In the District Consumer Disputes Redressal Commission, Hooghly, At Chinsurah.

Case No. CC/141/2016.

Date of filing: 29/08/2016.                     Date of Final Order: 28/12/2023.

1. Meena Laxmi Narayan Karmakar,
2. Shyamlee Laxmi Narayan Karmakar,
3. Sanjeev Laxmi Narayan Karmakar

no. 1 widow, no. 2 daughter, no. 3 son of

Late Laxmi Narayan Karmakar,

All of local address- Gitanjali Apartment,

Flat no. 104, 30 G.T. road, 2^nd floor,

P.O. + P.S. Bhadreswar, Dist. Hooghly, PIN. 712124.

Another address: Sr. no. 87/2, Sasane Wasti,

Lane no. 28, A Sayyad Nagar, Hadapasar,

Pune, Maharashtra, 411028.…..complainants

1. A. Alpana Dutta

Wife of Late Shri Swapan Dutta,

B. Debasish Dutta

Son of late Shri Swapan Dutta

Both are residing at Natunpara Barasat,

P.O. and P.S. Chandernagore,

Dist. Hooghly, PIN. 712136.

2. M/S Edigicom Infrastructure Pvt. Ltd.

             Hemanta Bhawan, 2^nd floor,

              12, B.B.D. Bag (East), Kolkata, PIN. 700001.

3. Sri Koustav Ranjan Ghosh,

Son of Dilip Kumar Ghosh,

Director, (M/S Edigicom Infrastructure Pvt. Ltd.),

           Hemanta Bhawan, 2^nd floor,

           12, B.B.D. Bag (East), Kolkata, PIN. 700001.

Residential address: 100(44), N.C.M. Road,

Debanjali Apartment, 3^rd floor, flat no. P/2,

P.O. Baidyabati, under P.S. Serampore,

Dist. Hooghly, PIN. 712222.

4. The Managing Authority,

M/S Bandhan Housing Complex,

Mankundu Station Road, Sambhur Mor,

P.O. Chandernagore, Dist. Hooghly, PIN. 712136.

……..opposite parties

Before:            President, Shri Debasish Bandyopadhyay.

                          Member, Babita Chaudhuri.

FINAL ORDER/JUDGEMENT

Presented by:-

Shri Debasish Bandyopadhyay,  President.

Brief fact of this case:-  This case has been filed U/s. 11/12/13 of the Consumer Protection Act, 1986 by the complainant stating that the OP-1 executed a general power of attorney in favour of OP-3 appointing him as a lawful Attorney with some rights and privileges as revealed in the said general power of Attorney, duly registered at the office of ADSR Chandernagore dated 16.7.2012 vide Book no.4, volume no.1 pages 1904 to 1915 Being no.00150 for the year 2012.  The said general power of Attorney was presented before the ADSR, Chandernagore on 13.7.2012, duly drafted by typed a typist of Serampore Court duly signed by the Executant, attorney and two witnesses.  TheOP-1 being the owner of a piece of landed property, over which a building was proposed to be constructed, executed an agreement for sale on 4.6.2014 with theOP-2 being represented by the OP-3 in favour of the complainant, whereintheOP-1 is referred to as the owner of the 1^st part, the OP-2 being represented bytheOP-3 is referred to as developer of the 2^nd part and the instant complainant is referred to as the purchaser of the 3^rd part, duly authenticated , Notarial certificate no.86 dated 9.7.2014, by the Notary of Serampore Court Regn. No.589/95 jon 19.7.2014.  The agreement for sale was duly signed by theOP-3 as constituted Attorney of OP-1 and again by the OP-3 as the developer and director of OP-2 the complainant as the purchaser, two witnesses an advocate of Serampore Court who drafted the agreement for sale.

