For the Complainant                       -   Mr. S. Sarkar, Advocate

For the OP-3                                     -   Miss. Noorun Nessa Rehaman, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

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

Brief facts of the case are that complainant was a tenant under OPs 1 to 5 in respect of a room situated at Premises No. 22C/1, Broad Street, Kolkata-700019. The OPs 1 to 5 being the owners of the said Premises had entered into a Development Agreement with OP-6 M/S R.B. Construction, a Partnership Firm represented by its partners i.e. OPs 7 to 9 for construction of a G+4 storied building. Premises No. 22C, 22D and 22E, Broad Street were amalgamated into Premises No. 22C/1, Broad Street, Kolkata upon which a building plan was sanctioned by the KMC. By virtue of an agreement dated 31.12.2004, the OPs agreed to deliver/sell an area of 497 sq. ft. Covered area (288 sq. ft. from the owners share and 209 sq. ft. from developers share) consisting of two rooms, one kitchen cum dinning, one bath with privy and one balcony on the second floor of said premises at a total consideration of Rs. 4,80,000/-. In course of construction work, the OPs executed and registered an Agreement for Sale dated 03.08.2009 with the complainant in respect of the subject flat. The complainant paid Rs. 3,00,000/- to the OP-6 which reflected in the memo of consideration. In terms of the registered Agreement for Sale, the OPs were liable to deliver possession of the subject flat within 18 months from the date of commencement of construction work on payment of balance consideration amount. Complainant paid the balance consideration amount of Rs. 1,80,000/- to the OPs 7 to 9 being the partners of the OP-6 and they also put in possession of the subject flat to the complainant on 20.08.2013. In spite of repeated request and reminder, the partners of OP-6 did not issue any money receipt against payment of balance consideration amount of Rs. 1,80,000/- . Neither the OPs execute and register Deed of Conveyance of the subject flat in favour of the complainant nor give any completion certificate. Finding no other alternative, complainant issued legal notice dated 20.11.2017 to the OPs directing them to issue money receipt  of balance consideration amount, completion certificate and to execute and register Deed of Conveyance  of the subject flat within 15 days from the date of service of notice but such notice was unattended. Thus, the OPs deliberately adopted unfair trade practice and trying to deprive the complainant from his legal right and claim. Hence, the complainant has filed the instant consumer case praying for direction upon the OPs to execute and register Deed of Conveyance and to issue completion certificate of the subject flat including compensation of Rs. 5,00,000/-, punitive damage of Rs. 1,00,000/- and litigation cost of Rs. 20,000/-.

The complaint has been resisted by the OP-3 by filing WV contending inter alia that the case is bad for mis-joinder and non-joinder of necessary parties and Consumer Forum have no jurisdiction to decide the dispute alleged by the complainant. The Civil Court is the proper authority to decide the dispute. The specific case of the answering OP is that the alleged Sale Agreement dated 03.08.2019 is frivolous and not binding upon him. The relation between answering OP and the complainant is landlord and tenant and the answering OP issued notice of eviction against the complainant from the subject flat. Thus, there was no deficiency in service and/or unfair trade practice on his part. Accordingly, the answering OP has prayed for dismissal of the complaint.

Despite service of notices upon remaining OPs, they have failed to file WV within the limitation provided U/s 13 (2) of the CP Act, 1986. No request for condonation of delay or extension of time for filing WV was made. Therefore, the right of the OPs 1, 2 and 4 to 9 to file WV closed vide order dated 06.06.2018 and 18.06.2018.

Decision with Reasons

Complainant Sri Asim Kumar Das has filed evidence by way of affidavit supporting the allegations made in the complaint. On the contrary, the contesting the OP-3 Nikunja Bihari Paul has also filed evidence by way of affidavit in support of his case. They have also given reply against questionnaire by the adversaries.

