State Consumer Disputes Redressal Commission

West Bengal

BHABANI BHAVAN (GROUND FLOOR)

31, BELVEDERE ROAD, ALIPORE

KOLKATA – 700 027





S.C. CASE NO. 107/A/99

DATE OF FILING: 16.3.1999

DATE OF FINAL ORDER: 29.05.2009


APPELLANT/PROFORMA OPPOSITE PARTY


Sm. Sudha Roy

W/o Sri Sampad Roy

27/4, K.M. Naskar Road

P.S. – Regent Park

Kolkata – 700 040



RESPONDENT/COMPLAINANT



1) Sukhendu Chatterjee

S/o Late Gangadhar Chatterjee

64, Nehru Colony, Ground Floor

Kolkata – 700 040, at present residing at

1/11A, Nehru Colony, Kolkata – 700 040



RESPONDENTS/OPPOSITE PARTIES



2) M/s. Dee Bee Construction

A Partnership Firm having office at

3/12, Ajadgarh, P.S. – Jadavpore

Kolkata – 700 040

3) Debasis Bhattacharya

S/o Sri Dilip Bhattacharya

33B, Charu Avenue

Kolkata – 700 033

4) Biswajit Banik

S/o Sri Gopi Nath Banik

3/12, Azad Garh, Kolkata – 700 040



BEFORE : HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT

MEMBER : MR. A.K. RAY

MEMBER : MRS. S. MAJUMDER



FOR THE APPELLANT : Mr. K.N. Sen, Advocate

FOR THE RESPONDENT : Absent on calls.













: O R D E R :


HON’BLE JUSTICE MR. A. CHAKRABARTI, PRESIDENT





This appeal was filed against the order dated 22.2.99 passed by District Consumer Disputes Redressal Forum, South 24 Parganas in D.F. Case No.355 of 1998 whereby the complaint was allowed in part against OPs 1,2 & 3 on contest and against OP4 exparte with cost of Rs.500/- and the OPs were directed to complete all the unfinished works of the flat in terms of the agreement dated 10.3.97 and deliver its possession to the complainant within two months from the date of receipt of a copy of the order and were also directed to execute the Deed of Conveyance in favour of the complainant within one month from the date of delivery of possession of the flat and in default of compliance of the directions contained in the order the complainant was granted liberty to execute the order in accordance with law.

Facts in brief as stated in the complaint are that the OP1 is a partnership firm and is engaged in promoting and developing multi-storied building and OPs 2 & 3 are the partners of OP1. The OP4 is landlady of the land in question who engaged OPs 1,2 & 3 to promote the multi-storied building. OP4 executed a registered power of attorney in favour of OPs 1,2 & 3 endorsing the job of promoting the building. The OPs 1,2 & 3 entered into an agreement on 10.3.97 with the petitioner to sale a flat on southern portion of the first floor of the premises at a consideration of Rs.3,60,000/-. OPs 1,2 & 3 agreed to handover the flat to the petitioner latest within July, 1997 including grace period of 30 days. The petitioner paid the amount as demanded by the OPs from time to time but did not complete the sanitary, plumbing and electric works as per agreement. The liability of the OPs 1,2 & 3 under the agreement to pay Rs.1,500/- per month to the petitioner if the OPs failed to deliver possession of the flat by July, 1997 and as they failed to deliver the possession within the time the said amount became due but was not paid regularly. When the petitioner failed to get relief from the OPs inspite of communications, the present complaint was filed seeking handing over of the flat to the petitioner after completing the same as indicated, to execute the Deed of Conveyance in favour of the petitioner, compensation of Rs.50,000/-, to pay charges for rental accommodation since September, 1997 and for other reliefs.

Heard Mr. K.N. Sen, the Ld. Advocate for the Appellant and the Respondent was absent on calls.

The Ld. Advocate for the Appellant advanced three contentions. The first argument was the agreement having not been impounded, cannot be enforced against the appellant until full stamp is paid. While considering the said contentions we found that in paragraph 5 of the written objection filed by the OPs 1,2 & 3 they admitted the agreement as relied on by the appellant. As no dispute has been raised as regards the terms of the agreement and on the contrary contentions were raised by the OPs alleging violation of terms of the said agreement, we are of the opinion that in present proceeding of inquisitorial nature original agreement is not required to be taken in evidence requiring its impounding as would have been required in a case of adversarial nature. Therefore, the said contention of the appellant, which has been raised by the first time of the present appeal, cannot be entertained.

The next contention of the appellant is that the power of attorney was registered not in terms of the requirement of law and particularly requirements of Section 31(1)(a) of the Registration Act. In this respect we find that the OPs 1,2 & 3 did not raise such factual objection as regards the place of registration of the objection before the Forum below. On behalf of the present appellant no material has been shown in support of contention that the said point was urged before the Forum below and was in a position to be decided on facts. In such circumstances the complainant having not been given any opportunity to deal with such objection before the Forum below enabling him to put forward his case with supporting evidence, this point also cannot be allowed to be urged in the present appeal.

The last contention of the appellant is that the power of attorney was registered after execution of the agreement for sale and, therefore, execution of agreement for sale is not in exercise of due power and authority originating from the said power of attorney. It does not appear that this point also was at all urged before the Forum below by the OPs. Such question on facts cannot be allowed to be raised in appeal for the first time there being no reason shown for doing so. If such point is allowed to be urged in this appeal for the first time the complainant is deprived of opportunity to produce his facts in evidence. Therefore, this objection also cannot be allowed to be raised in the appeal for the first time.

The Ld. Advocate for the appellant relied on the judgment in the case of Smt. Indrawati Tiwari-Vs-Sheo alias Sew Saran Sharma reported in 2008(1) CLJ 358 and the judgment in the case of Dr. Swapnadib Lahiri-Vs-Tridib Das Roy reported in 1999(2) CLJ 259. In view of the findings recorded hereinabove on facts, the law cited on behalf of the appellant does not appear to be applicable and, therefore, does not require further consideration in detail. No other point having been argued and in view of the findings recorded hereinabove, the appeal fails and is hereby dismissed. No order as to costs. LCR be sent down forthwith to the Forum below.







(S. Majumder) (A.K. Ray) (Justice A. Chakrabarti)

MEMBER(L) MEMBER PRESIDENT