FINAL ORDER/JUDGEMENT

SHRI ASHOKE KUMAR GANGULY, MEMBER

This is an application u/s.12 of the C.P. Act, 1986.

The complainant  was one of the tenants of the premises No.4,Gouri Shankar Ghosal Lane,  P.S. Narkeldanga, Kolkata -700011. The OP Nos. 1 to 3 are the present owners of the of the said premises  The OP No.5 is the Development Firm and OP Nos. 6 & 7 are the partners of the said Firm. The OP 4 is  engaged in the construction work. On 24.06.2011 one Development Agreement was executed in between the erstwhile land owner Rabindra Nath Sikdar now deceased and the Developer Firm being the OP No.. 5 represented by the OP No. 6 & 7 to construct a multistoried building after demolishing the existing structure. Subsequently by a memorandum of understanding dated 05.02.2019 OP No. 4 has been authorized to act as a Developer in the said property. There were many tenants in the said premises. It was decided not to evict any tenant for which a declaration to that effect was executed in between the land owners and  the developers and the said declaration was registered in the Sub Registrar Office at Sealdah in the year 2013. The complainant being interested to purchase a flat entered into a Tripartite Agreement for sale on 09.04.2014 measuring carpet area of 225 sq.ft. at third floor at a cost of Rs.5,13,400/-  out of which he has paid Rs.4,00,000/- to the Developer. The Developer failed and neglected to issue receipt of Rs.50,000/- only. As per the agreement the Developer shall hand over the said flat within 24 months from the date of the said agreement and will execute Sale Deed with undivided share of land subject to payment of the balance consideration money. The complainant requested the Developer to hand the flat several times but the Developer has failed to hand over the same. Subsequently, one Bibhas Sarkar, being one of the tenants filed one Title Suit being No.24/2017 before the Ld. Civil Judge (Jr. Divn.),Sealdah Court praying for permanent injunction  not to create third party interest over the suit property where the complainant was a party to it. But afterwards, the complainant  withdrawn himself from the case. Thereafter the complainant tried to initiate the mediation proceedings where the OP developer did not participate.  Subsequently,  a memorandum of understanding dated 05.02.2019 was executed between the concerned parties to complete the construction work within 6 months from the date of sanction plan by Kamruzzaman Choudhury under the name and style of his proprietorship concern M/S Plan Swift Architecture  having its office at 14C, Radhanath Choudhury Road, Kolkata – 700015. Accordingly the tenants withdrew the title suit no. 24/2017 dated 20.02.2019 in terms of the said MOU dated 05.02.2019. The Developer filed one titled suit being No.165/2016 against the land lord before the Sealdah Court  where the tenants are not the parties. The stipulated period of handing over the flat is already expired and the flat is not handed over to the complainant. The cause of action arose from the date of the agreement for sale dated 09.04.2014 which is still continuing and for justice the complainant has approached the Commission for relief as detailed in the consumer complaint.

The OP Nos. 1,2 & 3 have contested the case by filing their W/V contending inter alia that the case is not maintainable either in facts or in law. They have denied the allegation that the OP 4 has not been authorized to undergo construction work by the erstwhile land lord Rabindra Nath Sikdar and the legal heirs of R.N.Sikdar and some tenants are illegally occupying the entire developer’s allocation. The developers filed one title suit bearing no. 165/2016 in the 1^st Court Jr. Divn., Sealdah Court. The building is not complete. The erstwhile landlord cancelled the development agreement as well as the power of attorney given to the developer vide letter of termination dated 06.09.2016. The landlord died on 22.05.2019 and accordingly the said power of attorney seized to be operative and accordingly the developer lost the right to execute the deed of sale to the tenants. Moreover, the legal heirs of the deceased land lord did not execute fresh power of Attorney in favour of  OP Developer. The OP Nos. 1,2 & 3 are not responsible for not handing over the flat to the complainant. The title suit No. 165/2016 is still pending in the Sealdah Court till date. Since the power of attorney is not in force the developers cannot execute Sale Deed in favour of the Tenants.

The OP Nos. 4,5 & 6 have also filed their W/V stating the case is also not maintainable either in facts or in law. They have stated that OP4 was not allowed  to proceed with the construction work by the erstwhile landlord and his legal heirs and some of the tenants who are illegally occupying the developer’s allocation and not  paid their  consideration money and not complied the terms and conditions of the agreement dated 05.02.2019. Besides owner’s allocation the erstwhile land lord occupied the major portion of developer’s allocation and transferred possession to his legal heirs by way of gift deed and in contravention of the terms of the development agreement and also in utter violation of injunction order passed by the 1st Civil Judge (Jr. Divn.),  Sealdah Court in Title Suit No. 165/2016 filed by the OP Nos. 5,6 & 7. The developers were debarred to hand over the developer’s allocation to the intending buyers save and except 5 tenants out of 10. Developers were not paid full consideration money and they are not allowed to enter the suit premises and not allowed to complete the finishing work. The erstwhile landlord cancelled the development agreement as well as the power of attorney vide letter dated 06.9.2016 and finally the landlord expired on 22.05.2019. No fresh power of attorney has been given by the legal heirs of the deceased landlord and the developers are in a helpless situation having no right to execute the Sale Deed in favour of the buyers. The developer could not hand over the flat to the complainant since the erstwhile landlord forcefully took possession of the said flat and transferred the flat in favour of his legal heirs by way of gift deed. The OP Nos. 4,5 & 6 are absolutely in a helpless situation due to supervening circumstances beyond their control. The OPs could complete their part of finishing work including conveyance on accepting the balance consideration money if they are allowed to do so by the legal heirs of the landlord. The fact as per their submission  is that the erstwhile landlord as well as his legal heirs are the root cause of all disputes as they have forcefully and illegally occupied the lion’s share  of the multistoried building including the developer’s allocation for which these OPs could not hand over the respective portions of all the tenants including the complainant.

