JUDGEMENT

         In this complaint complainant Somnath Ghosh by filing this complaint has alleged that the four opposite parties namely Subhasish Ghosh, Sri Tapan Kr. Paul, Sri Ajoy Kr. Srivastava, Sri Sitaram Maurya became the absolute owners of the 14 cottahs 11 chhttacks land but actually the measurement is 15 cottahs more or less together with R.T. Shed and structure thereon and lying and situated at 33/1, B.T. Road, P.S. Cossipore, Kolkata-700002withing the jurisdiction of Kolkata Municipal Corporation and they as owners/vendors exercised their rights of joint ownership by mutating their names in the Assessment Register of C.M.C. and they used to pay usual taxes of C.M.C. as absolute joint owner with every right to transfer the said property by any means.

          The said four owners/vendors executed development agreement with one M/s Basak Builders a partnership firm being represented by its partners Sri Sandip Dey on 02.05.1995 for developing the said property at said premises for erecting buildings thereon after demolition of the old structures.

          That other 3 owners/vendors out of 4 executed a power of attorney on 02.05.1995 in favour of another owner-cum-vendor Sri Subhasish Ghosh to manage, control and supervise such construction activities along with the developer as per memorandum of agreement dated 02.05.1995.

          The said developer erected and constructed a multi storied building (G+5) in the year 2001 on the said land as per plan sanctioned by the Kolkata Municipal Corporation and it now stands being premises No.33/1B, B.T. Road, Kolkata – 700002 and said developer handed over the owner’s allocation as per Memorandum dated 02.05.1995 to the aforesaid 4 vendors-cum-owners.

          That after getting allocation by the said 4 owners/vendors in lieu of the land, the owners/vendors became the absolute owners of the said owners allocation consisting of the entire 2^nd floor and 4^th floor of the said building together with undivided impartible proportionate ownership interest in the land of premises No.33/1B, B.T. Road, Kolkata – 700002.

          That as per verbal contract the op no.1 Sri Subhasish Ghosh took the full value of the flat No. D on the North side of the building in the 4^th floor and handed over the possession to the complainant and asked the complainant to proceed with the execution of the Deed of Conveyance and said op no.1 issued a possession letter dated 09.11.2005 of the flat though actually complainant has been possessing the flat on and from 05.09.2003.

          The said vendor op no.1 issued a letter dated 09.11.2005 acknowledging full payment of consideration and handed over full vacant possession of flat No. D.  On the 4^th floor of No.33/1B, B.T. Road, (Shradhanjali Apartments),Kolkata – 700002 and also directed to produce stamped final conveyance deed for his approval, fixing the date of registration and no objection certificate on 28.11.2005.

          Present complainant responded the letter of op no.1 affirmed the proposed registration on 28.11.2005 and required stamp papers were purchased in January-2004 as per his earlier approval but unfortunately op no.1 did not appear.

          Thereafter op no.1 issued another letter dated 05.12.2005 asking to send him earlier stamped final conveyance for his approval execution and registration at the earliest and against that complainant responded to the letter of the op no.2 with a request without any further delay.

          But thereafter again complainant was issued with another letter of the op no.1 dated 10.01.2006 confirming and fixing the date of registration on 20.01.2006 in favour of the complainant at Cossipore sub-Registrar Office at Dum Dum and against that complainant responded to that letter and in due course confirming the proposal of registration on 20.01.2006 and requested the op to arrange the registration on the fixed date.

          But unfortunately on 20.01.2006 op no.1 remained absent though complainant was present there along with all required documents and papers and subsequent to that complainant issued a letter dated 02.02.2006 to op no.1 regarding his callous attitude on the part of the op no.1.  But unfortunately the op no.1 refused to execute the final deed of registration and so complainant finally sent a letter on 04.08.2010 to op no.1 and same was duly received by S. Ghosh under his signature and in the above circumstances, complainant was harassed for long period and practically op has not executed the deed for which the present complaint is filed for redressal.

          Against the above contention of the complainant, op no.1 by filing written statement submitted that there is or was no legally enforceable contract between the complainant and the op and op no.1 cannot be held guilty for non-compliance for any non-existent contract.

          It is further submitted that practically complainant did not take any action against the op no.1 for more than 4 years and until issuance of a letter dated 04.08.2010 for the purpose of this complaint and moreover he has submitted that present complaint is barred by limitation for effect of times and further submitted that complainant has his possession in respect of flat cannot be equated with the title.  Regarding other allegation, op no.1 has denied the same and prayed for dismissal of the case.

