ORDER NO. 9 DT. 01.11.10 HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT Appellant through Mr. Goutam Basu, Ld. Advocate, Respondent Nos. 1, 2 & 3 through Mr. Prabir Kr. Ghosh, Ld. Advocate and Respondent No. 5 through Mr. B.Mondal, Ld. Advocate, are present. Heard them in full. Judgement is passed as under :- This Appeal is directed against the order dt. 14.1.10 passed by North 24 Parganas District Consumer Forum in D.F. Case No. 181/2006. The Complainant’s case, in brief, is that on 6.9.05 the complainant paid a sum of Rs. 5.00 lakhs to one Mr. Bhaskar Chowdhury, since deceased, the proprietor of Chowdhury Construction, by way of full and final payment for booking of a self-contained flat at south-east side of the 3rd floor of an amalgamated Municipal Holding No. 30, S.H.K.B.Sarani in Ward No. 18 of South Dum Dum Municipality. Said Mr. Bhaskar Chowdhury died on 29.11.05 leaving behind his wife, who has been impleaded as OP No. 5 as a legal heir and successor of the said deceased in the said complaint. Since the flat in question has not yet been constructed and possession of which has therefore not been delivered to the complainant, so the complaint case has been filed for return of the price already paid with bank interest and for an award of a sum of Rs. 1.00 lakh by way of compensation for gross deficiency of service by the opposite parties and also for a sum of Rs. 25,000/- for harassment and mental agony suffered by the complainant. The said complaint has been dismissed on contest against the OP No. 5 and ex parte against the OP Nos. 1 to 3 with the finding that in the absence of the agreement for sale no liability could be fixed upon the Ops on the terms of the said agreement. In the above Appeal it has been contended on behalf of the complainant/Appellant that OP No. 5 has no liability whatsoever in terms of the aforesaid agreement and the OP Nos. 1 to 3 being the land-owners, who had entered into an development agreement with the deceased Bhaskar Chowdhury, are liable under the said agreement. We are unable to accept such contention on behalf of the Complainant/Appellant. The agreement that has been entered into by and between the complainant and said Bhaskar Chowdhury, since deceased, is evident from the money receipt dt. 6.9.05 annexed to the complaint. Upon careful reading of the said money receipt it appears to us that the agreement, if any, for purchase of the flat in question by the complainant was entered into by and between the complainant and Bhaskar Chowdhury as the sole proprietor of Chowdhury Construction. In the said agreement the land-owners namely the OP Nos. 1 to 3, were not made parties. They only are, therefore, no way obliged to comply with the terms and conditions of the aforesaid agreement that was entered into by and between the complainant and said Bhaskar Chowdhury. It has been contended on behalf of the complainant that the said agreement dt. 6.9.05 is not an agreement simplicitor between the complainant and said Bhaskar Chowdhury, but also an agreement between the complainant and the said OP Nos. 1 to 3 as said Bhaskar Chowdhury (since deceased) executed the said agreement as being the agent of the OP Nos. 1 to 3. Such contention is absolutely baseless. The contents of the said agreement dt. 6.9.05 did nowhere recite that Bhaskar Chowdhury, the sole proprietor of Chowdhury Construction, entered into such agreement with the complainant not on behalf of Chowdhury Construction but only as the agent of the said OP Nos. 1 to 3. There is no reference whatsoever of the development agreement, if any, between Bhaskar Chowdhury and OP Nos. 1 to 3 in the said money receipt dt. 6.9.05. A separate agreement that has been entered into by and between the OP Nos. 1 to 3 and Bhaskar Chowdhury (since deceased) for the purpose of development of the land in question of the said OP Nos. 1 to 3 would not automatically imply that whatever agreement that would be entered into by and between Bhaskar Chowdhury and any other third party would entail an agreement as between that third party and the OP Nos. 1 to 3. On behalf of the complainant it has also been urged that OP No. 5, the wife of the deceased Bhaskar Chowdhury, in her written statement has admitted that the said agreement dt. 06.09.05 was entered into by her deceased husband as being the agent of the OP Nos. 1 to 3. Such contention cannot also be accepted inasmuch as the OP No. 5 who is not a party to the document, cannot implicate the OP Nos. 1 to 3, particularly when the document itself does not give any indication whatsoever that the said agreement was executed by said deceased Bhaskar Chowdhury as only being the agent of the OP Nos. 1 to 3. The OP No. 5 has also not led any evidence whatsoever to establish that such agreement was entered into by the said deceased Bhaskar Chowdhury as only being the agent of the OP Nos. 1 to 3. In the absence of such materials we do not find any substance in the contention as above of the Appellant in the above Appeal. However, we are of the view that since the OP Nos. 1 to 3 were not parties to the aforesaid agreement dt. 6.9.05, nor the same was entered into by the deceased Bhaskar Chowdhury as only being the agent of the said OP Nos. 1 to 3, the liability of making repayment of the amount that was paid by way of earnest money to the proprietor of Chowdhury Construction namely Bhaskar Chowdhury, since deceased, cannot lie upon the OP Nos.1 to 3. With this observation this Appeal shall stand dismissed as the complainant/Appellant has not pressed this Appeal against the OP No. 5. |
