FINAL ORDER

Samaresh Kumar Mitra, Member.

              The case of the complainants’ in short is that one Mr.Ranjit Roy Chowdhury was the owner in respect of 5 Cottahs, 9 Chittacks of dilapidated residential house within Uttarpara-Kotrung Municipality being Municipal holding No.245, G.T. Road, P.O. & P.S.-Uttarpara, Dist.-Hooghly.  That Mr. Roy Chowdhury executed an agreement for developing the above mentioned property on 12.8.2005 with some condition stipulated in the said deed of agreement and registered a general power of attorney giving to the developer O.P. No.1, Sushil Nath to develop the property on the terms and conditions laid down in the agreement.  Be it noted that Mr. Ranjit Roy Chowdhury expired on 3.9.2005 making the O.P. No.1 developer without any power of attorney.

That the O.P. No.1 on the strength of the abovementioned deed of agreement and registered general power of attorney dated 12.8.2005, impressed the petitioners and petitioners had agreed to purchase one flat of 917 Sq ft. on 24.8.2006 and another flat measuring 250 Sq ft. super built up area in the ground floor respectively together with its undivided proportionate and impartable share or interest of those flats with all common parts, common areas and facilities on 24.8.2006.  In July, 2008 the O.P. No.1 executed an agreement for sale with the petitioners in respect of one flat measuring 917 Sq ft. and 250 Sq ft. super built area and second flat measuring 250 Sq ft super built area.

The O.P. No.2 to 5 executed an unregistered agreement dated 14.12.2009 notarized on 21.12.2009 wherein they agreed to permit the O.P. No.1 to develop the same property which their predecessor deceased Ranjit Roy Chowdhury permitted O.P. No.1 in the same manner and tone.  The O.P. No.1  executed two separate deed of agreement dated 7.6.2010, one for flat measuring 917 Sq ft and second for measuring 300 Sq ft respectively superseding the earlier deed of agreement dated July, 2008.  The complainant have paid altogether Rs.2,71,000/- earlier plus Rs.35,000/- for the 917 Sq ft flat and Rs.50,000/- for 300 Sq ft flat.  Balance payment was to be made on sanction of bank loan in two parts.

The O.P. No.1 has also entered into a fresh agreement with O.P. No.2 to 5 stipulating therein that the developers shall complete the works of construction within three months from the date of agreement dated 14.12.2012, because earlier agreement dated 14.12.2009 was terminated on 23.11.2010 by O.P. No.2 to 5 due to non-compliance of terms by O.P. No.1.

That being allured by the said agreement and at the asking of O.P. No.1 the petitioner applied for the housing loan from M/s Dewan Housing Finance Ltd. in last part of January, 2013.  The housing finance company has not yet sanctioned the loan questioning the documents of agreement that the same did not indicate any power of attorney by the O.P. No.2 to 5 in favour of the O.P. No.1. That learning the stands of finance company the petitioner through their Advocate Mr.Utpal Chakraborty sent a letter dated 11.3.2013 to O.P. No.2 to 5.  said Advocate further intimated that  the O.P. No.1 has no right to execute the registered deed of sale in absence of any registered power of attorney in his favour to transfer the property  to the petitioners.  The O.P. No. 2 to 5 through their advocate replied that they are not in a position to give any registered power of attorney in favour of O.P. No.1 as he did not comply the terms of agreement with them. 

That O.P. No.1 is very cunning and with a view to deprive the petitioners in collusion and conspiracy with O.P. No.2 to 5 with a view to transfer these flats measuring 917 Sq ft and 300 Sq ft respectively in the middle part of August, 2013, he started showing these flats to another party.  But the petitioner afraid that the O.P. No.1 has already transferred the “Ka-1” schedule property to any third party.  The O.P. No.1 imposed some conditions for making payment of consideration money embodied in the agreement for sale dated 7.6.2010.

The petitioners were/are ready to pay the balance/outstanding money any time on payment of balance money of Rs.2,20,000/- for the “K-1” schedule flat.  The petitioner sent a notice to the O.P. No.1 dated 26.7.2013 asking him to make and prepare the sale deed within 15 days for the approval of their advocate and for registering the same within 30 days of notice and further intimated in case he fails to comply the terms of notice .

