Shri Sujit Kumar Roy,

son of Sri Monilal Roy,

residing at 76/1, Abinash Banerjee, P.S. Shibpur,

District – Howrah, and also at

374, G.T. Road ( South ), P.S. Shibpur,  

District –Howrah,--------------------------------------------------------------  COMPLAINANT.

-          Versus   -

1.         Sri Abhijit Sarkar, 

son of late Gouri Sarkar,

residing at 208, Sankaritola Street,

P.S. Muchipara, Kolkata – 700014.

2.         M/s. Sristi  Construction,  

            a proprietorship concern,

represented by its proprietor

Sri Pinaki Ranjan Jana

of 10/3, Shibtola Lane, P.S. Shibpur,

District – Howrah,

PIN  – 711102.--------------------------------------------------OPPOSITE PARTIES.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.                  Complainant Shri Sujit Kumar Roy  by filing a petition U/S 12 of the C .P.

Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to execute the Deed of Conveyance in respect of a flat in question, to pay an amount of  Rs. 1,00,000/- as compensation together with a litigation costs which the Forum may deem fit and proper. 

2.                  Brief facts of the case is that complainant on payment of Rs. 6,00,000/- in

cash, vide annexures money receipts, entered into an agreement for sale with the O.Ps.  on 12-08-2008 in respect of a flat measuring 800 sq. ft. along with other specifications as laid down under Schedule ‘B’.  The total consideration value of the said flat is Rs. 7,20,000/-. But even after expiry of the stipulated period as per the agreement for sale dated 12-08-2008, the complainant was neither given physical possession of the said flat nor any deed

of conveyance was executed in his favour. Complainant requested verbally to both O.Ps. to do the needful but they did not care to do so. Ultimately, he sent lawyer’s notice to both O.Ps. on 10-10-2012 requesting them to receive the balance amount and execute the deed

of conveyance. On receipt of the said letter, O.P. no. 1 sent a lawyer’s notice dated 18-10-2012 stating therein that no agreement for sale was entered into by him with the complainant in respect of purchase of the flat in question and O.P. no. 1 also revoked the general power of attorney which was executed in favour of Sri Pinaki Ranjan Jana, the proprietor of O.P. no. 2, by way of publishing the same in a newspaper. And accordingly, O.P no. 1 has got no liability to execute the same even he has not taken any amount of that  Rs. 6,00,000/- paid by the complainant to O.P. no. 2. Being frustrated and finding no other alternative, complainant filed this case praying for the aforesaid reliefs.

3.                  Notices were served upon the O.Ps. And both O.Ps. appeared and contested the

case by filing separate written versions.   

4.                  Upon pleadings of both parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.Ps.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.                  Both the points are  taken up together for consideration.            We have carefully

gone through the written versions filed by both O.Ps. and noted their contents. O.P. no. 2 has stated that he has no problem to execute the deed of conveyance in favour of the complainant and also admitted the receipt of Rs. 6,00,000/-. But O.P. no. 1 in his written version vide paras 8 & 9 has denied the receipt of any amount from the complainant along with the fact that he has never entered into any agreement for sale with the complainant. Moreover, it is also his case that developer, i.e., O.P. no. 2, did not hand over his part of allocation which is 45% of the total constructed area. Even he has denied that there is any flat or portion lying saleable to the complainant. And both O.P. nos. 1 & 2 filed separate suits before the 2^nd Court of Civil Judge ( Jr. Division ) at Howrah being T .S. No. 249 of 2008 and T.S. No. 252 of 2008. From the order dated 29-09-2012 passed by the 2^nd Civil Judge, we find that O.P. no. 1 entered into an development agreement on 15-04-2004 with O.P. no. 2 with respect to the construction of a new buildings on the premises no. 374,  G.T. Road ( South ), P.S. Sibpur, Howrah – 711103. And also O.P. no. 1 executed a general power of attorney in favour of O.P. no. 2 on 30-04-2004. And O.P. no. 2 entered into an agreement for sale with the present complainant on 12-08-2008. Subsequently, when O.P. no. 2 did not hand over the 45% of the owner’s allocation to O.P no. 1, O.P. no. 1 revoked that general power of attorney on 25-11-2008 which was published on 01-12-2008 but this matter came into the knowledge of the complainant only on 18-10-2012 when O.P. no. 1 sent a lawyer’s notice. And complainant before that date of revocation of general power of attorney i.e., 25-11-2008, entered into an agreement for sale with the O.Ps. which was on 12-08-2008. Accordingly, here complainant with all positive motives entered into the agreement for sale. And he intended to purchase a flat from developer’s allocation by way of paying Rs. 6,00,000/- out of total consideration money being  Rs. 7,20,000/-. Complainant saw that there was a valid development agreement dated 15-04-2004 between O.P. nos. 1 & 2 regarding the construction of a building on the premises

owned by O.P., no. 1, he paid such a big amount to O.P. no. 2. Complainant is not at all at fault. Now  for their i.e. O.P. nos. 1 & 2 internal problem, complainant cannot suffer. We

all know ‘shelter’ is one of the three basis needs of the human being. O.Ps. should not be allowed to play with the emotion of the complainant. ‘Shelter’ is not only an emotional need, it is a prime need. Here, O.P. no. 2 acted as the agent of O.P. no. 1. During the validity period of the general power of attorney, O.P. no. 2 took all the amount of Rs. 6,00,000/-. So, O.P. no. 1 is, too duty bound to handover the physical possession of the said flat to the complainant along with the execution of deed of conveyance in favour of the complainant. And both of them should facilitate the entire procedure in this regard. And due to non compliance of the terms of the development agreement dated 15-04-2004, by O.P. no. 2, complainant has been put to all these problem, and harassment for which , complainant is also entitled to a compensation. Accordingly, we are of the candid opinion that it is a fit case where the prayers of the complainant should be allowed.

            Points under consideration are accordingly decided.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  159 of 2012 ( HDF 159 of 2012 )  be  allowed on contest with  costs  against  the O.Ps. 

      That the  O.P. nos. 1 & 2 are jointly and severally directed to execute the deed of conveyance in favour of the complainant  within 30 days from the date of this order i.e., Rs. 50/- per day shall be charged against them till actual registration.

      That the Complainant is also hereby directed to bear the cost of registration and to pay Rs. 1,20,000/- to O.P. no. 2 at the time of registration.

      That the complainant do get an award of Rs. 50,000/- as compensation and Rs. 10,000/- as litigation cost which is to be paid by the O.P. no. 2 within one month from this order, i.d., the entire amount of Rs. 60,000/- shall carry an interest @ 10% p.a. till actual payment.

            The complainant is at liberty to put the decree into execution after expiry of the appeal period.

            Supply the copies of the order to the parties, as per rule.