J U D G E M E N T
The door of this Forum has been knocked by the Complainant, for redressal arising out of the consumer dispute as per the Consumer Protection Act, 1986.
In laconic, the case stated in the complaint, is that, the Complainant had agreed to purchased a residential flat and a Garage, both on the Ground floor by entering into two separate Agreements for Sales with the Opposite Party No. 2 for a total consideration amount of Rs. 4,77,000/- only for the flat and Rs. 2,26,625/- only for garage, and the Complainant had paid the entire consideration amount to the Opposite Party No. 2 on good faith and on basis of the Development Agreement dated 29.03.2009 and the Power of Attorney dated 29.03.2009 executed by and between the Opposite Party No. 2 and the Opposite Party No. 1 and the Opposite Party No. 2 had handed over the actual possession of the said flat and garage to the Complainant but failed to execute and register the ‘Sale Deed’ in favour of the Complainant.
But suddenly the Complainant came to know from a publication published in a Daily Bengali newspaper named ‘Bartaman’ dated 04.02.2012 that the Opposite Party No. 1 had revoked the said Power of Attorney dated 29.03.2009 and ceased all rights of the Opposite Party No. 2. The Complainant sent a legal notice on 18.02.2012 to the both Opposite Parties requesting them to do the necessary execution and registration of the said ‘Sale Deed’ which was duly received by them and replied only by the Opposite Party No. 2 admitting the payment of consideration money but no response by Opposite Party No. 1.
The Complainant requested the Opposite Parties to execute and register the ‘Sale Deed’ in respect of the said flat and garage but the Opposite Parties never paid any heed to him, what amounts deficiency and/or negligence in rendering service towards him, for which he has to suffer harassment and mental agony and prayed for compensation. Hence, this case is filed seeking adequate redressal.
Resisting the complaint, the Opposite Party No. 1 filed the Written Version denying each and every allegation made by the Complainant in the petition of complaint contending inter alia, that the Complainant has no cause of action and is not maintainable either in fact or in law and is totally false.
The specific case of the Opposite Party no. 1, in terse, is that, in the month of 2011, the Opposite Party No. 1 came to know that the Complainant had tried to execute an Agreement for Sale with the Opposite Party No. 2 in respect of a flat and the Opposite Party No. 1 had informed the Complainant by a registered legal letter, the fact of suspension of the alleged Power of Attorney on and from 07.02.2011 and knowing about everything the Complainant had paid the consideration amount to the Opposite Party No. 2 for which the Opposite Party No. 1 ought not to be liable and for which the Complainant cannot ask for the execution and registration of the ‘Sale Deed’.
The Opposite Party No. 1 further stated that due to some reasons the Opposite Party No. 1 had revoked the said Power of Attorney dated 29.03.2009 on 20.10.2012 and the same was published in a daily newspaper named ‘Bartaman’ on 04.02.2012 mentioning that all claims and conditions must be made within 15 days from the date of such publication, but no such claim was made to that effect within the stipulated period.
Moreover, in respect of the ownership of the said property the Opposite Party No. 1 had filed a Title Suit being No. 61/2012 against the Opposite Party No. 2 which is pending before the Ld. 2nd Civil Judge, (Jr. Div.) at serampore. Thus the Opposite Parties denied to do any negligence or deficiency in rendering the service towards the Complainant and prayed for dismissal of the case.
Points for Consideration
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service on the part of the O.P ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with reasons
All the points are taken up together for consideration for convenience and brevity.
The main dispute between the Complainant and the Opposite Parties is that whether the Opposite Party No. 1 & 2 are liable to do the execution and registration of the ‘Sale Deed’ in respect of the said flat and garage in favour of the Complainant or not.
In coming into conclusion regarding the present dispute we have gone through the Complaint and Written Version and also critically appreciated the material documents on record.
On scrutinizing the case record it is revealed that the dispute arose from the fact that alleged by the Complainant against the Opposite parties that after receiving the entire consideration amount by the Opposite Party No. 2 Developer, both the Owner and the Developer negligent to execute and register the ‘Sale Deed’ in favour of the Complainant, due to some internal disputes between the Owner and the Developer.
On overall evacuation of the arguments advanced by the Ld. Advocates of the Opposite Party No. 1, as neither the Complainant nor any Ld. Advocate or any other was appear on behalf of the Complainant at the time of hearing argument, it is evident that two separate Agreements for Sales was executed by and between the Complainant and the Opposite Party No. 2 on 07.11.2010 for purchasing a residential flat and another on 29.11.2010 for purchasing a garage, wherein the Opposite Party No. 2 had signed for himself and also on behalf of the Owner Opposite Party No. 1 as his constituent Attorney by Power of Attorney dated 29.03.2009.