That the O.P. No.1  sent a letter dated 5.8.2013 to the complainants stating that the agreement in between petitioners and O.P. No.1 shall stand cancelled and further intimated that if the petitioners did not comply the terms of agreement the O.P. No.1 will refund the advance money, which the petitioners was not agreed.

      That the behaviour and attitude of the O.P. No.1 and O.P. No.2 to 5 are harassing and neglecting the petitioners which tantamount to deficiency of service on the part of the OPs.  Finding no other alternatives the petitioners filed this case before this Forum for relief and prayed to direct the OPs to execute and register the flats described in the “K-1” schedule property on receipt of the balance consideration money, to pay compensation of Rs.50,000/- for harassment and to pay Rs.37,000/- for 37 months delay to execute and register the flat in question.

The O.P. No.1 contested the case by filing written version denying inter-alia all the material allegations as leveled against him.  This O.P. stated that complainant booked one flat in ground floor of the premises situated at 245, G.T. Road, under P.S.- Uttarpara with the ambit of Uttarpara-Kotrung Municipality.  On the basis of the booking the O.P. No.1 started to make construction over the said schedule property and invested huge amount of money for the construction of the same.  After completion of the said flat as desired by the complainant, the complainant cancelled the above mentioned booking and started to demand another flat within the same consideration, which was absolutely impossible for O.P. No.1.  Hence, the case.

The O.P. No. 2 to 5 also contested the case by filing written version denying the entire material allegations as leveled against them.  They submit that complainants having knowledge about execution of Registered General Power of Attorney dated 12.8.2005 by one Mr. Ranjit Roy Chowdhury since deceased, the original owner as well as the predecessor of these Ops, in favour of the O.P. No.1 and the said Ranjit Roy Chowdhury expired on 3.9.2005 and thus it is settled principal of law that after expiry of the executants of a power of attorney, the said power of attorney became invalid before the eye of law and thus the alleged agreement dated 24.8.2006 entered into by the complainant and O.P. No.1 at their own risk since at the time of execution of said agreement the O.P. No.1 cannot put his signature as a constituted attorney of the deceased Ranjit Roy Chowdhury. The complainant cannot have any claim against these Ops, who are the hapless persons and have been victimized of illegal and unfair trade practice of OP No.1.  Thus their names ought to be expunged from the said complaint and if the complainants have any grievance, the same should be against the O.P. No.1. not against these answering O.ps.

These O.ps. further stated that the alleged deed of agreement dated 7.6.2010 was executed by the O.P. No.1 by impersonating himself as the constituted attorney of deceased Ranjit Roy Chowdhury and the O.P. No. 2 to 5 were not the signatory and parties to the said alleged agreement dated 7.6.2010.  The Opposite Parties including the OP No.2 had any collusion and conspiracy with the OP No.1 with a view to transfer these flats measuring 917 Sq ft and 300 Sq ft respectively as alleged and it is not a fact that the answering OPs were aware about showing the flats by OP No.1 to the petitioner and the answering O.P in no way responsible about transferring of the “K-1” schedule property to any third party.

These Ops further stated that they are willing to execute registered deed of conveyance in favour of the complainant subject to making payment of consideration amount in respect of said alleged flats in terms of present market price.

The complainants filed evidence on affidavit which is nothing but the replica of complaint petition.  The argument advanced by both the parties heard in full. The complainants and O.Ps. both filed brief notes of argument which are taken into consideration for passing final order.   

From the discussion herein above, we find the following Issues/Points for consideration.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants are the ‘Consumers’ of the opposite party?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the O.Ps carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to him?

DECISION WITH REASONS

             In the light of discussions here in above we find that the issues/points should be decided based on the above perspectives.

(1).Whether the Complainants Miss Radhika Garg, Satyanarayan Garg and Mrs. Usha Garg are ‘Consumers’ of the opposite party?

 From the materials on record it is transparent that the Complainant is a “Consumer” as provided by the spirit of section 2(1)(d)(ii) of the Consumer Protection Act,1986. The complainants herein is the consumer of the OP, as the complainants being the intending purchaser paid consideration money and possessing the schedule mentioned flat so they are entitled to get service from the OP as consumers.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

     Both the complainant and opposite parties are residents/having office address within the district of Hooghly. The complaint valued Rs.4,58,000/- for loss sustained by the complainant and as compensation for mental agony and other expenses ad valorem which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.      

