DATE OF FILING                    :     08.07.2014.

DATE OF S/R                            :      18.06.2015.

DATE OF FINAL ORDER      :     24.11.2015.  

Sri Ajit Kumar Jha,

son of Shree Shobha Knata Jha,  

resident of 51/7/1, Netaji Subhas Road, 2^nd floor ( Rishra ),

P.S. Rishra, now residing at 58, Sanatan Mishra Lane, 4^th floor, 

P.S. Golabari,

District Howrah. ……………………………………………………… COMPLAINANT.

• Versus   -

1.         Sri Kamala Kanta Banerjee,

son of late Jamini Kanta Banerjee.

2.         Sri Lakshmi Kanta Banerjee,

son of late Jamini Kanta Banerje.

3.         Smt. Arati Banerjee,

wife of late Sunil Kumar Banerjee.

4.         Shri Debasis Banerjee,

son of late Sunil Kumar Banerjee.

5.         Sri Tanmay Banerjee,

son of late Sunil Kumar Banerjee,

all o.p. nos. 1 to 5 are residing at

7, Ashutosh Mukherjee Lane, P.S. Golabari,

Howrah – 711106.

6.         Sri Sunil Kumar Gupta,

son of Sri Sakhi Chand  Gupta,   

residing at 6 & 7/3, Gulam Abbas Lane, P.S.Golabari,

District Howrah.……………………………………………OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.      

F  I   N   A    L       O   R   D    E     R

1. This is an application  U/S 12 of the C.P. Act, 1986 filed by the petitioner, Bipin Jain, praying for a direction upon the o.p. no. 6, Sunil Kumar Gupta, along with o.p. nos. 1 to 5, to execute and register the proper sale deed by taking the rest of the money from the petitioner or alternatively directing the o.ps. to refund the advance sum of  Rs. 2,10,000/- together with interest @ 18% interest per annum as damage / compensation of Rs. 50,000/-.    

2. The case of the petitioner is that in the instant case the o.p. nos. 1 to 5, Kamala Banerjee and four others, are the owners of the property and the o.p. no. 6,  Sunil Kr. Gupta, is the developer, who is also the constituted attorney of the o.p. nos. 1 to 5. The o.p. nos. 1 to 5 entered into an agreement for o.p. no. 6 for developing the premises no. 7, Ashutosh Mukherjee Lane, P.S. Golabari, and construct a multi storied building which was also erected by the o.p. no. 6.

3. The petitioner being an intending purchaser entered into an agreement with no 6 on payment of an advance sum of Rs. 2,10,000/- on 18.05.2012 for purchasing a residential flat measuring about 500 sq. ft. situated on the 4^th floor.  The o.p. no. 6 agreed to deliver the flat within six months and when after expiry of six months the petitioner came to the place of the  proposed construction then he found the work was  in progress. The o.p. no. 6 told him to deliver possession by 2014. The petitioner again went to the spot but he did not find the o.p. no. 6 and o.p. nos. 1 to 5 informed him that the flat booked by the petitioner is in the share of the owners i.e., o.p. nos. 1 to 5, who cannot ignore the liability of their constituted attorney namely o.p. no. 6. This is a clear case of deficiency in service on the part of the o.p. specifically o.p. no. 6 who is to execute and register the deed of sale of the flat and to pay compensation of Rs. 50,000/- and alternatively to pay Rs. 2,10,000/- along with 18% interest and  Rs. 50,000/- as compensation for the deficiency in service.     

