Date of filing : 15.03.2018

Date of Judgment : Dt.5.9.2019

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Md. Sarfaraj Adil and (2) Md. Saquib alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Swapan Karmakar, (2) Sk. Jahir and (3) Md. Sahid.

            Complainants’ case, in short, is that OP No.1 agreed to sell a flat measuring 550 sq.ft. covered area on the 4^th floor for a consideration of Rs.6,00,000/-. It was agreed by the OP No.2 & 3 that the construction of the building would be completed within 12 months from the date of agreement and the possession will be handed over to the purchaser/Complainant within one year on payment of full consideration money to the OP No.1/ owner. Accordingly an agreement dt.1.12.2009 was executed and the Complainants paid full consideration money by January, 2010 by way of cash and by cheque. Complainants requested the OP No.1 to hand over the possession and register the deed of conveyance and have also requested OP No.2 & 3 to handover the possession. But no heed was paid. Ultimately, Complainants sent a notice dt.25.1.2018 through their Ld. Advocate. But all in vain. So, the present complaint has been filed directing the OPs to handover possession of the flat, to execute and register the deed of conveyance, to pay compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.

            Complainants have annexed with the complaint, copy of agreement for sale dt.1.12.2009, copy of letter dt.10.11.2014 sent by the Complainant to the OP No.2 & 3, Copy of letter dt.28.6.2016 sent to OP No.1, copy of notice dt.25.1.2018 sent to all the OPs by the Complainants through their Ld. Advocate.

            OP No.1 has contested the  case by filing written version denying and disputing the allegations contending specifically that OP No.2 & 3 are related to the Complainants and are very close friends. Complainant No.2 and OP No.3 are brothers and Complainant No.1 and OP No.2 are residing in the same premises. They had executed a deed of partnership dt.14.9.2011, wherein the Complainants and the OP No.2 & 3 are the partners and are carrying their construction work under the name and style M/S Unique Construction. The relationship between the Complainants and the OP No.1 are not of a consumer and a service provider. The development agreement dt.14.1.2010 and the registered power of attorney dt.2.1.2010 were revoked by the OP No.1 and he has filed two title suits being No.90 of 2016 and TS 173 of 2017 arising out of all the property, before the Court of Ld. 7th Civil Judge (Senior Division) Alipore, who has passed an order of injunction. This complaint is filed by the Complainants in collusion with the OP No.2 & 3 and thus it is liable to be dismissed.

            OP No.1 has also annexed with the written version, copy of the deed of partnership dt.14.9.2011, copy of the plaint in title suit No.90 of 2016, copy of the plaint filed in TS 173 of 2017, copy of order dt.2.8.2017 passed by the Court of Ld. 7th Civil Judge (Senior Division) Alipore, in TS 173 of 2017, copy of revocation of General Power of Attorney and copy of memorandum of agreement dt.14.1.2010 entered between OP No.1 and OP No.2 & 3.

            OP No.2 has also contested the case by filing separate written version contending inter alia that the OP No.2 & 3 were developer of the property in question, but did not receive any money from the Complainants. So, the Complainants cannot claim any relief from the OP No.2 as the entire money was received by the OP No.1. Complainants have also filed a petition before the Court of Ld. 7th Civil Judge (Senior Division) Alipore, for adding them as a party in TS 90 of 2016 and the same is pending for disposal. So, the present case is liable to be dismissed against OP No.2.

            No written version has been filed by OP No.3.

            During the course of evidence, Complainants, OP No.1 and OP No.2 have adduced their respective evidences followed by questionnaire and reply thereto and ultimately argument has been advanced by both the parties.

            Ld. Advocate appearing for OP No.1 has argued by drawing the attention of this Forum to the agreement dt.1.12.2009 that on the date of execution of the said agreement there was no such development agreement between the OP No.1 and OP No.2 & 3. It is urged that the recital in the said agreement itself specifies about the owner entered into an agreement on 14.1.2010. So, it has been argued that the said agreement suffers from uncertainty and thus is void under section 29 of the Contract Act. Ld. Advocate appearing for OP No.1 has further agitated that it is apparent from the partnership deed that the Complainants and the OP No.2 & 3 were partners of a construction company namely M/s Unique Construction  and thus the present case is nothing but a collusive complaint. By drawing the attention of this Forum to the order passed by the Court of Ld. 7th Civil Judge (Senior Division) Alipore, that there is a clear observation that the deed executed by the said Unique Construction represented by its partners (OP No.2 & 3  in this case) was void ab initio and consequently the parties therein have been directed to maintain status quo with regard to the nature and character and of the alienation of the suit property.

            In the back drop of the argument advanced and the documents relied upon by both the parties, following points require to be determined –

1. Whether there has been any deficiency in service on the part of the OPs?
2. Whether the Complainants are entitled to the relief as prayed for?