 (3).Whether the opposite party carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

 The case of the complainants are that the Petitioner No.1 entered into an agreement with O.P. No.1 for purchase of a flat measuring 917 Sq ft super built up area in the ground floor of the schedule stated in the complaint petition and agreed to obey the terms and condition as per agreement. It is also stated by the complainant that O.P. No.1 entered into a development agreement with Mr. Ranjit Kr. Roy Chowdhury on 12.8.2005 and after the demise of said Ranjit kr. Roy Chowdhury, the O.P. No.1 further made an agreement with the legal heirs of the deceased owner to develop the property in same manner and tone.  Later on the said O.P. No.1 also executed two separate deeds of agreement dated 7.6.2010 for a flat of 917 Sq ft and for a separate flat of 300 Sq ft with super built up area respectively and paid Rs.2,71,000/- for 917 Sq ft and also paid Rs.55,000/- in total for 300 Sq ft.  O.P. No.1 promised to deliver 917 Sq ft flat within two months and 300 Sq ft flat within six months from the date of agreement.  O.P. No.1 also entered into a fresh agreement with O.P. No.2 to 5 on 14.12.2012 stating that completion of construction work will be within three months from the date of agreement dated 14.12.2012.  Petitioner was ready to purchase flat measuring 917 Sq ft super built up area and asked the O.P. No.1 to make and prepare the sale deed within 15 days from the approval of the advocate and register the same within 30 days and subsequently paid a sum of Rs.9,39,925/- on 27.2.2016 to O.P. No.1.  After getting the consideration money the O.P. No.1 gave the possession of the flat to Mrs. Radhika Garg represented by her father and constituted attorney of Satya Narayan Garg on 15.11.2015.  According to the complaint petition the O.P. No.2 to 5 are duty bound to execute and register the sale deed in favour of the complainant with O.P. No.1.

 The O.P. No.1 in his argument stated that he entered into an agreement with Ranjit Kr. Roy Chowdhury in respect of the property standing on 245, G.T. Road, P.O. & P.S.-Uttarpara, Dist.-Hooghly to develop the said property in two phases  and accordingly started the construction of 1st phase with obligation to allot 35% of the total construction area to the landlord and equivalent to more or less 3000 Sq ft and out of which owner should be provided a flat having an area measuring 1620 Sq ft on the top floor of the 1^st phase construction and another flat measuring 380 Sq ft toward Ganga side and owner should received an amount of Rs.900/- per Sq ft in lieu of remaining balance constructed portion equivalent to measuring 100 Sq ft on the basis of that agreement O.P. No.1 started to raise first phase construction and simultaneously started making booking of flat to the intending purchaser including the petitioner Radhika Garg and after the demise of original owner the legal heirs i.e. O.P. No.2 to 5 encouraged this O.P. to continue the work and further promised to execute power of attorney in his favour.  All on a sudden O.P. No.2 to 5 asked the O.P. No.1 for increasing their share and the O.P. No.1 immediately denied the proposal of O.P. no.2 to 5.  So, O.P. No.2 to 5 denied to execute the power of attorney even refused to do the same and deliberately stopped the construction work.  So, the O.P. No.1 compelled to execute new agreement on 14.12.2009 enhancing the owners part total super built up area from 35% to 38% and also increased the rate of consideration amount than earlier. The O.P. No.2 to 5 started to disturb the construction work as a result the project became delay for not signing the renewal sanction plan and for release of papers for getting electric connection. So, the O.P. No.1 became financially handicapped and with an aspiration to complete the venture he executed further agreement on 14.12.2012 and increased the owner share to 40% and super built up area has been converted to carpet area and the rate of construction value has been increased from Rs.900/- per Sq ft to Rs.1800/- and  allotment of flat has been changed from top floor to 1^st floor and the O.P. No.2 to 5 asked the O.P. No.1 to deposit a sum of Rs.32,00,000/- for starting the work and further they demanded many interior addition and alteration according to their choice free of cost.  Lastly O.P. No.1 completed the 1^st phase construction by August, 2013 except some finishing works.  At the relevant point of time the O.P. No.2 to 5 again stopped the work of the project and refused to register the flat to the purchaser and nor gave power of attorney to the O.P. No.1.  Ultimately on April, 2014 by giving one notice from their Lawyer that the entire construction made by the O.P. No.1 and money of Rs.14.5 lakh given by the O.P. no.1 to them had been forfeited. According to this O.P. the flat of this complainant measuring 917 Sq ft is ready since March, 2013.  The complainant sent a letter dated 5.3.2013 through her Ld. Advocate requesting the O.P. No.2 to 5 to register the flat in her favour but the O.P. No.2 to 5 denied.  O.P. No.1 also assailed that after the demise the erstwhile land owner the terms and condition of the agreement will vest upon the legal heirs of the deceased.  So, the O.P. No.1 has every right to execute and register the 65% allocation to other parties by taking advance for the booked unit.