4. The o.p. nos. 1 to 5 contested by filing written version denying the allegations made against them and submitted that this is a false case filed by the petitioner which is not maintainable and the statements made by the petitioner in Para I of his petition are partly true and partly false and the petitioner is not entitled to the reliefs as prayed for against them as the o.p. no. 6 being the constituted attorney of o.p. nos. 1 to 5 received  the earnest money. The o.p. nos. 1 to 5 were in search of a developer for raising the 4^th & 5^th floor and made agreement with the o.p. no. 6 on 01.8.2011 and also they executed the general power of attorney on the same date in favour of O.P. 6. It is was agreed in the agreement that the o.p. nos. 1 to 5 shall get 45% of the share of the newly constructed 4^th and 5^th floor and 55% would go in favour of the o.p. no 6. After execution  of an agreement and general power of attorney the o.p. no. 6 made part construction on the 4^th floor but no construction made in the 5^th floor.  The o.p. nos. 1 to 5 requested o.p. no. 6 for such construction and deliver their shares but he did not pay heed to the same. On 28.04.2014 the o.p. no. 1 received advocate’s letter from the petitioner wherefrom they came to know about o.p. no. 6 who violated the terms and conditions of the agreement. There is no miscarriage of justice. The o.p. no. 6 has no right to misappropriate  the money received from several intending purchasers and he has no right to sell any share of the proposed construction. O.p. no. 6 made several agreements with several persons and took money from them but the o.p. nos. 1 to 5 have no liability for the said agreement and the case be dismissed against them.

5. The o.p. no. 6 did not contest the case and file written  version and thus the case was  heard ex parte against him.        

6. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?
2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.P., ?
4. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

7. All the issues  are  taken up together for the sake of convenience and  brevity for discussion and to skip of reiteration. In support of his case the petitioner filed affidavit as well as his agreement with the o.p. no. 6 for purchase of flat and the agreement  between the o.p. nos. 1 to 5 & 6 for developing the property and also the power of attorney. He also filed the money receipt dated 14.6.2012 which proved the fact that he paid a sum of Rs. 2,10,000/- to the developer, namely o.p. no. 6, against the purchase of a self contained flat measuring about 500 sq. ft. in the holding no. 7, Ashutosh Mukherjee Lane, P.S. Golabari, Howrah, and it is noticed that O.P. 1 to 5 executed the constituted  power of attorney in favour of o.p. no. 6 with whom the petitioner had the agreement. Thus, the o.p. nos. 1 to 5 cannot be made responsible for not executing the deed of sale in favour of the petitioner. In this case the complex was to be constructed by a private builder and U/S 2(1)(g) of the C. P. Act, 1986 there is a clear deficiency in service as well as unfair trade practice on the part of o.p. no. 6 who  in spite of receiving the advance sum of Rs.1,40,000/- neither constructed the building in full nor handed over the property to the petitioner as clear from the motive of the o.p. no. 6. Thus the o.p. nos. 1 to 5 cannot be held responsible for such deficiency in service or unfair trade practice and it is on the part of the o.p. no. 6 who not only duped the petitioner but also the o.p. nos. 1 to 5 who did not get their 45% share as laid down in the development agreement. Further, the petitioner proved his case successfully against the o.p. no. 6 / promoter who did not contest the case and all the oral as well as documentary evidences went unchallenged against the o.p. no. 6 and there is nothing to disbelieve the same.    

In view of discussion and findings and also keeping in mind the submissions of the ld. counsel for the petitioner as well as o.p. nos. 1 to 5 this Forum is of the opinion that the petitioner succeeded in proving his case and he is entitled to the relief as prayed for.

      Hence,

    O     R     D      E      R      E        D

      That the C. C. Case No. 447 of 2014 ( HDF 447 of 2014 )  be  and the same is allowed ex parte against the o.p. no. 6  with  costs of Rs. 10,000/- to be paid by the o.p. no. 6 to the petitioner and the case is dismissed against o.p. nos. 1 to 5.    

      The petitioner is entitled to the relief as prayed for and the o.p. no. 6 being the constituted attorney is to execute and register the deed in favour of petitioner within a period of 30 days from the date of this order failing he would returned Rs. 2,10,000/- to the petitioner with 10% interest on the said amount from the date of receiving the money from the petitioner till the date of payment and the o.p. no. 6 failing to do so the complainant is at liberty to put the order in execution as well as the o.p. no. 6 to pay compensation for a sum of Rs. 20,000/-  in favour of the complainant and for non compliance of the order the amount would carry interest @ 10% per annum from the date of  disposal of the case till payment.

       Supply the copies of the order to the parties, free of costs.

     DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                              

  President,  C.D.R.F., Howrah.