Date of filing: 05/09/2018
Judgment date: 15/03/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Sri Prabir Mondal alias Sona Mondal under section 12 of the Consumer Protection Act 1986 against the opposite parties (referred as OPs hereinafter) namely (1) Sri Koushik Bhattacharjee (2) Sri Mihir Baran Chatterjee (3) Sri Timir Baran chatterjee (4) Sri Sudhir Baran Chatterjee (5) Smt. Archana Banerjee (6) Smt. Swapna Bhattacharjee and (7) Sri Abhijit Banerjee alleging deficiency in rendering of service on the part of the OPs.
Case of the complainant in short is that OP Nos. 2 to 7 are the joint owners of the ‘A’ Schedule property. They entered into an agreement for development on 01/09/2015 with the opposite party no. 1. Complainant was a monthly tenant under OP Nos. 2 to 7 in respect of a shop room on the ground floor at the said ‘A’ schedule premises being No. 12, Satyen Roy Road, under Behala Police Station, Kolkata – 700 034. Opposite parties requested the complainant for cooperation and assistance for such development work. Subsequently as per the negotiation and discussion, a registered agreement for sale was executed on 16/12/2015 by and between the complainant and the opposite parties whereby OP 1 as developer and constituted attorney of the OP 2 to 7 agreed to sell the shop room in the proposed new building at a total consideration price of Rs. 2,00,000/- of which complainant paid the sum of Rs. 90,000/- as earnest money. As per the terms of agreement opposite parties agreed to deliver the possession of the newly constructed shop room to the complainant within 12 months from the date of sanctioned plan of the building. But there has not been any progress of the development work. Till filing of the case three years had already been lapsed from the date of execution agreement for sale. OP 1 has also not informed to the complainant whether any plan has yet been sanctioned from the Kolkata Municipal Corporation. Complainant already handed over the vacant possession of the shop room on the date of execution and registration of the agreement for sale. A notice was also sent by the complainant through his Ld. Advocate on 04/04/2018 and on 30/06/2018 to know about the progress of the work regarding obtaining of sanctioned plan but OPs did not reply and thus the present complaint has been filed praying to direct the opposite parties to execute and register the deed of conveyance as per the agreement for sale, to deliver the peaceful khas possession of the ‘B’ schedule property in the agreement for sale or in alternatively to pay market value of the shop room with interest on commercial rate, to pay compensation of Rs. 1,00,000/- and litigation cost of Rs. 10,000/-
OP No. 1 is contesting the case by filing the written version contending specifically that on the basis of mutual understanding the agreement for sale was executed in favour of the complainant. The OP 2 to 7 being the owner did not execute any development agreement neither executed any power of attorney in favour of the opposite party No. 1. The OP 2 to 7 also did not submit any structural plan before the concerned authority for sanction. So the OP No. 1 is not in a position to execute any document in favour of the intending purchaser. It is specifically stated by the OP 1 that he is ready to pay back the earnest money paid by the complainant. So the OP No. 1 has prayed for dismissal of the case.
It appears from the record that OP Nos. 2 to 7 did not turn up on receipt of the notice and thus the case was directed to be proceeded exparte against them. However, at the time of argument OP 2 to 7 participated and filed the brief notes of argument.
During the course of trial complainant filed examination in chief on affidavit followed by filing of questionnaire and reply thereto. OP 1 also filed the affidavit in chief followed by filing of questionnaire by the complainant but in spite of repeated opportunity given OP 1 failed to file any reply. However, written notes of argument has been filed by the OP 1. OP 2 to 7 also participated at the time of argument and filed written notes of argument.
So the following points require determinations:
- Whether there has been any deficiency in rendering of service on the part of the opposite parties?
- Whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
Both the points are taken up together for discussion in order to avoid repetition. In support of his claim complainant has filed a copy of agreement for sale dated 16/12/2015, wherefrom it appears OP 1 as developer / confirming party and also as constituted attorney of the owners i.e. OP 2 to 7 agreed to sell the shop room as described in the 2nd schedule of the said agreement, on payment of the consideration price of Rs. 2,00,000/-. It is evident from the said agreement for sale that there are clear recitals that the owners have entered into an agreement for development dated 01/09/2015 with the developer. It is further stated that the owners / vendors have also executed a general power of attorney dated 01/09/2015 in favour of the developer to do all the acts, deeds, and things on behalf of the owners in connection with the said premises. The agreement also reveals that an amount of Rs. 70,000/- only had already been paid by the purchaser / complainant as advance out of consideration price of Rs. 2,00,000/-.
On a careful scrutiny of the written version filed by the OP No. 1 it appears that the execution and registration of the agreement for sale dated 16/12/2015 has not been disputed and denied neither he has denied the payment of the earnest money by the complainant which according to the complainant is Rs. 90,000/- even though in the agreement it is mentioned as 70,000/-. It may be that further sum of Rs. 20,000/- has been paid by the complainant subsequent to the execution of the agreement. The only contention raised by the OP 1 is that no development agreement was executed between him and the owners nor the owners executed any general power of attorney in his favour. But this claim of the OP 1 cannot be accepted as the specific recital of the agreement about the execution of development agreement and general power of attorney dated 01/09/2015 between the OPs has already been highlighted above. So such contention of OP 1 that he failed to carry out the work due to there being no development agreement or any power of attorney, is devoid of any merits. It is evident that the complainant who was admittedly a tenant in respect of a shop room under OP 2 to 7 and which was source of his income, was made to believe that the proposed new building was constructed as settled and agreed by the opposite parties and thus he handed over and vacated his shop room. So OP 1 being the developer is liable to pay the present market value of the said shop room.
It further appears from the said registered agreement for sale that on the date of registration of the agreement total market value of the shop room was 7,17,600/-. There cannot be any denial and dispute that the present market value of the said shop room must be more than that. Even though complainant has not filed any document to show the exact present market value of the shop room but taking into consideration the market value stated in the registered agreement for sale, we find, it will be justified to direct the OP 1 to pay Rs. 8,00,000/- towards market value of the shop room.
So far as OP 2 to 7 are concerned, by filing the brief notes of agreement, it is submitted by them that they do not have any knowledge about the alleged agreement for sale dated 16/12/2015 entered into between the OP 1 and the complainant. It has also been submitted that till date no building plan has been sanctioned and accordingly no construction work has been carried out containing of several flats and the shop rooms. According to OP 2 to 7, OP 1 did not show any interest to develop or to raise the construction of the building, the plan for development of the said premises has not been matured so OP 2 to 7 have contended that they are not liable for any deficiency. But in this context it may be pertinent to point out that it is evident from the agreement for sale dated 16/12/2015 that OP Nos. 3 & 6 have signed in the said agreement for sale as witnesses. It that be so than the contention of OP 2 to 7 that they had no knowledge about the execution of agreement for sale dated 16/12/2015 by OP 1 as constituted attorney and as developer in favour of the complainant, is nothing but an afterthought. OP 2 to 7 being owners under whom the complainant was a tenant made him to believe about raising of the new building and that he would be sold the shop room in the proposed new building as described in the said agreement for which complainant vacated his shop room. Be it mentioned here that it is not disputed by any of opposite parties that complainant has not vacated the shop room. So in such a situation OP 2 to 7 cannot shirk their responsibility and thus liable to pay compensation. An amount of Rs. 1,00,000/- as claimed by the complainant will be justified as compensation to be paid by the OP 2 to 7.
Hence,
ORDERED
CC/538/2018 is allowed on contest. OP 1 is directed to pay Rs. 8,00,000/- (market value of the shop room) to the complainant within 60 days from this date and OP 2 to 7 are directed to pay Rs. 1,00,000/- as compensation to the complainant within the aforesaid period of 60 days. All the opposite parties are also directed to pay litigation cost of Rs. 10,000/- to the complainant within the aforesaid period of 60 days. In default of payment the entire sum shall carry interest @8% p.a. till realization.