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 Points for Determination

In the light of the above pleadings, the following points necessarily have come up for determination.

1)  Whether the OPs are deficient in rendering proper service to the Complainant?
            2)  Whether the OPs have indulged in unfair trade practice?

           3)  Whether the complainant is entitled to get relief or reliefs as prayed for?

Decision with Reasons

Point Nos. 1 to 3 :-

The above mentioned points are taken up together for the sake of convenience and brevity in discussion.

            We have travelled over the documents placed on record. The complainant has filed his Evidence supported by affidavit. Only W/Vs have been filed by the OP Nos.1 to 3 and OP Nos.4 to 6. The case has been proceeded ex parte against OP No. 7. No questionnaire has been filed by any of the parties. The OPs have not filed their  E- Chief and  have not submitted their BNAs also. The complainant has filed his BNA.

 The fact of the case in brief is that  the complainant entered into a Sale Agreement dated 09.04.2014 with the erstwhile owner Mr. Rabindra Nath Sikdar now deceased and M/s Dynasty Engineers Pvt. Ltd. represented by the OP Nos 5,6 &.7 for purchasing a flat of 200 sq. ft. at a consideration price of Rs.5,13,400/- at third floor of the premises at 4, Gouri Shankar Ghosal Lane, Kolkata – 700011.  Accordingly the complainant paid Rs. 3,50,000/- to the Developer Company on different dates as part consideration price of the said flat. The complainant was residing over the said premises  as tenant along with other Tenants in the old building and it was decided through declaration registered dated 17.4.2013 in the Court of Addl. District Sub Registrar, Sealdah that no tenant will be evicted and in case it happens, then the owner will provide alternative identical area in and around the said premises by mutual arrangement.  The Declaration was executed by the OP No.6 & 7 being the constituted attorney of the landlord on 17.04.2013.The impugned flat of the complainant is to be purchased from the Developer’s Allocation. The Developer M/S Dynasty Engineers Pvt. Ltd. was empowered to construct the new building as per sanctioned plan by virtue of Development Agreement dated 24.06.2011 executed by the landlord and the Developer.

 But we find one Memorandum of Understanding dated 05.02.2019 executed by and between the land owner Rabindra Nath Sikdar and Kamruzzaman Chowdhury of Plan Swift Architecture being the Developer and the OP No.4  and 11(eleven) Tenants including the complainant and Sri Surajit Sikdar and Sri Arijit Sikdar being the confirming Parties and sons of the landlord. On going the said memorandum of understanding it is understood that the partner of the earlier Developer M/S Dynasty Engineers Pvt. Ltd. Sri Subrata Roy exited from the company and the remaining partner Kamruzzuaman Chowdhury successfully handed over the owners allocation along with some tenants allocation. But some of the tenants and some prospective buyers could not be accommodated till that time. The owner cancelled the Development Agreement as well as existing power of attorney given to the erstwhile Developer vide his letter of termination dated 06.09.2016 and refused to grant permission to the Developer to complete the allocation to the flat buyers and the Tenants. Finding no alternative the Dynasty Engineers Pvt. Ltd. represented by Kamruzzuman Choudhury filed a title suit no. 165/2016 before the Ld. 1st Civil Judge (Jr. Divn) at Sealdah Court against the landlord Rabindra Nath Sikdar and obtained an Injunction on transferring or selling any part of the Developer’s allocation. Tenant also filed titled suit no. 24/2017 against the landlord and the developer  which however stands withdrawn vide order dated 20.02.2019 of the Hon’ble Civil Judge,Jr. Divn.1^st Court Sealdah. The landlord by virtue of this MOU dated 05.02.2019 agreed to execute fresh power of attorney in favour of the Developer to execute /transfer the Developer’s allocation after the Tenants and the Developer withdraw the titled suit filed before  the Hon’ble Court at Sealdah. The Developer will complete the construction within 6 months from the date signing the MOU. This instant MOU will be produced before the Hon’ble Court for taking suitable order of compromise as decreed, on execution of a fresh Regd. Power of attorney in favour of Kamruzzuman Choudhury to complete the building and to execute the deed of conveyance to the buyers and tenants. The Developer will obtain revised building plan and complete the construction at his own costs. But as per record the land owner died on 22.05.2019 From the available records we do not find any further document of fresh power of attorney in favour of the present Developer M/s Plan Swift Architecture  represented by Mr. Kamruzzamam and also do not know the fate of the present construction. It is also evident from the MOU dated  05.02.2019 that  the then landowner Rabindranath Sikdar and his sons Sri Surajit Sikdar and Sri Arijit Sikdar  had admitted that the Developer Mr Kamruzzaman has handed over the owner’s allocation as well as the allocation of some tenants also. So the left out portion belongs to the Developer. In the said MOU it is also mentioned that the owner occupied an extra flat on the ground floor from the Developer’s allocation and refused to vacate the extra space. The present Developer represented by OP No.4,5 & 6 confessed in their WV that in view of the fact that the ops were debarred from carrying out their responsibility by the landowners and the tenants themselves who are refusing access to the said project site to the OPs in as much as the erstwhile owner himself has cancelled the development agreement as well as the power of attorney granted to these OPs whereby they were entitled to transfer the allocated portions to the respective tenants, therefore there is no intentional latches on the part of these OPs who are themselves victims and are suffering immense financial loss on account the acts of omissions and commissions on the part of the land owners as well as the tenants themselves.