It is revealed from the photocopies of the documents filed by the Complainant that the consideration amount for the said flat is of Rs. 4,77,000/- only and Rs. 2,26,625/- only for garage and the Complainant had paid the entire consideration amount for both flat and garage to the Opposite Party No. 2 which was duly admitted by the Opposite Party No. 2 by sending reply to the legal notice sent by the Complainant on 29.02.2012 to the Ld. Advocate of the Complainant and also expressed his readiness and willingness for doing the execution and registration of the ‘Sale Deed’ in respect of the said flat and garage in favour of the Complainant.
Moreover, it is also admitted by the Opposite Party No. 1 by filing his Written Version that due to disputes between the Owner and the Developer, the Opposite Party No. 1 had revoked the said Power of Attorney dated 29.03.2009, on 20.10.2012 and the same was published in a Bengali Daily named ‘Bartaman’ on 04.02.2012 wherein it is specifically mentioned that all claims and conditions must be made within 15 days from the date of such publication, but no such claim was made to that effect within the stipulated period.
But it is found from the photocopies of the documents filed by the Complainant that the Complainant had sent a legal notice on 18.02.2012, i.e. just after publication of the said revocation of the Power of Attorney, to the Opposite Party No. 1 but the Opposite Party No. 1 did not response to it and the same was replied by the Opposite Party No. 2 wherein the Opposite Party No. 2 had almost admitted the entire allegations of the Complainant.
It is also revealed that the alleged revocation was actually made on 20.10.2012 which was published on a Daily named ‘Bartaman’ on 04.02.2012. But the fact remains that the Agreements for Sales took place on 07.11.2010 and 29.11.2010, i.e. two years before the alleged revocation was actually done.
And it is true that on both Agreements for Sales the Opposite Party No. 2 had signed as Developer and also as the constituent attorney of the Owner by the power of the said Power of Attorney dated 29.03.2009. So it is proved that though the said Agreements for Sales was actually executed at the time when the said Power of Attorney was in force, the Opposite Party No. 1 is fully liable for the act done by the Opposite Party No. 2 during the existence of the said Power of Attorney dated 29.03.2009.
Furthermore, it is also admitted by the Opposite Party No. 1 that in respect of the ownership of the said property the Opposite Party No. 1 had filed a Title Suit being No. 61/2012 against the Opposite Party No. 2 which is still pending before the Ld. 2nd Civil Judge, (Jr. Div.) at serampore, which exclusively proves that the dispute had been arisen between the Owner Opposite Party No. 1 and the Developer Opposite Party No. 2 due to their internal disputes and problems, wherein the Complainant being the purchaser and/or intending purchaser of the said flat and garage, is not a party to that abovementioned case and has no liability and/or there is no cogent reason for suffering of him and the subject matter of the said case is the different issue and not the matter of fact to adjudicate the instant case.
Thus the fact remains that the Complainant had actually paid the entire payment towards the consideration amount as his part of obligation to the Developer Opposite Party and the same was duly received by the Opposite Party No. 2 for which both the Opposite Parties are liable to do their part of obligation by executing and registering the ‘Sale Deed’ in respect of the said flat and Garage as described in the ‘B’ Schedule and ‘C’ Schedule in the Complaint in favour of the Complainant.
So, considering all the above mentioned fact and circumstances, the Forum inclined to hold that the Opposite Party No. 1 & 2 are still liable to execute and register the ‘Sale Deed’ in respect of the said Garage as described in the ‘B Schedule’ and ‘C Schedule’ in favour of the Complaint.
Therefore, in the light of the above discussion, we are of the opinion that the Complainant has successfully proved his case and is entitled to get the relief as prayed for and consequently the points for consideration are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Party No. 1 & 2 with cost of Rs. 5,000/- only payable by both Opposite Parties within one month from the date of this ‘Order’.
That the Opposite Party no. 1 & 2 jointly and severally are further directed to execute and register appropriate Deed of Conveyance, in favour of the Complainant in respect of the said flat and Garage, as specified in the ‘B Schedule’ and ‘C Schedule’ of the Complaint, within a period of one month from the date of this ‘Order’.
That failing to do the said registration work by the Opposite Party No. 1 & 2 the Complainant has the liberty to get the said flat and Garage executed and registered through the DCDRF, Hoogly at Chinsurah.
That the Opposite Party no. 1 is further directed to pay a sum of Rs. 5,000/- only to the Complainant as compensation for harassment and mental agony within one month from the date of this ‘Order’.
In the event of non compliance of any portion of the order by the Opposite Parties within a period of one month from the date of this order, the defaulting Opposite Party shall have to pay a sum of Rs. 200/- per day, from the date of this order till its realization, as punitive damages, which amount shall be deposited by the Opposite Party in the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