The OP-1 alongwith OP-2 being represented byOP-3 executed another agreement for sale in favour of the complainant on 17.10.2014 duly registered at the office of ADSR Chandernagore on 20.10.2014 vide Book-11, pages 2133 to 2150, being no.03032 for the year 2014.  This agreement for sale was duly signed by the OP-1, OP-3 as the director of OP-2 the complainant and two witnesses of Chandernagore court.  The agreement for ale made on 4.6.2014 duly authenticated before the Notary clearly reflects that the OP-1 proposedtheOP-2 to construct a multistoried building on his landed property and appointed the OP-3 as a developer for the purpose and accordingly the construction work was yet to start thereupon over scheduled mentioned property of the agreement for sale.  Whereas the complainant, in order to enjoy residential flats measuring more or less 1325 sq.ft being flat no.3&4 on the 3^rd floor of the building Bandhan Housing complex at Premises no.288/43 (New), 224 (Old),Mankundu station road, under Mouza, P.S Area and Municipal Corporation  Chandernagore  Dist-Hooghly Ward No.18 in R.S Dag No.181(P), under khatianno.117, corresponding to L.R Dag no.836, L.R Khatian no.512 underwent the agreement for sale dated 4.6.2014 authenticated on 9.7.2014 that the consideration value of the flats was settled an amount of Rs.2385000/-.  Cunningly the OP-1,2 &3 played a trick, taking the advantage of good faith and old age of the complainant, with the complainant in the agreement for sale duly made on 17.10.2014, they mentioned the total consideration value of Rs.1130400/- in lieu of the total consideration of 2385000/- and in the contents of the agreement as well as in schedule of the agreement in place of flat no.3 &4 only flat no.4 was typed and in place of 1325 sft. 628sft. was typed.

The OPs gradually collected an amount Rs.1500000/- from the complainant in the ledger account which is described in the complaint petition.

The Op-3 granted a money receipt in favour of the complainant customer on the official pad of the OP-2 against receiving an amount of Rs.600000/- as booking amount from the complainant for the flat no.3&4 vide receipt no. EIPL/BHC/2014/19 DT.4.6.2014 which reflects the cheque no. and date issued by the complainant and the said receipt also bears the signature of the complainant.  Even after  receiving the amount ofRs.1500000/- the OPs have neither entrusted khas possession of any flat in the name of the complainant, nor has taken any initiative to execute and register any deed of sale in favour of the complainant till date.  Even after repeated request the OPs paid no heed to their duties and obligation towards the complainant, moreover the complainant repeatedly requested the ops to take the balance amount ofRs.885000/- and arrange for registration of the deeds of sale in favour of the complainant at the cost of the complainant but to no good.

Complainant filed the complaint petition praying direction upon the opposite parties to  execute deed/s of sale in favour of the complainant immediately collecting the balance amount from the complainant and transfer the both flats in the Khas possession of the complainant and to refund a sum of Rs. 1500000/-  and to pay a sum of Rs. 300000/- as compensation for physical and mental harassment with miscellaneous expenses.

Defense Case:-  The opposite party No. 1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the development agreement between the OP-2 and the OP-1 was executed on 16.12.2015 to develop the property therefore there was no privity of contract of development between the OP-1 been the owner and the OP-2 been the developer before such execution of development agreement.  Any act on the part of the OP-2 &3 before 16.12.2015 purporting to be an act done in pursuant of a development agreement binding the OP-1  is therefore a falsification of fact, none-est and absolves the instant answering op from any responsibility , legal or moral, arising from such act of the op-2 &3 either with the complainant or with any other third party.  The shrewd fact remains that the power of attorney executed by the OP-1 in favour of the op-3 only empowered him to transfer the vacant land held by the instant OP. It, therefore, does not give any legal sanction to the op-3 to do any act or acts beyond the scope of the recitals contemplated in such power of Attorney.  Further the op-2 being a company within the meaning of the companies Act, 1956 is a separate legal entity and any act done by the op-3 acting as a director of theop-2 company cannot fall with the purview as a director of the OP-2 company cannot fall within the purview of the power of Attorney executed by the op-1 In favour of OP-3 and further such acts if any cannot be said to be acts done for and behalf of op-`1.  TheOP-3 is a greedy and desperate person and has aced beyond the scope of the power of attorney executed in his favour by the op-1 to cause wrongful enrichment on his part and further to cause wrongful loss to the instant op.  The original op been a patient of progressive Supra Nuclear Palsy was oblivious to the wrongful acts committed by the op-3 and when such acts came to his incapacitated perception the original op has revoked the power of Attorney executed in favour of OP-3 and the same was executed on 06.9.2016 and the same has been registered in Book no. IV Cd Volumeno.0604-2016 pages 4180 to 4190, being no.060400284 for the year 2016 at the office of the Addl. District Sub Register, Chandernagore. 

The disease which the original op was suffering from is a progressive disease without any scope of remission and day by day limited the original op-1 to his bed and also challenging the ability of the original op-1to make decisions.  The op-3 has taken advantage of such inclement medical condition of the original op-1 and thereby duped some intending purchasers and the original op-1 at large.  The original op-1 expired on 29.5.2019 leaving behind his legal heirs and they have been substituted in place of the original op-1 in the instant case.

