Date of filing : 7.2.2018
Judgment : Dt.25.6.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Shibani Saha and (2) Sayani Saha alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Subhasish Ghosh, (2) Smt. Reba Majumder and (3) Smt. Rita Chakraborty.
Case of the Complainant, in brief, is that predecessor-in-interest of the Complainants namely Chandi Saha being desirous to purchase a flat on the second floor, South East side of a building to be constructed by the OP No.1 on a plot of land measuring about 2 cottah 9 chittaks 23 sq.ft. lying and situated at Mouza – Shibpur, J.L.No.42, comprised in S.P.No.50 in C.S.Plot No.314(P), 375(P), P.S.-Jadavpur, KMC Premises No.154/2/50, N. S. C. Bose Road, Kolkata-700 040 paid Rs.1,00,000/- out of Rs.4,00,000/- to the OP Developer towards consideration amount on 5.2.2002. Subsequently, said Chandi Saha being desirous to purchase entire second floor entered into an Agreement for Sale in November, 2004 in respect of entire 2nd floor at a consideration of Rs.8,00,000/- and paid entire consideration amount to OP No.1 and the OP No.1 delivered possession of the said flat to the Complainants on 4.09.2006 but did not execute and register the Deed of Conveyance in favour of the said Chandi Saha.
The Complainants have further stated that one Pankajini Majumder was sole owner of the said plot of land mentioned hereinabove and after demise of said Pankajini Kajumder legal heirs of said Pankajini Majumder namely Narayan Majumder, Reba Majumder and Rita Chakraborty became owners of the said plot of land.
It is further stated by the Complainant tht the OP Nos.2 & 3 being absolute owners of 2/3 rd portion of the said plot of land entered into a Development Agreement with the OP No.1 on 1.9.2001 for constructing a residential building at premises No.154/2/50, N.S.C. Bose Road, Kolkata-700 040, accordingly General Power of Attorney was executed in favour of OP No.1 by the OP Nos. 2 & 3 and by virtue of that Development Agreement and General Power of Attorney the OP No.1 was empowered to enter into Agreement for sale with intending purchaser in respect of Developer’s allocation.
It is specific allegation of the Complainants in spite of receiving entire consideration amount and legal notice from the end of the Complainant the OP No.1 failed and neglected to execute and register the Deed of Conveyance in favour of the Complainants and finding no other alternative the Complainant by filing the instant Consumer Complaint prays for an appropriate order for execution and registration of the Deed of Conveyance in favour of the Complainant, to pay Rs.1,00,000/- towards compensation and Rs.10,000/- towards cost of litigation and other reliefs.
The Complainant annexed document of an undated Agreement for Sale though there is written November, 2004 as to date of the same, Money receipts, Death Certificate of Chandidas Saha, Advocate’s letter.
Notices were served but the OPs did not turn up so the case proceeded ex-parte vide order No.5 dt.18.4.2018.
The Complainant prays for treating the petition of complaint as affidavit-in-chief.
Decision with reasons
The Complainants have stated that Chandi Saha who was happened to be husband of Complainant No.1 and father of Complainant No.2 entered into an Agreement for Sale with OP No.1 in respect of entire second floor of a building situated at premises No.154/2/50 N.S.C. Bose Road, Kolkata-700 040 at a consideration of Rs.8,00,000/-. Copy of Agreement for Sale filed by the Complainant support such contention of the Complainant. Further, it appears from money receipts that the Complainant paid Rs.8,00,000/-. The Complainants have claimed to have received possession. Possession letter dt.1.9.2006 supports such averment of the Complainant.
On perusal of petition of complaint and Agreement for Sale, it appears that one Pankajini Majumder was absolute owner of a piece of land measuring 2 cottah nine chittaks and twenty three sq.ft. in SP No.50, C.S.Plot No.314(P) 375(P) of Mouza – Shibpur, J.L.No.42, P.S.-Jadavpur, Kolkata-700 040, Dist.- South 24-Parganas by virtue of a Deed of Gift executed by Governor of the State of West Bengal in favour of said Pankajini Majumder and after demise of said owner legal heirs of said owner became owners of the said plot of land. It is, therefore, evident that legal heirs of deceased Pankajini Majumder are joint owners of that plot of land. It also appears from Agreement for Sale that said Pankajini Majumder died intestate leaving behind her one son namely Narayan Majumder and two daughters namely Reba Majumder and Rita Chakraborty as her legal heirs. It is, therefore, evident that said Pankajini Majumder had three successors who became owners of the said plot of land but two of them entered into Development Agreement with OP No.1.
However, we do not find any document or statement to ascertain whether the OP No.2 & 3 had their portion demarcated. In absence of such document it cannot be said that the OP No.2 & 3 are empowered to enter into Development Agreement in respect of the said land.
It is evident that entire consideration amount have been paid by Chandidas Saha to OP No.2 and since 1.9.2001 the Complainants have been enjoying possession. However, it is the duty of the purchaser to be cautious before purchasing any goods or hiring any service whether the service provider is empowered to render such service or not.
In this case, it is clear that the land in question belongs to Narayan Mjumder, Reba Mjumder and Rita Chakraborty and out of these three heirs of Pankajini Majumder only Reba Majumder and Rita Chakraborty entered into Development Agreement with the OP Developer and empowered him to execute Agreement for Sale with the prospective purchasers of flat and the Developer vide such empowerment entered into an Agreement for Sale with the predecessor in interest of the Complainants, which is not permissible under law.
Under such circumstances, we do not find any reason to allow the prayer for the Complainant for registration of Deed of Conveyance in favour of the Complainant.
In the result, the Consumer Complainant does not succeed.
Hence ordered
That CC/59/2018 is dismissed ex-parte without any order as to cost.