Fact remains that OPs 1 to 5 are the owners of Premises No. 22C/1, Broad Street, P.S.-Karaya, Kolkata-700019 and OPs 7 to 9 are the partners of OP-6 M/S R.B. Construction. The case of the complainant is that by virtue of an agreement dated 31.12.2004 the OPs agreed to sell 497 sq. ft. covered area (288 sq. ft. from the owners’ allocation and 209 sq. ft. from the developer’s allocation) consisting  of two rooms, one kitchen-cum-dinning, one bath and privy with one balcony on the 2^nd floor of the proposed G+4 storied building at Premises No. 22C/1, Broad Street, Kolkata-700019 at a total consideration of Rs. 4,80,000/-. We have scrutinized the registered Agreement for Sale dated 03.08.2009 and find that OP-3 Sri Nikunja Bihari Paul, constituted attorney of OPs 1, 2, 4 & 5 executed an Agreement for Sale dated 03.08.2009. No General Power of attorney registered on 12.06.2016 before the Additional District Sub-Registrar Alipore, South 24 Pgs is forthcoming before us to establish that the remaining owners’ of Premises No. 22C/1, Broad Street, Kolkata-700019 executed any General Power of Attorney in favour of OP-3. On perusal of the photocopy of Agreement for Sale dated 03.01.2009, it appears that the OPs 1 to 5 being the owners of 22C/1 Broad Street, Kolkata-700019 authorized and empowered the OP-6, a Partnership Firm to construct a G+4 storied building on the said premises and the OPs 1 to 5 by virtue of an agreement dated 31.12.2004 agreed to deliver and accommodation measuring about 250 sq. ft. carpet area and 280 sq. ft. covered area in the proposed G+4 storied building in favour of the complainant. Complainant failed to produce copies of Development Agreement dated 21.06.2004 and agreement dated 31.12.2004 to establish his case that the OP-6 was entrusted to construct a G+4 storied building at premises No.  22C/1 Broad Street, Kolkata-700019 and the owners of said premises agreed to deliver and accommodation measuring about 250 sq. ft. and or 282 sq. ft. covered area to the complainant in the proposed building. The registered Agreement for Sale itself proved that the OP-3 being the Constituted Attorney of OPs 1, 2, 4, & 5 executed the impugned agreement with the developer/OP-6 and its partners and the complainant regarding sale of the subject flat fully described in the schedule of the agreement dated 03.08.2009. The remaining OPs being the owners, developer and its partners did not turn up to deny the allegations of the complainant that no such Development Agreement was executed between the OPs 1 to 5 in one part and OPs 6 to 9 in other part regarding construction of G+4 storied building in KMC premises No. 22C/1, Broad Street, Kolkata-700019.

The specific defence of the contesting OP-3 is that alleged Sale Agreement dated 03.08.2009 is frivolous and not binding upon him. The OP-3 being the constituted Attorney of his co-sharers executed Sale Agreement with the complainant. The Sale Agreement is not manufactured document as it is registered one. It is settled law that when owners entrusted one of their co-sharers by a registered Power of Attorney then question of signing all the co-sharers in the Development Agreement and/or Agreement for Sale is implied. In our opinion, Sale Agreement is not manufactured for the purpose of unlawful gain of the complainant. Moreover, facts which can be proved through documentary evidence cannot be accepted on basis of oral evidence. 

Complainant claims that he has paid the total consideration amount to the OPs 7 to 9 being the partners of OP-6. On perusal of the Memo of Consideration attached with registered Agreement for Sale, it appears that a sum of Rs. 3,00,000/- was given to OPs 7 to 9 on 03.08.2009 out of total consideration of Rs. 4,80,000/-. Complainant further claims that he has paid the balance consideration of Rs. 1,80,000/- to the OPs 7 to 9 but the above OPs did not issue any money receipt though possession of the subject flat was given to him and possession has not been provided. Complainant failed to prove that he had paid balance consideration amount of Rs. 1,80,000/- to the OPs 7 to 9 being the partners of OP-6. Thus, we find there is no deficiency in service on the part of the OPs. However, the OPs 7 to 9 have already received Rs. 3,00,000/- as booking money from the complainant and put in possession of the subject flat.

In view of the above discussion, the complaint is allowed on contest against the OP-3 in part and also ex parte against the OPs 1, 2, and 4 to 9 with the following directions:-

1. The OPs are directed to execute and register Deed of Conveyance in respect of the subject flat in favour of the complainant within 60 days from date subject to payment of balance consideration amount of Rs. 1,80,000/- to the OPs 7 to 9.
2. The complainant should bear the stamp duty and cost of registration etc.
3. The OP-3 is directed to pay Rs. 10,000/- to the complainant as cost of litigation within 60 days from date.
4. If the OPs fail to comply the order in that event the complainant may put the order in execution according to law.