Decision with reasons

Both the points are taken up together for a comprehensive discussions. At the very outset, it may be pertinent to point out that even though OP No.1 has alleged that the agreement in question is void and that this case has been filed in collusion with OP No.2 & 3. But on a careful scrutiny of the written version filed by the OP No.1, it appears that execution of the agreement in question by the OPs has not been disputed and denied. OP No.2 also in the written version has not denied and disputed the execution of the agreement. Furthermore, payment of consideration of Rs.6,00,000/- by the Complainants has also not been specifically denied. It appears that a notice was sent by the Complainants through their Ld. Advocate, whereby it is specifically stated that they have paid consideration price as agreed but in spite of the same, possession has not been handed over to them, neither OP No.1 nor the OP No.2 & 3 replied to the said notice denying any such payment.

Coming to the question agitated by OP No.1 that the agreement suffers from uncertainty as on the date of the execution of the said agreement, agreement to develop the property between the OP No.1 and OP No.2 & 3 did not exist and the recital therein itself reveals about agreement to develop the property is stated as on 14.1.2010. It may be mentioned that Section 29 of the Contract Act provides that agreements, the meaning of which is not certain or capable of being made certain are void.

In this case it is true that on the date of execution of the agreement in question, development agreement was not entered into between OPs. It was executed on 14.1.2010 i.e. after about one month of the execution of the agreement in question in this case. But while considering whether the terms mentioned therein suffers from uncertainty, it has to be considered whether the agreement could be enforced or acted upon in future. The agreement dt.1.12.2009 reveals that the owner agreed to the proposal of the Complainants to sell a residential flat measuring about 550 sq.ft. covered area more or less on the 4^th floor from the owner’s allocation in the proposed building at premises No.123 Mahatma Gandhi Road, Thakurpukur and it was agreed that the purchaser would make payment of the full consideration amount of Rs.6,00,000/- to the owner. The terms of the said agreement further reveals that the confirming parties (OP No.2 & 3 herein) and the owner (OP No.1) would complete the construction of the 4^th floor of the proposed building within one year and put the purchasers into possession.

On perusal of the development agreement entered into between OP No.1 and OP No.2 & 3 on 14.1.2010 it reveals that owner’s allocation includes a flat/area of 650 sq.ft. in the 4^th floor in the newly constructed building.

It is also agreed in the said development agreement that the developers will complete the building together with common areas within 24 months from the date of approval of the plan by KMC or by renewal of the plan. So, if the said terms in the development agreement is taken into consideration, then agreement in question entered into with the Complainants to sell a flat in the 4^th floor cannot be termed that it suffers from vagueness or uncertainty. Since an area of 650 sq.ft. has been allocated in favour of the owner in the 4^th floor and the OP No.1 agreed to sell the flat in the 4^th floor in favour of the Complainants, the agreement could well be given effect. So, if the agreement is capable of being enforced by the subsequent agreement entered between OPs, then Section 29 of Contract Act cannot be attracted and thus the argument that the agreement suffers from uncertainty and is void, cannot be accepted..

Argument of Ld. Advocate appearing for OP No.1 about this complaint being collusive, it appears from the deed of partnership, filed by OP No.1 that it was executed on 4.9.2011 nearly one and half years after the execution of the agreement in question. Apart from this, the copy of the order passed in the Civil Suit and the copy of plaints therein reveal that a flat was sold by the firm namely Unique construction Company being represented by OP No.2 & 3 as partners, in favour of one Apurba Saha and Subrata Saha the purchasers therein. No document has been filed that the present  Complainants were also the parties in selling of the said flat to those purchasers namely Apurba Saha and Subrata Saha. Moreover the development agreement dt.14.1.2010 is very specific that OP No1 entered into agreement for the development of the property with OP No.2 & 3 in their individual capacity and not with the firm namely M/S Unique Construction Company. So, even if accepting the contention of OP No.1 that the present Complainants are the partners of said firm and related to OP No.2 & 3, that by itself cannot be a ground to reject their claim specially when the development agreement was only with the OP No.2 & 3. The order passed by the Ld. Civil Judge, 7^th Court, Senior Division, observing that the sale of flat in favour of Apurba Saha and Subrata Saha by the firm M/S Unique Construction was void ab initio, also appears to be on the same reason that the development, was with the OP No.2 & 3 and not with the said firm namely M/s Unique Construction company.

 However, the order passed by the Ld. 7^th Civil Judge, (Senior Division) directing the parties to maintain status quo, it appears that the same is an ad interim order. Apparently, said order was passed at the initial stage of filing of the suit and was ex-parte. An ad interim order is always subject to the order passed in final form. So, the said ad interim order has not reached its finality. So, considering the same, the present claim of the Complainants cannot be defeated due to the pendency of the said civil suit. Admittedly, neither the flat has been handed over to the Complainants nor the deed has been executed in their favour and thus Complainants are entitled to the possession of the flat as agreed and for execution of the deed of conveyance in their favour. However, on consideration of the facts and situation of this case, we do not find any justification to allow the compensation as prayed.

            Hence

                                   ordered

            CC/131/2018 is allowed on contest against OP No.1 and OP No.2 and ex-parte against OP No.3. Opposite parties are hereby directed to handover the possession of the flat and to execute the deed of conveyance in respect of the flat as agreed in the agreement, in favour of the Complainants within three months from the date of this order. Opposite parties are further directed to pay litigation cost of Rs.10,000/- to the Complainants within the aforesaid period of three months.