Judgment : Dt.15.1.2018

Shri S. K. Verma, President

            This is a complaint made by one Surajit Saha, son of Swapan Kumar Saha, residing at 101, Regent Colony,  P.S.-Jadavpur, Kolkata-70 040 against Sri Subir Saha, son of Sonar Chand Saha, 67/62, Manick Bandopadhyay Sarani, Kolkata-700 040, OP No.1, M/s BRC Developers, a partnership firm, 45/21,Moore Avenue, P.S.-Regent Park, Kolkata-700 040, OP No.2, Sri Sanjoy Bose, son of Sri Tarapada Bose, 86/1, Santinagar Colony, P.S.-Regent Park,Kolkata-700 040, OP No.3, Sri Bhaskar Chakroborty, son of Sri Amiya Chakroborty, 36, Santinagar Colony, P.S.-Regent Park,Kolkata-700 040, OP No.4 and Sri Tapan Roy, son of Sri Sudhir Ranjan Roy, 42, Santinagar Colony, P.S.-Regent Park,Kolkata-700 040, OP No.5 praying for passing an order directing the OPs to execute and register the deed of conveyance in favour of the Complainant, passing an order directing the OPs to make payment of interest to the tune of Rs.6,00,000/, passing an order directing the OPs to pay Rs.2,00,000/- as compensation and litigation cost of Rs.50,000/-.

            Facts in brief are that Complainant is a consumer. OP No.1 by written of a deed of gift executed on 14.6.2008, became the owner in respect of landed property measuring more or less 1 cottah 1 chittack 14 sq.ft. together lying and situated in C.S.Plot Nos.189(P) J.L.No.42 under Mouza-Shibpur, being 67/62 Manick Bandopadhyay Sarani corresponding to postal address in the KMC, premises No.25B, Santinagar Colony under ward No.97, and Sub-Registration office at Alipore. OP No.2 is a partnership firm engaged in business of development/promotion represented by OP No.3 & 5. OP No.2 to 5 are the partners of the OP No.1. OP No.2 to 5 to develop the said premises, entered on 14.8.2008 into a development agreement with the OP No.1 for the terms and conditions. The developer entered into an agreement for sale on 29.3.2011 whereby OP No.2 to 5 offer to sale for a flat to the Complainant, having two bed rooms, one kitchen-cum-dining, two bathrooms, one balcony measuring 600 sq.ft. in the first floor, along with proportionate share of the land and some common rights and facilities to be enjoyed. Complainant, in terms of the development agreement paid the OP No.2 to 5 the agreed consideration of Rs.8,50,000/-. OP No.2 to 5 after receiving the said consideration handed over the physical possession of the suit property on 27.11.2011 to the Complainant in complete habitable condition. Complainant after making payment of consideration in full and finally asked the OP No.1 as well as OP No.2 to 5 to execute the deed of sale and registration thereof. But at the relevant point of time  of making payment to the developer and taking possession of the suit property the Complainant insisted to execute deed of conveyance. But the OP No.1 and 2 to 5 represented to the Complainant that they would execute deed of sale with the registration of other flats and so asked to wait for sometime. Since taking possession till date instead of several representations the OPs have not executed and registered the deed of conveyance. Complainant made several representations but of no use. OP No.2 to 5 represented to the Complainant that they are ready and willing to execute the deed of conveyance but as they got no legal authority to execute the said deed of conveyance. The Complainant being frustrated with the attitude of the OP No.1 as well as OP No.2 to 5, issued a notice. But the execution of sale and registration in respect of the suit property could not be done because the owners have revoked the power of attorney. So, Complainant filed this case.

            OP No.1 filed written version and denied the allegations of the complaint. OP No.1 has stated that this Forum has no jurisdiction to try this suit. Further, OP No.1 has specifically denied the allegations made in the paragraphs of the complaint petition. Further, it is stated this OP entered into an agreement for construction of multistoried building and the same is an unregistered agreement as per the law the said agreement has no right to execute the deed of conveyance. OP No.1 has also that they did not receive any money from the developer. So, OP No.1 has prayed for dismissal of this complaint.

            OP No.2 to 5 filed written version and denied the allegation of the complaint. Their contention is that the Complainant is motivated and mala fide. It is not maintainable in law and also in fact Complainant did not approach the Forum with clean hands. These OPs  have stated that on very first day of agreement they made complainant aware of the facts that they did not have power of attorney to execute the deed of conveyance, but they were ready and willing to execute deed of sale in respect of the suit property. It is the OP No.1 who is the land lord and they are not interested in making the deed of conveyance. They have denied the allegation of the complaint and prayed for dismissal of this complaint petition.

Decision with reasons

            Complainant filed affidavit-in-chief to which OP No.1 filed questionnaire and OP No.2 to 5 submitted a petition that they will not file questionnaire against the evidence of the Complainant. Against the questionnaire of OP No.1 Complainant filed affidavit-in-reply. OP No.1 filed evidence and OP No.2 to 5 filed a prayer for treating the written version as affidavit-in-chief. Complainant filed questionnaire to the affidavit-in-chief of OP No.1.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint petition, it appears that the Complainant has prayed for passing an order directing the OPs to execute and register the deed of conveyance in favour of the Complainant. In this regard, it appears from the written version of the OPs that there is no dispute that Complainant did not pay the agreed consideration money. The only dispute which is placed by the OPs through the written version as well as affidavit-in-chief, questionnaire and affidavit-in-reply that at the time when OP No.2 to 5 entered into an agreement for sale, they did not have any authority to make such agreement because the power of attorney was not given to them. On this ground, OP No.1 has challenged the authority of OP No.2 to 5 to make the deed of conveyance in favour of the Complainant. On the contrary, OP No.2 to 5 have stated that they are ready and willing to make deed of conveyance in favour of the Complainant and it was the duty of OP No.1 to provide power of attorney to them.

            On perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply, it is clear that the dispute of not having power of attorney in favour of the OP No.2 to 5, developer, has to be resolved. Since Complainant is in possession of the flat and has paid the total consideration money, it is incumbent upon OPs to make the deed of conveyance in favour of the Complainant. If we analyse the situation where developer, OP No.2 to 5, did not have authority to make the deed of conveyance, it becomes the bounden obligation of the owner to make such deed because OP No.1 has not objected to the payment made by the Complainant and also that the agreement for sale was entered between OP No.2 to 5 and Complainant.

            As such, we are of the view that Complainant is entitled to the relief of deed of conveyance in his favour.

            Complainant has prayed for payment of interest of Rs.6,00,000/- which does not appear to be justified. So, Complainant is not entitled to this relief.

            Complainant has also prayed for compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.

            Considering the facts and circumstances of this case, it appears if compensation of Rs.50,000/- and litigation cost of Rs.10,000/- is awarded object of justice would be served.

Hence,

ordered

          CC/209/2017 and the same is allowed on contest in part against the OPs. OPs are directed to make deed of conveyance of the schedule flat in favour of the complainant within three months of this order in default the deed of conveyance would be made through this Forum. They are also directed to pay Rs.50,000/- as compensation and Rs.10,000/- as litigation cost with the same period, in default the total of Rs.60,000/- shall carry interest @ 10% from the date of this order till realization.