That for the sake of repetition the opposite parties submits that Swapan Dutta the original opposite party no. 1 as landowner executed an unregistered land development agreement with the opposite party no. 2 and the opposite party no. 3 being the director of the opposite party no. 2. On 23/03/2012. Swapan Dutta, the original opposite party no. 1 as landowner executed a registered Power of Attorney and appointed the opposite party no. 2. As his attorney on13/07/2012 registered in Book No. IV, Cd Volume No. 1, pages 1904 to 1915 being no. 00150 for the year 2012 of the office of Additional District Sub Registrar Chandernagore. Thereafter the opposite party no. 2 being the developer and the opposite party no. 3 being the director of the opposite party no. 2. On 17/10/2014 executed a registered agreement for sale with the original complainant. Swapan Dutta, the original opposite party no. 1 put in his signature as landowner. Swapan Dutta, the original opposite party no. 1 sent notice to revoke the Power of Attorney dated 02/06/2015 to the opposite party nos. 2 and 3. The opposite party no. 3 pleaded with Swapan Dutta not to revoke the power of attorney. Swapan Dutta, the original opposite party no. 1 as landowner executed a registered land development agreement with the opposite party no. 2 the opposite party no. 3 being the director of the opposite party no. 2. On 17/12/2015 registered in Book No I, Volume NO. 0604-2015 at pages 45277 to 45298 being no. 060403121 for the year 2015. The opposite party no. 2 and 3 did not adhere to the terms of the development agreement dated 17/12/2015. Thus, Swapan Dutta revoked the Power of Attorney dated 13/07/2012 vide a registered deed of revocation of general power of attorney being no. 284for the year 2016. Swapan Dutta had transferred 12% of total 30% of the owners allocation vide a registered deed of sale on 24/05/2017 being no. 1746 for the year 2017 in favour of opposite party no. 3. The opposite party no. 3 in the said deed undertook to step into the shoes of the owner in respect of all  both civil and criminal including the instant case and C.C.121 of 2016 pending before this Ld. Forum.

That the opposite party no. 3 has instituted a suit in the Ld. Court of Civil Judge (Senior Division) Hooghly at Chandernagore being registered as Title Suit NO. 822of 2017 praying for a decree of declaration that the power of attorney dated 13/07/2012 is valid and Swapan Dutta had no authority to cancel or revoke the same. The instant opposite party is contesting the suit.

The opposite party Nos. 2 and 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and stated that the then complainant and  no.2&3 entered into an agreement for sale details of which is clearly given by the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3, in the para no.3&5 of the petition filed by him, which itself reflects that the then then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3 desired to purchase two flats being flat no.3&4.

Out of the said two flat, the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3 due to lack of money went for executing an agreement for sale without possession in respect of the flat no.4 having and super built up area of 628 sq.ft. on the 3rd floor for which consideration value was amicably settled between the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3 and the OPs herein settled in a tune of Rs.1130400/- only for the building namely Bandhan Housing Complex and the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3 who was an educated and literate person having sufficient knowledge in English language after reading the said document and being fully aware of the matter and contents of the same put his signature before the witnesses at the office of the ADSR at Chandannagar, Dist-Hooghly.  The then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3 himself expressed his inability to arrange for expenses of stamp duty and registration fees and other legal charges for executing the agreement for sale without possession in respect of the another flat being no.3 and told the OPs here in that he will somehow arrange the require cost and will go for execute final deed of sale with possession at the time of completion of the building and the OPs here in entrusted upon the version of the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3.  The OPs here inner played any trick cunningly, taking the advantage of good faith and old age of the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3.

The then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3 paid Rs.150000/- towards the consideration value of the said two flat being no.3&4 as per the schedule mentioned in the paragraphno.7 of the petition filed by the then complainant i.e. the husband of the complainant no.1 and the father of the complainant no.2&3.  The OPs here in issued money receipt vide Receipt no. EIPL/BHC/2014/19 Dated.04.06.2014.