          Whereas op no.3 Ajay Kumar Srivastava by filing his written statement submitted that he is not aware of the contract made by the complainant and op no.1 or about any such contract and practically the receipt as filed by the complainant is fabricated by the complainant and op no.1in collusion with each other for the purpose of this case and for making a wrongful gain to the complainant and op no.1 and further it is submitted that alleged payment receipt as filed by the complainant shows the payment of money allegedly made by the complainant to op no.1 on 05.09.2003 when op no.1 had no authority to act for and on behalf of op no.3 and it is specifically mentioned that complainant and op no.3 in collusion with each other for the purpose of the case and to cheat the op no.3 and other owners created alleged papers but no such paper was executed by other co-owner.

          But it is claimed by the op no.3 that op no.3 had no interest in the said premises at present and it is further submitted by the op no.3 that the present flat is not possessed by the complainant, but it is possessed by op no.1 and his men.  It is further submitted by the op, and op no.3 filed Title Suit 17/2008 against op no.1 and other owners in the Court of Ld. Civil Judge, Junior Division 2^nd Court at Sealdah for cheating op no.3 by the op no.1.  Moreover it is further submitted that op no.1 sold away his share and transferred the entire share of the premises No.33/1B, B.T. Road, Kolkata – 700002 to op no.1 and so he has no concern with any suit or dispute relating to premises No.33/1B, B.T. Road, Kolkata – 700002 and for which op no.3 has stated that this case against op no.3 is not maintainable.

          Whereas op no.4 Sitaram Maurya by filing this written statement has stated that he has no knowledge about any contract between the op no.1 and complainant and or about payment of consideration of money by the complainant to op no.1 and there was no agreement in between op no.4 and the complainant and further it was submitted that 3 of 4 owners of the premises are admittedly and there op nos. 1, 2, 3 & 4 having equal shares.  But subsequently by a registered deed dated 18.06.2007 op no.3 Ajay Kumar Srivastava transferred his 1/4^th share in favour of op no.1 and thus op no.1 has acquired 50% share out of the total construction and op no.2 has his 1/4^th share and op no.4 1/4^th share in the said flat in respect of which dispute has been raised by the complainant.  Op no.4 has also claimed that the receipt filed by the complainant is fabricated and op no.1 in collusion with each other for the purpose of the case and for making a wrongful gain to the complainant and op no.1.

          It is further alleged by the op no.4 that he executed the power of attorney on 19.03.1996 in favour of Subhasish Ghosh, the op no.1 authorising him to function for and on behalf of them but the said power of attorney was revoked and cancelled by him on 06.09.2002 and for which op no.1 has no right to execute any sale deed.

          Further op no.4 has stated that the conduct of the op no.1 is completely dishonest mala fide in nature and in collusion they have prepared all these matters and procuring some fabricated documents and in fact there is no question of contract in between the complainant and op no.1 and present dispute does not fall within the deficiency and there is no consumer relationship in between the complainant and op no.1 or the other ops.  In the circumstances, op no.4 has prayed for dismissal of this case.

                                         Decision with reasons

          On in depth study of the entire complaint and written version and also document as filed by the complainant further the argument as advanced by the Ld Lawyers of both the parties it is found that on 05.09.2003 S. Ghosh paid Rs. 1,53,000/- to S. Bose (Exhibit-1A) and in the said receipt there is whisper only of the booking of one flat No.D on 4^th Floor or the approximately 58.051 sq. mt. equivalent to 625 sq. ft. and complainant has executed one document as Exhibit-1B dated 05.09.2003 wherefrom it is found that in the said order it is proved that vacant possession of the flat No.D on 4^th floor of premises No.33/1B, B.T. Road, Kolkata – 700002 was delivered to the complainant what complainant accepted it.  Whereas Exhibit-1 dated 09.11.2005 reveals that S. Bose informed the present complainant that the deed in respect of the flat No.D of the 4^th floor of the case premises (Shradhanjali Apartment) shall be executed and registered for registration.  Further Exhibit-2A dated 05.12.2005 reveals that S.Bose again informed S. Ghosh to send him Final Deed for his approval for exchange deed of conveyance and registration.  Whereas Exhibit-3  dated 10.08.2006 speaks that S. Ghosh fixed 20.01.2006 for registration of the conveyance of deed and informed the complainant for preparation of the same.

          So considering all the above fact it is found that complainant has prima facie  proved that he paid S. Ghosh op no.1 a sum of Rs.1,53,000/- as booking amount against flat No.D at 4^th floor of the case premises.

           But in fact the complainant has failed to produce any agreement to sale in between the complainant and op no.1 and at the same time no registered power of attorney executed by other owners in favour of the complainant is produced.  Then question is how S. Ghosh was empowered to accept such money from third party and delivered owners allocation.  Another factor is that op no.1 has alleged that he has no power to transfer the said property and fact remains he never entered into an agreement with the complainant for any purpose for sale of the same.  But for some reason whatsoever possession was delivered in favour of the complainant.  But mere booking of flats does not give any right to the complainant for implementation of agreement.  But even then some documents which are submitted by the complainant that Exhibit-1B, 1, 2A & 3 support the fact of the allegation of the complainant that S. Bose again and again reported it and he is willing to execute the sale deed and to register the same and ultimately he did not execute it for which he complainant appeared before this Forum for relief.

