Date of Filing : 06/12/2019
Date of Judgement : 15/06/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Latika Das (since deceased and her legal heirs namely Srikanta Das, Smt. Jayashree Das and Smt. Bonasree Das been substituted in her place) against Opposite Parties (referred as OPs hereinafter) namely Surajit Basu and Shri Narayan Banerjee alleging deficiency in service on the part of the OPs.
Case of the complainant in short, is that Latika Das since deceased, was a tenant in respect of a Shop Room under OP 2 at Premises No. 43 A, Kali Temple Road amalgamated with Premises No. 45A, Kali Temple Road, Kolkata 700 026. In order to construct a multi-storied building after demolishing the existing structure, OP 2 had entered into a development agreement with OP 1 and also executed a General Power of Attorney in his favour for construction of the building. Consequently, OP 1 entered into an agreement with the complainant on 5/1/2007 whereby OP 1, the Developer had agreed to hand over the possession of a Shop Room as described in the schedule ‘C’ of the agreement in the proposed new building and the consideration price was settled at Rs.1,000/-. So, complainant handed over the shop room, which was in her possession in the existing structure, to the OP 1. Thereafter, on completion of the new building after obtaining the sanction plan, OP 1 handed over the possession of the Shop Room, in the new building, but the deed of conveyance has not been executed and registered in favour of the complainant by the OPs inspite of her request. So, the present complaint has been filed praying for directing the OPs to execute and register the deed of conveyance in favour of the complainant in terms of the agreement dt. 5/1/2007, to pay compensation of Rs.1 lakh for harassment and mental agony and to pay litigation cost of Rs.30,000/-.
OP 1 is contesting the case by filing the written version contending specifically that an agreement for sale was entered into between him and the complainant and after the completion of the construction of the building, he has handed over the possession of the shop room to the complainant on 3/3/2008. But the deed could not be executed, as the power of attorney executed in his favour by the land owner OP 2 was revoked/cancelled. There has not been any latches on the part of the OP 1 and he is still ready and willing to execute the deed of conveyance.
OP 2 has also contested the case by filing a separate written version contending specifically that the promise if made by the OP 1 to the complainant, is not binding on the OP 2. It is further contended that he is not aware of any such agreement for sale. The developer being the power of attorney holder had made the arrangement at his own risk. Since the developer being the power of attorney holder misused the power in several respects, OP 2 did not extend the power of attorney after the same expired by efflux of time. So, the OP 2 has prayed for dismissal of the case against him.
During the course of the evidence, parties filed their respective affidavit-in-chief followed by filing of questionnaire and reply thereto and ultimately argument has been heard. Brief Notes of Argument has also been filed by the complainant and the OP 2. So, the following points require determination :-
- Whether there has been deficiency in rendering of service on the part of the OPs.
- 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.
At the very outset, it may be pertinent to point out that there was a development agreement entered into between OP 1 as developer and OP 2 as owner on 22/2/2005, is not in dispute. It is also an admitted fact that a General Power of Attorney was executed by the owner OP 2 in favour of OP 1. The said General Power of Attorney has been filed in this case and on a careful scrutiny of the said power of attorney it appears that there is a specific recital that the developer can enter into agreements with intending purchasers of the flat and transfer the same to intending purchasers out of the developers’ allocation in the building to be constructed. Similarly, it is also specifically stated in the said power of attorney empowering the OP 1 to execute and register the necessary documents including the sale deed in respect of the flats, car parking space out of the developers’ allocation in the newly proposed building.
The agreement for sale entered into between the complainant and the OP 1, the developer on 5/1/2007 is filed, wherefrom it appears, consequent to the development agreement and the power of attorney, OP 1 requested the complainant who was a tenant in the said existing building/structure to vacate and he agreed to hand over a shop room in the new building as described in the schedule ‘C’ of the said agreement. The complainant has also filed a possession letter dt. 5/11/2009 which appears to have been issued by OP 1 stating that the possession of the shop room to the complainant in the new building was already handed over, requesting the complainant to register the shop room as early as possible as the power of attorney in his favour would be cancelled by 30/11/2009. So, admittedly the deed of sale has not been executed and registered in respect of the shop room in favour of the complainant as per agreement dt. 5/1/2007.
Only contention which has been raised by OP 1 is that the sale deed could not be executed as the power of attorney was revoked by the owner. Similarly OP 2 has specifically stated that the power of attorney automatically lost its effect by efflux of time as the period of development agreement was already over. Be that as it may, it is evident that the complainant as per the agreement for sale was entitled to execution and registration of the shop room which has not been done. Since the power of attorney executed in favour of OP 1, the developer, lost its effect. OP 2 being the owner is liable to execute and register the deed of conveyance in favour of the complainant. OP 1 may be a confirming party in the said deed of conveyance. However, in the given facts and situation of this case, we find no justification to pass any order of compensation as prayed by the complainant.
Hence,
Ordered
CC/639/2019 is allowed on contest against OPs. OPs are directed to execute and register the deed of conveyance in favour of the complainant in respect of the shop room as per agreement dt. 5/1/2007, within 2 months from this date. OPs are further directed to pay cost of Rs.8,000/- to the complainant within the aforesaid period of 2 months.
