Date of filing : 13.07.2018

Judgment : Dt.20.1.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Smt. Kanika Sarkar alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Uday Bhanu Dasgupta and (2) Smt. Gouri Routh.

            Case of the Complainant, in short, is that OP No.2 being the owner of the scheduled property desirous of constructing a residential building entered into a development agreement with the OP No.1 on 22.4.2014 and also executed a General Power of Attorney in favour of OP No.1 on the same date i.e. on 22.4.2014. Subsequently, Complainant entered into an agreement for sale dt.1.4.2016 with the OP No.1 being constituted attorney of OP No.2 who agreed to sale a flat o n the 1^st floor of the said building described in the Schedule B of the complaint, at a consideration of Rs.15,00,000/-. Complainant has paid a sum of Rs.10,00,000/- on different dates to the OP No.1 out of the total consideration of Rs.15,00,000/-. Complainant requested the OP to complete the construction and to handover the vacant possession of the flat and also to get the deed of conveyance executed. But the OPs have been avoiding to comply the said request. Ultimately, a notice has also been sent dt.28.6.2018 by the Complainant to the OP No.1 through her Ld. Advocate, but all in vain. So, the present complaint has been filed for directing the OP to execute and register the deed of conveyance in favour of the Complainant, to pay a sum of Rs.2,50,000/- as compensation for harassment and mental agony, to pay litigation cost of Rs.50,000/-, to pay Rs.1,50,000/- as compensation for delay in delivery of possession of the flat and for directing the OP to handover peaceful and vacant possession of the flat.

Complainant has filed with the complaint, copy of the development agreement dt.22.4.2014 entered into between the opposite parties, copy of General Power of Attorney dt.22.4.2014, copy of the agreement for sale dt.1.4.2016 entered into by and between the parties, Copy of the notice dt.28.6.2018 sent by the Complainant to the OP No.1 through her Ld. Advocate.

OP No.1 has contested the case by filing the written version denying and disputing the allegations made in the complaint contending inter alia specifically that he has constructed three storied building as per building plan but while the construction work was going on, suddenly he fell ill, so the construction work was hampered and he could not finish the work within stipulated time. It is further contended that he cannot execute and register deed of conveyance in favour of the Complainant as the power of attorney has been revoked by the owner. Due to cancellation of power of attorney, OP lost his right to make further construction towards completion of remaining parts of the work in the building. Complainant is aware about the cancellation of the said power of attorney but has filed the case only to squeeze the money. Thus, the OP No.1 has prayed for dismissal of the case.

OP No.2 has also contested the case by filing separate written version contending inter alia that the power of attorney was cancelled by the OP No.2 as the OP No.1, the developer, did not perform the work and almost left the project in incomplete condition and also did not handover the owner’s allocation. It is further contended by the OP No.2 that to settle the matter, if the balance consideration price of Rs.5,00,000/-is paid to the OP No.2, she is ready to complete the undone work and handover physical possession of the same to the Complainant.

During the course of trial both the parties filed respective affidavit-in-chief followed by filing of questionnaire and reply thereto. Ultimately, argument has been advanced by Complainant and OP No.2. But OP No.1 did not take any step on the date fixed for argument. He neither filed any brief notes of argument.

            So the following points require determination

1. Whether there is any deficiency in service on the part of the OPs?
2. Whether the Complainant is entitled to the relief as prayed for?

Decision with reasons

Complainant has claimed that she purchased a flat at a consideration of Rs.15,00,000/- out of which she has paid Rs.10,00,000/-. The payment of Rs.10,00,000/- has not been disputed by the OP No.1 the developer. Neither there is any dispute about the execution of the development agreement by and between the opposite parties and the execution of general power of attorney in favour of OP No.1, the developer on 22.4.2014. It is also an admitted fact that during the existence of the said development agreement and the power of attorney, the OP No.1, the developer being the constituted attorney of the OP No.2 agreed to sale a flat to the Complainant by an agreement for sale dt.1.4.2016. However, it is stated by OP No.1 and also by OP No.2 that subsequently the development agreement and the power of attorney executed in favour of the OP No.1 has been cancelled by OP No.2. So, consequent to the said cancellation of development agreement or revocation of power of attorney by OP No.2, it is evident that presently OP No.1 has no power to raise the further construction and to complete the building. However, OP No.2 has categorically stated that she is ready and willing to complete the construction of the building and to deliver the possession of the flat as per agreement if the balance consideration price of Rs.5,00,000/- is paid to the OP No.2. On consideration of the said fact as the OP No.1 cannot carry out the construction work any more due to the cancellation of the development agreement and power of attorney and OP No.2 the owner is ready and willing to complete the unfinished work,  it will be appropriate to direct the OP No.2, the owner to complete the construction work on payment of the balance consideration amount of Rs.5,00,000/- by the Complainant to the OP No.2. Complainant will pay the said balance amount in two equal installments to the OP No.2. OP No.2 shall be liable to complete the unfinished work and to handover the possession of the flat in question in habitable condition to the Complainant. Complainant has also prayed for compensation. Since the Complainant has not been delivered the possession of flat within stipulated time, by the OP No.1 who was the constituted attorney of OP No.2, Complainant is entitled to the compensation as she will have to bear the cost towards registration of the deed of conveyance as per the present market value. So, compensation of Rs.70,000/- will be justified.

            Hence

                              ordered

            CC/425/2018 is allowed on contest. OP No.2 is directed to complete the unfinished construction work and to handover the possession of the flat to the Complainant as per agreement dt.1.4.2016 on receipt of balance of Rs.5,00,000/- from the Complainant and to execute the deed of conveyance in favour of the Complainant within 4 months from the date of this order. OPs are further directed to pay compensation of Rs.70,000/- and litigation cost of Rs.10,000/- to the Complainant within the aforesaid period of 4 months.