He also stated that O.P. No.2 to 5 are the legal heirs of land owner.  As such agreement between the land owner and developer is also binding upon the O.P. No.2 to 5.  In the written version O.P. No.2 to 5 stated that they are willing to execute and register the deed of conveyance in favour of the complainant subject to making of consideration amount in respect of the said flat in terms of present market price.  As the present market price is three to four times higher than that of actual the consideration.  So, O.P. No.2 to  5 for the sake of their greed have been harassing the purchasers in illegal ways to get more money.  The O.P. No.1 admitted that he received a some of Rs.9,39,925/- and gave possession of the flat of the complainant in the month of January, 2016/November, 2015.  The answering O.P. also paid the full amount to the O.P. No.2 to 5 in lieu of the land utilized for the construction of the 1^st phase.  He invested a sum of Rs.60,00,000/- since year 2005 and the said money was blocked without having any return.  So, he compelled to pay heavy interest for which his other business also got ruined.  Due to impediment cost by O.P. No.2 to 5 he could not execute and register the said flat to Radhika Garg.  He is always ready and willing to register the flat in favour of the complainant but due to unethical resistance on the part of the O.P. No.2 to 5 by way of non-execution of power of attorney in favour of the O.P. No.1.  So, he has no fault but O.P. No.2 to 5 are liable for delay in execution and registration of flat.  Lastly the O.P. No.1 averred that he is not liable for the harassment sustained by the complainant and harassment caused due to epithetic attitude of O.P. No.2 to 5.

    O.P. No.2 to 4 in its written notes of argument stated that the purported development agreement dated 12.8.2005 executed between Ranjit Roy Chowdhury as owner being the predecessor of the O.P. No.2 to 5 and the O.P. No.1 and it is unregistered one.  Subsequent agreement executed on 14.12.2009 and 14.12.2012 in between the O.P.  No.1 and O.P. No.2 to 5.  The also stated that after the death of Ranjit Roy Chowdhury the power given to the O.P. No.1 in respect of general power of attorney dated 12.8.2005 ceased by operation of law with the death of executer.  O.P. No.2 to 4 never executed any register power of attorney in favour of O.P. No.1 and any other person with respect of the properties of this case.  The O.P.  No.1 has no locus standy or right to enter into agreements with any person including the complainants with respect to any property of O.P. No.2 to 5.  There is no agreement in between complainants and O.P.  No.2 to 5.  The complainants are not the consumers of O.P. No.2 to 5.  So, they cannot seek relief before this forum. O.P. No.2 to 4 instituted a civil suit in the Ld. Court of Civil Judge, (Sr. Division), Hooghly at Serampore against this O.P. No.1 being T.S. No.102/2017 praying for recovery of possession, permanent injunction and eviction with respect to the properties over which the flat stands.  He also stated that O.P. No.2 to 5 are the legal heirs of land owner.  As such agreement between the land owner and developer is also binding upon the O.P. No.2 to 5.  In the written version O.P. No.2 to 5 stated that they are willing to execute and register the deed of conveyance in favour of the complainant subject to making of consideration amount in respect of the said flat in terms of present market price.  As the present market price is three to four times higher than that of actual the consideration.  So, O.P. No.2 to 5 for the sake of their greed have been harassing the purchasers in illegal ways to get more money.

     The O.P. No.1 admitted that he received a some of Rs.9,39,925/- and gave possession of the flat of the complainant in the month of January, 2016/November, 2015.  The answering O.P. also paid the full amount to the O.P. No.2 to 5 in lieu of the land utilized for the construction of the 1^st phase.  He invested a sum of Rs.60,00,000/- since year 2005 and the said money was blocked without having any return.  So, he compelled to pay heavy interest for which his other business also got ruined.  Due to impediment cost by O.P. No.2 to 5 he could not execute and register the said flat to Radhika Garg.  He is always ready and willing to register the flat in favour of the complainant but due to unethical resistance on the part of the O.P. No.2 to 5 by way of non-execution of power of attorney in favour of the O.P. No.1.  So, he has no fault but O.P. No.2 to 5 are liable for delay in execution and registration of flat.  Lastly the O.P. No.1 averred that he is not liable for the harassment sustained by the complainant and harassment caused due to apathetic attitude of O.P. No.2 to 5.

