DATE OF FILING : 09/12/2013.
DATE OF S/R : 11/12/2013.
DATE OF FINAL ORDER : 27/08/2014.
1) SRI. SIBA PRASAD PATRA
son of late Sreehari Patra,
24/2, Paran Chandra Das Road, P.S.-Bantra,
Howrah-711 101
2) SMT SIMA PATRA,
son of late Sreehari Patra,
24/2, Paran Chandra Das Road, P.S.-Bantra,
Howrah-711 101------------------------------------------------- COMPLAINANT.
- Versus -
1) SRI. SWAPAN KUMAR MUKHERJEE
son of late Sisir Mukherjee,
11, Biseswar Banerjee Lane, P.O-Bantra,
Howrah-711 101
2) Sri Bimal Pandit,
son of lt. Pannalal Pandit,
19A, Ichapur Road, P.S. Bantra
Howrah – 711 101
3) Sri Ratan Kumar Pandit,
Son of late Pannalal Pandit,
19A, Ichapur Road, P.S. Bantra
Howrah – 711 101-----------------------------------------------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. The instant case was filed by the complainants U/S 12 of the C .P. Act, 1986 ( as amended upto date ) against the o.ps. alleging deficiency in service U/S 2(1)(g), 2(1)(o) of the C.P. Act, 1986 wherein the complainant has prayed for a direction to be given upon the O.Ps. for execution of the deed of sale in favour of the complainants with respect to the schedule property together with complete of the pending work namely putty work in the ground floor and garage walls, electrical wiring, bath room door & windows and compensation of Rs. 3 lakhs together with litigation costs as the o.ps. in spite of receiving the major portion of consideration value of Rs. 17 lakhs did not take any positive step/s towards the same.
2. The o.p. nos. 2 & 3 in their written version contended interalia that the matter regarding sell of a self contained residential flat measuring about 1000 sq. ft. in the 1st floor and 300 sq. ft. of motor garage with one room in the ground floor as proposed by the o.p. no. 1 was beyond the knowledge of these answering o.ps. and further opined that the consideration money as paid by the complainant was also beyond their knowledge. These answering o.ps. flatterly denied all the allegations made by the complainant in spite of the facts that o.p. nos. 2 & 3 claimed as ownership in holding no. 24/2, Paran Chandra Das Road by virtue of development agreement dated 29-08-2010 with the o.p. no. 1 and the o.p.no. 1 subsequently violated the agreement resulted the o.ps. namely 2 & 3 compelled to cancel the said agreement as informed through letter dated 28-12-2012. Under such circumstances the instant complaint as mad by the complainants is liable to be dismissed.
3. The o.p. no. 1 jon his written version denied all the allegations of the complainants. Moreover, the o.p. no. 1 admitted the fact for execution a power of attorney on the dated 29-08-2010 with the o.ps. 2 & 3, as a developer.
4. Upon pleadings of both parties three points arose for determination :
i) Whether the suit is maintainable ?
ii) Is there any deficiency in service on the part of the O.Ps?
ii) Whether the complainants are entitled to get any relief and compensation as prayed for?
DECISION WITH REASONS :
POINTS NO. 1
5. The agreement dated 25-05-2013 was executed with the o.p. no. 1 i.e., so called developer in existence of the previous development agreement made by the o.p. no. 1 at the behest of the o.p. no. 2 & 3 on the dated 29-08-2010. The record shows that the o.p. no. 1 ( developer ) who has actually receive d the major portion of consideration money amounting to Rs. 17 lakhs on different dates from the complainants , the o.p. no. 1 cannot agitate over the question impounding. In view of Section 3 of the C.P. Act, 1986, the other provision of law cannot stand as bar in filing this particular complaint. Hence the point no. 1 is dispose of.
POINT NOS. 2 & 3 :
6. Both the points are taken up together for consideration. Admittedly there was an agreement on 25-05-2011 for sale of the schedule property as marked ‘B’ of the sale of agreement constructed over on the schedule A Property ) at 242, Paran Chandra Das Road, P.S. Bantra, Howrah, ( Ward No. 43 ) against total consideration money Rs. 20,90,000/- and or total price in measurement of the actual area of the flat and garage with room. Admittedly the complainants paid altogether Rs. 17 lakhs on different dates lastly on 23-11-2012 as per records. It is also admitted facts that the complainants in in possession of the schedule mentioned flat as per agreement. The complainants already paid Rs. 17 lakhs out of total consideration money 20,90.000/- to the o.p. no. 1 ( developer ). In spite of receiving major portion of consideration money the o.p. no. 1 has been deliberately delaying the execution of the sale deed as is reflected from the record, on the plea that the power of attorney / development agreement so vested by o.ps. 2 & 3 to o.p. no. 1 ( developer ) have been revoked by the o.p. nos. 2 & 3 against o.p. no. 1 as stated by the o.ps./ as it is implied of the letter dated 28-12-2013 of the ld. Advocate. It matters little of the power is cancel. The decision reported ( 2005 ) 5 CPJ 53 (NC) envisages that an owner cannot initiated an proceeding against the developer on the plea of breach of agreement when admittedly they entered into a collaborative joint venture agreement ( reference AIR 1979 SC 533 – Syed Abdul Kader : Ram Reddy & others. It is a pertinent point to be considered that the o.p. namely 1 having taken benefit of the joint venture agreement with the o.p. nos. 2 & 3 is duty bound to execute and register the deed of conveyance in favour of the complainant for which a major consideration money was paid. Non execution of the sale deed by the developer herein o.p. no. 1 in favour of the purchaser of flat in terms of the agreement is a clear deficiency in service reported in (1997) 1 CPR 45 (NC ) and as such U/S 2(g) of the W.B. Building Act, 1993 the o.p. no. 1 was clearly liable to come with the provision of Sectin 2(1)( r ) of the C.P. Act, 1986. We are therefore, of the view that it is a fit case where the preayer of the complainants shall be allowed and as there is gross deficiency in service.
Both the points are accordingly disposed of.
Hence,
O R D E R E D
That the C. C. Case No. 431 of 2013 ( HDF 431 of 2013 ) be allowed on contest with costs against the o.ps.
The O.P. no. 1 be directed to execute and register proper sale deed in favour of the complainant after realization of balance amount of Rs. 3,90,000/- as per development agreement dated 25-05-2011 together with completion of balance pending works of the schedule property of the complainant under possession within 30 days from the date of this order.
The O.Ps. do pay a sum of Rs.1,00,000/- as compensation to the complainants for the mental pain, agony and prolonged harassment.
The complainants are further entitled to litigation costs of Rs. 10,000/- from the O.Ps.
The o.ps. do pay the above mentined amo9unt of Rs. 1,10,000/- to the complaiants within 30 days from the date of this order i.d. kthe amount shall carry interest @ 9% p.a. till realization.
The complainants are 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.
DICTATED & CORRECTED
BY ME.
( P. K. Chatterjee )
Member, C.D.R.F.,Howrah.