          Further at the same time it is found that Title Suit No.17/2000 is filed by op no.4 against the present op no.1 including other owners before the Ld. Civil Judge, Junior Division, Sealdah where op no.4 is complainant owner who filed same against along with other co-owners and also for declaration that op no.4 is entitled to 1/4^th share of the consideration received by the op no.1 against sold portion of case premises and some other relief and so apparently this case is pending since 2008 whereas this complaint was filed in the year 2011 and after considering that fact it is found due to pendency of the said case and the power of attorney for executing and registering sale deed on behalf of the other ops by the op no.1 is not in existence and for which under any circumstances op no.1 even being admittedly co-sharer of the case premises having 50% share of the owners allocation has no right to transfer any flat from other allocation to any third party.  Further fact is that there is no agreement to sale in between the complainant and all the ops.  At the same time there is no such agreement in between the complainant and op no.1 to sell as constituted power of attorney of the other owners and for which under any circumstances this complainant cannot claim any right for implementation of the alleged agreement to sale (when no agreement to sale was prepared at all) against other ops but at best complainant can claim his relief against only op no.1 and admittedly complainant has failed to produce any copy of registered power of attorney executed by other owners in favour of the op no.1 and also no agreement to sale is also produced by the complainant.  But it is settled principle of law that if there is no agreement to sale in between the complainant and the other ops in that case complainant is not a consumer of other ops except op no.1.  So, the present complaint is tenable against op no.1 only because as per complaint it is admitted by the complainant that developer already completed construction within the said premises as per development agreement in between the developer and the ops and owners allocation were handed over to the owners op no.1 to 4 already and fact remains that op no.3 already sold his allocated portion or share to the op no.1 and for which op no.1 has become joint owner in respect of the property with other ops (op nos. 2 and 4) at present having op no.1’s 50% share of the owners allocation.  In the above situation we find that complainant cannot claim any relief against other ops except op no.1.  When admittedly op no.1 has his right title interest in respect of 50% share of the owners allocation and invariably out of his owners allocation he took consideration money as booking amount from the complainant and he delivered possession in fvour of the complainant and no doubt from the said Exhibit-1, 1A, 1B it is proved that op no.1 entered into an agreement by taking entire amount of the flat No.D at 4^th floor of the case premises of Shradhanjali Apartment from the complainant and complainant got possession and he has been possessing and from those documents it is also clear that op again and again reported to op no.1 to prepare the deed of registration of the same but ultimately op no.1 did not execute and considering all those documents Exhibit-1, 1B, 2A & 3 we are convinced to hold that op no.1 did not execute final sale deed and registered deed in respect of the case flat.  But relying upon this document it is found that op no.1 entered into an agreement through those documents for sale of the case flat in favour of the complainant.  But complainant was always ready, but op no.1 did not execute it and for which invariably op no.1 S. Bose is liable to execute and register the final deed of sale in favour of the complainant and for his negligent and deficient manner of service it was not possible and in the circumstances complainant is entitled to get relief in this complaint against op no.1 only but not against other ops. 

Accordingly, complaint succeeds.

          Hence, it is

                                          ORDERED

          That the complaint be and the same is allowed in part on contest with cost of Rs.5,000/- against op no.1 but same is dismissed against other ops.

          Op no.1 is hereby directed to execute and register the sale deed in favour of the complainant within one month from the date of this order positively failing which complainant shall have his liability to pray for execution of sale deed in favour of him on behalf of op no.1 S. Bose by this Forum and if it is executed by the Forum for disobeyance Forum’s order by op no.1, op no.1 shall have to pay a service charge of Rs.10,000/- to this Forum.

          For adopting such unfair trade practice by op no.1, op no.1 is directed to pay a sum of Rs.10,000/- as punitive damages to the State Consumer Welfare Fund.

          For further op no.1 is directed to pay a sum of Rs.20,000/- as compensation for harassing and causing mental pain, agony to the complainant.

          Op no.1 Subhasish Ghosh is hereby directed to comply the order very strictly within one month from the date of this order failing which for each month’s default he shall have to pay a penal interest @ Rs.5,000/- per month till final execution and registration of the deed and till full satisfaction of the decree and even if it is found that op no.1 is reluctant to comply the order of this Forum in that case penal proceeding shall be started against him for which he shall be responsible and even he may be sent to jail for implementation of the Forum’s order.