            O.P. No.2 to 4 in its written notes of argument stated that the purported unregistered development agreement dated 12.8.2005 executed between Ranjit Roy Chowdhury as owner being the predecessor of the O.P. No.2 to 5 and the O.P. No.1. Subsequent agreement executed on 14.12.2009 and 14.12.2012 in between the O.P. No.1 and O.P. No.2 to 5.  They also stated that after the death of Ranjit Roy Chowdhury the power given to the O.P. No.1 in respect of general power of attorney dated 12.8.2005 ceased by operation of law with the death of executer.  O.P. No.2 to 4 never executed any register power of attorney in favour of O.P. No.1 and any other person with respect of the properties of this case. The O.P. No.1 has no locus standi or right to enter into agreements with any person including the complainants with respect to any property of O.P. No.2 to 5.  There is no agreement in between complainants and O.P. No.2 to 5.  The complainants are not the consumers of O.P.No.2 to 5.  So, the complainants cannot seek relief before this forum against the OP No.2 to 4.  O.P. No.2 to 4 instituted a civil suit in the Ld.Court of Civil Judge, (Sr. Division), Hooghly at Serampore against this O.P. No.1 being T.S. No.102/2017 praying for recovery of possession, permanent injunction and eviction with respect to the properties over which the flat stands.

After perusing the complaint petition, written version, evidence on affidavit and hearing the parties this Forum is in the opinion that the complainant paid the consideration money during agreement for sale and after completion of flat paid major portion of consideration money and in possession since then. When the OP No.1 & OP No.2to5 failed to execute &register the deed of conveyance then the complainants filed the instant complaint petition praying direction upon the OP to execute and register the flat which has been specifically mentioned in Ka-1 schedule property out of Ka schedule property and compensation for harassment since long causing mental pain and agony. The OP No.1 in his written version admitted that he has taken the consideration money from the complainant and agreed to execute and register the sale deed in favour of the complainants after getting the balance consideration money.  The O.P. No.2 to 5 also agreed to execute and register the sale deed in favour of the complainants.  So, this Forum is in the opinion that the complainant after paying the balance consideration money to the O.P. No.1 is entitled to get their flat as described in the Ka-1 schedule of the complaint petition registered by O.P. No.1 to 5.  Delay of execution & registration of deed of this complainant caused due to deficiency of service of the opposite parties so the opposite party cannot evade their responsibility of paying compensation to these complainants.

It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the deed executed in favour of them but it remained unheeded. The O.P. no.1 tried to evade his responsibility by putting blame on O.P. No.2 to 5 and O.P. No.2 to 5 tried to get owner’s allocation from the O.P. No.1 in this consumer dispute which is not tenable in the eye of law.

   Therefore relying upon the materials on record we have no hesitation to hold that the complainants are entitled to an order of getting the deed executed in their favour. Since the landowner as well as well as developer did not take appropriate steps for execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant. However, since the complainants are in possession considering the loss suffered by them, they are entitled to compensation of Rs.20,000/- from the opposite parties.

       Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party for non execution & registration of the impugned flat by adducing cogent document/evidence so the prayer of the complainant is allowed in part. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.

4). Whether the complainants proved their case against the opposite party, as alleged and whether the opposite party is liable for compensation to them?

  The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party in respect of execution & registration by deed of conveyance.

ORDER

     Hence, ordered that the complaint case being No.34/2014 be and the same is allowed on contest against the opposite party, with a litigation cost of Rs.6000/- to be paid by the OP No.1.      

    The Opposite Party No. 1 to 5 are directed to execute and register the deed of conveyance in favour of the complainants after taking balance consideration money if any from the complainants by the OP No.1 in accordance with the terms of the agreement within 45 days from the date of passing this order otherwise the complainants may get the deed executed through the machinery of this Forum.

    The Opposite Party No.1 is directed to pay compensation amounting to Rs.20,000/- to these complainants for mental pain and agony within 45 days from the date of passing this order. 

    At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer legal Aid Account.

    Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.