs.97,000/- and complainant shall have to deposit that Rs. 97,000/- to this Forum within one month from the date of this order and if ops fail to execute the registered sale deed and fail to hand over the possession of the shop room within one month from the date of this order, in that case op no.9 shall have to pay final compensation amount of Rs. 10,00,000/- (Rupees ten lakhs) to the complainant and that amount shall be deposited within one month from the date of failure to comply the first part of this order.

          But even if op no.9 fails to pay the said amount, in that case op no.9 shall have to pay penal damages  at the rate of Rs.500/- per day till full satisfaction of the decree.

          Further if ops fail to comply the order, in that case complainant may execute the order through Court for execution and registration of sale deed and for taking possession, if possession of the shop room cannot be secured by this Forum in execution, in that case op no.9 shall have to pay that amount along with penal damages as awarded and even if it is found that ops are reluctant to comply this order, in that case ops shall be prosecuted u/s 25 read with 27 of C.P. Act 1986 for which further penalty and fine shall be imposed upon the ops.