Dt. of filing- 15/05/2018

Dt. of Judgement- 15/11/2018

Mrs. Sashi Kala Basu, President.

          This is an application filed under Section  13 of the Consumer Protection Act, 1986 by the complainant namely Shri Surajit  Sengupta against  the OPs namely (1) Smt. Aruna Mukherjee ;(2) Shri Partha Pratim  Dutta and (3)  Shri Asish Kumar  Ghosh alleging deficiency in service on their part.

The case of the complainant in short is  that  son of OP No.1 namely Pallav Mukherjee  being the developer  and OP Nos. 2 and 3 being the owner  of the property mentioned in the schedule had entered into a development agreement and a Power of Attorney was executed in favour of said Pallav Mukherjee by the OP Nos. 2 and 3.  Said  Pallav Mukherjee  thereafter  entered into an agreement for sale  with the complainant on 09.01.2015 in respect of  sale of one flat situated  in the Eastern side of the  2^nd floor of the G + 3 storied building having super  built up area of  500 sq.ft. being he Municipal Premises No. 78, Mondal Para Extension under  P. S.  Behala, Kolkata -  700 034. The total consideration amount was Rs.10,00,000/-. Complainant  paid  the entire consideration amount to the said developer  and requested  to register the deed in his favour. But the  developer  namely Pallav   Mukherjee  died  on 03.02.2017 leaving behind  the respondent No.1  as his heir. So, the complainant asked   the  respondent no.1  who is the Mother  of the said developer to execute the deed in his favour. But no heed was paid. Thereafter the complainant sent a letter to respondent no.1 in her both the address but it came back with endorsement ‘Not claimed‘. So, the  respondent no.1 and the respondent nos. 2 and 3 being the owner are liable  to execute the deed in favour  of the complainant. Instant complaint  is  thus filed for an order  directing the respondents to handover  the possession  of the flat and to execute  and register the sale  deed in favour of the complainant in respect of the scheduled property mentioned  in the complaint petition.

            On perusal of the record it appears that the notice have been served upon the OPs but as no step was taken by them,  case was fixed for ex-parte hearing  vide order dated 08.08.2018.

            During the course of the evidence,  complainant  filed Affidavit-in-Chief and thereafter  the argument has been heard. The written notes of argument  has also been filed.

            Along with the petition of complaint, the complainant  filed  copy of the agreement   for sale  entered into between the complainant and the developer namely Pallav Mukherjee, and copy of the notice  sent  by  complainant to the respondent no.1 through his Ld. Advocate.

So,  the only  point  requires determination  is  whether the complainant  is entitled to  the relief as prayed for?

Decision with reasons

          On perusal  of the agreement for sale dated 09.01.2015 it appears that the agreement  was entered into  between the present complainant and  M/s. Binayak Construction being represented by its proprietor Shri Pallav Mukherjee. It is evident  from the said agreement for sale that Pallav Mukherjee was the constituted Attorney of Partha Pratim  Dutta and Asish Kumar Ghosh the owners. The agreement was  in respect of  sale of a residential  flat in the Eastern Side  of the 2^nd floor of the G+3 storied building having super built up  area of 500 sq.ft. which has been  specified in the 2^nd scheduled  of the said agreement for sale. It also  appears  from the said agreement for sale, that the total  consideration amount  was Rs.10,00,000/- and it was paid to the said developer  by two cheques dated 17.09.2014 and 13.12.2014 respectively of Rs. 5,00,000/- each. The agreement indicates  that the consideration amount of Rs. 10,00,000/- by two cheques were  paid to the said  Pallav Mukherjee before the date of  execution of the agreement. Agreement was executed on 09.01.2015.

            It  may , however be mentioned here  that no development agreement    entered into between the  said Pallav Mukherjee and the OP Nos. 2 and 3, has been filed. Neither the copy of the Power of Attorney  executed  by OP Nos.2 and 3 in favour  of the said Pallav  Mukherjee  the developer,  has been filed. Though in the  agreement for sale entered with the present  complainant,  there is clear reflection about the  registered Power of Attorney in favour of said Pallv Mukherjee. So, even though development agreement  and the registered Power of Attorney has not been  filed but there cannot be any dispute that those documents could only be with the developer or with the owners. The complainant has also filed the extract of the Savings Bank Account showing the issuance of the cheque in favour of M/s. Binayak Construction on two occasions of Rs. 5,00,000/- each. So, as before this Forum, no contrary evidence is   forthcoming in order to rebut and counter the case of the complainant,  complainant  is entitled to possession of the  flat in question and for execution  and registration  of deed  in his favour.

Hence,

Ordered

          CC/253/2018 is allowed ex-parte. OPs are directed to handover the possession of the flat as mentioned in the schedule of the complaint petition to the complainant and to execute  and register the deed of conveyance in favour of the complainant  within  three months from the date of this order.