The OPs here in have several times requested the then complainant i.e. the husband of the complainant no.1 and the father of the complainant-2&3 to pay the balance consideration amount of Rs.885000/- and arrange for registration and execution of the proper deed of indenture in respect of the said two flat being no.3&4 and receive the khass possession of the same but the then complainant i.e. the husband of the complainant no.1 and the father of the complainant -2&3 himself on every time told the OPs here in that he failed to accommodate the balance consideration price of Rs.885000/- and also the amount of registration fees and other legal charges for the flat no.4 and the amount of stamp duty and registration fees and other legal charges for the flat no.3.  The OPs herein are ready to execute the final deed of sale with possession in respect of the flat no.4 and the deed of sale with possession in respect of the flat no.3 in favour of the complainant subject to the receiving of the balance consideration price amounting Rs.885000/- alongwith the damage charges for the loss bared by the OPs herein for the period of delay of payment.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite parties filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the op no. 1 is a resident of Chandannagore, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 11 of the Consumer Protection Act, 1986 this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 24A of the Consumer Protection Act, 1986 is very important and according to the provision of Section 24A complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (d) of the Consumer Protection Act, 1986 it appears that this case is maintainable and according to the provision of Section 2 (1) (d) of the Consumer Protection Act, 1986. Complainant is a consumer in the eye of law.        All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that  the complainant intended to purchase a flat from the OPs.
2. It is also admitted fact that the OP-1 who is the land owner of the property executed a general power of attorney in favour of OP-3.
3. There is no dispute over the issue that the said general power of attorney was duly registered before the office of ADSR, Chandannagar on 16.7.2012.    
4. There is no controversy over the issue that one agreement for sale was executed on 4.6.2014.            
5. It is admitted fact that one agreement for sale was executed in between complainant and op-3.
6. It is also admitted fact that as per existing papers and documents lying in the case record the OP-2&3 has taken all the liability of OP-1 in the matter of handling the legal disputes.
7. There is no dispute over the issue that one complaint case being no.121/2016 was filed almost on the self-same cause of action and in that case final order has already been passed.                               
8. There is no controversy over the issue that in the said final order of CC-121/2016 no order was passed against OP-1.           
9. It is admitted fact that the complainant has paid Rs.1500000/- to the OP-2&3 in the matter of purchasing the flat as part of the consideration money.
10. It is also admitted fact that OP-3 on behalf of OP-2 received the said amount of Rs.1500000/- from the complainant.
11. There is no dispute over the issue that the OP-2&3 have not yet handed over possession of the said flat to the complainant.           
12.  It is also admitted fact that OP-2&3 also have not taken any steps for execution and registration of the sale deed by taking balance amount of consideration money from the complainant.  

              Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

               On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant adopted the plea that he has paid Rs.15,00000/- to the OP-2&3 but the OP-2&3 have neither executed and registered the sale deed nor delivered possession which are clearly indicating that there is deficiency of service and unfair trade practice on the part of the OP-2&3 but on the other hand the OP-2&3 pointed out that the complainant has not paid the balance consideration money and not ready and willing to execute the deed of conveyance and one civil suit is pending before the Ld. Civil Judge (Sr. Division) Hooghly at Chandannagore and for that reason the OPs have no fault on their part.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that there is no controversy over the issue that the complainant has paid Rs.1500000/- to the OP-2&3 and OP-2&3 had received the said amount but the OP-2&3 have neither executed the deed of conveyance nor delivered possession of the said flat.  In this regard it is the delivered principle of law that failure to deliver possession of the apartment within the time specified as per agreement is a clear instance of deficiency of service and unfair trade practice.  This legal principle has been adopted by Hon’ble Apex Court in the case of Experion Developers Pvt. Ltd. Vs. Sushma Ashok Shiroor.  This legal principle of Hon’ble Apex Court has been reported in the AIR2022SC1824.

            A cumulative consideration of the above noted discussion goes to show that the complainant has proved her case in respect of all the points of consideration adopted in this case and for that reason the complainant is entitled to get relief in this case in respect of all the points of consideration.

In the result it is accordingly

ordered

that the complaint case being no. 141 of 2016 be and the same is allowed on contest but in part against OP-2&3 but it is dismissed against OP-1.

It is held that the complainant is entitled to get back the amount of Rs.1500000/- from the OP-2&3 alongwith interest @9% per annum.

OP-2&3 are directed to repay the said amount of Rs.1500000/- to the complainant alongwith interest @9% per annum from the date of filing of this case.

In the event of non-payment/non-compliance of the above noted direction OP-2&3 shall deposit Rs.10000/- in the Consumer Legal Aid account DCDRC, Hooghly as penalty which is to be utilized for the cause of poor litigant public. 

Let a plain copy of this order be supplied at free of cost to the parties.

            The Final Order will be available in the following website of DCDRC, Hooghly.