Under the given circumstances the established fact is that, the complainant paid a sum of Rs.3,50,000/ out of the total consideration of Rs.5,13,400/- to the Developer Firm M/S Dynasty Engineers Pvt. Ltd. being the OP Nos.5,6 & 7 for purchasing the flat at third floor of 200 sq.ft.  in the impugned premises and promised to pay the balance consideration money at the time of registration and handing over of the said flat.  But the said flat has not yet been handed over to the complainant because of disputes in between the land lord and the Developer. From the MOU dated 05.02.2019 executed by the erstwhile landlord , the present Developer being the OP4 and 11(eleven) Tenants and Sri Surajit Sikdar and Sri Arijit Sikdar being the sons of the erstwhile landlord  being the confirming parties it is  admitted that the land owner’s allocation has already been occupied by the erstwhile landlord. Even it is also admitted that the Owner has occupied an extra frat on the ground floor from the developer’s allocation and refused to vacate the extra space on the ground floor.The Owner also cancelled the existing  Power of Attorney of the Developer company and also refused to grant permission to the Developer to complete the allocation to the flat buyers and the Tenants.

Moreover the Sale Agreement in between the complainant and the Developer and the land lord was executed on 09.04.2014 with the provision to hand over possession by 24 months from the date of the Agreement but the Development Agreement with the Developer and Power of Attorney in favour of the Developer were cancelled by the land owner vide termination letter dated 06.09.2016 and from the above mentioned MOU dated 02.05.2019 no fresh power was given to the New Developer being the OP No.4. The OP Nos.4,5,& 6 in their W/V submitted that the OPs/Developer could not hand over possession of the said flat to the complainant as the erstwhile landlord namely Rabindra Nath Sikdar has illegally and forcefully occupied the said flat and have subsequently transferred the same in favour of his legal heirs and successors being the OP No. 1,2 &3.We also do not find any denial on the part of the OP Nos.1 2 & 3 being the legal heirs of the deceased landlord in this regard also.

In view of the above circumstances the legal heirs of the deceased landlord cannot evade their responsibilities in a situation where the OP Nos.4,5 & 6 have nothing to do in the matter of handing over the impugned flat to the complainant and its registration in favour of him rather the OP Nos. 1,2 & 3 are absolutely liable to hand over the flat to the complainant subject to payment of balance consideration money to the Developer No.4 and also arrange for registration of the said flat to the complainant.

  The Hon’ble Supreme Court of India in Fortune Infrastructure Vs Trevor D’Limba I (2018)SLT 556-II (2018)CPJ1(SC)= (2018) 5 SCC 442 and similar other cases has clearly held that the buyer cannot be made to wait for unlimited period for possession.

In view of the above facts and circumstances we are of the view that the complainant has established his case against the OPs.

All the points under determination are answered accordingly.

In the result, the Consumer Complaint  is allowed .

Hence,

   Ordered

That the complaint case be and the same is allowed  on contest against the OP Nos.1 to 4 and ex parte against OP No.7  with the following directions.

1.  The  OP Nos. 1 to 4 are directed jointly and severally to hand over possession of the impugned flat to the complainant. The complainant is directed to pay the balance consideration money to the OP No 4 at the time of possession and registration of the impugned flat.
2. The OP NO.4  is directed to hand over completion certificate to the complainant.
3. The OP Nos. 1 to 4 are directed to pay jointly and severally  a sum of Rs.30,000/- to the complainant as  compensation for causing harassment  and mental agony to the complainant & also a sum of  Rs.20,000/- to the complainant as litigation costs.
4. The OP Nos. 1 to 4 are also directed to arrange for registration of the impugned flat in favour of the complainant.

The above mentioned orders are to be complied by the OPs within a period of 02 months in default the complainant will be at liberty to put the order into execution as per rules.

Copy of the judgment be delivered to the parties free of cost as per the C.P. Act and

Judgment be uploaded in the website of the Commission for perusal of the parties