Date of filing :22.9.2017

Judgment : Dt.25.6.2018

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Mr. Alim Seikh alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Sri Kinkarnath Ghosh, (2) M/s Raja Construction and (3) Md. Hafizur Rahman Mallick.

            Case of the Complainant, in brief, is that the Complainant entered into an Agreement for Sale i.e. with the OPs on 23.12.2015 in respect of a flat to be constructed by OP No.2 & 3 at ground floor of a building at Premises No.266A, Nabalia Para Road, Ward No.123, Borough XIII, P.S.-Haridevpur, Kolkata-700 008, at a consideration of Rs.6,00,000/- and the Complainant paid entire consideration amount on different dates and lastly on 17.3.2016 and the OP delivered the possession letter dt.17.3.2016 in favour of the complainant receiving balance consideration amount of Rs.2,00,000/- but did not execute and register the Deed of Conveyance in favour of the Complainant and finding no other alternative the Complainant served a demand notice dt.2.12.2016 and 26.5.2017 through Ld. Advocate, which was duly replied through the Ld. Advocates of  OP’s but registration of Deed of Conveyance had not been executed. The Complainant by filing the consumer complaint prayed for direction upon OPs to execute and register the Deed of Conveyance in favour of the Complainant, to pay Rs.4,00,000/- towards compensation and other relief.

            The Complainant annexed Agreement for Sale dt.23.12.2015, possession letter dt.17.3.2016 issued by OP No.3 to the Complainant, Advocate’s letter dt.2.12.2016, 26.5.2017 to the OP s and reply dt.12.12.2016, 21.6.2017 issued by Ld. Advocate of OP No.1, OP No.3 respectively.

            OP No.2 and 3 contested the case by filing written version stated inter alia, that an Agreement for Sale was executed by and between the Complainant and OP on 23.12.2015 and the Complainant paid entire consideration amount of Rs.6,00,000/- to the OP Nos.2 & 3 and receiving entire consideration amount the OP No.3 being Developer handed over possession of the flat measuring about 722 sq.ft. to the Complainant but due to revocation of power of attorney by the land owner OP i.e. OP No.1 registration of Deed of conveyance could not be executed but the OP No.2 & 3 are ready and willing to execute the same and accordingly prayed for passing necessary order so that they can execute registration of Deed of Conveyance in favour of the Complainant.

            The Complainant and the OP Nos.2 & 3 adduced evidence followed by cross examination in the form of questionnaire and reply thereto.

            In course of argument, L. Advocate for the Complainant narrated the facts mentioned in the petition of complaint.

            Ld. Advocate for the OP Nos2 & 3 submits that they are ready and willing to execute and register the Deed of Conveyance in favour of the Complainant.

Decision with reasons

Admittedly, the Complainant entered into an Agreement for Sale on 23.12.2015 with the OP Developer in respect of a flat at the ground floor of a building lying and situated at 266A, Nabalia Para Road, Ward No.123, Borough XIII, P.S.-Haridevpur, Kolkata-700 008. It is also admitted by the OP Developers that the entire consideration amount has been paid by the Complainant to the OP Nos.2 & 3. It appears from Development Agreement dt.24.6.2010 executed by and between the OP No.1 and OP Nos.2 & 3 that by virtue of that Development Agreement OP No.2 & 3 are empowered to enter into Agreement for Sale with the intending purchaser.

On perusal of Supplementary Development Agreement dt.24.10.2010, it appears that Second Schedule i.e. Schedule B runs as – “All that piece and parcel of two flat out of which one flat measuring 725 sq.ft. super built up area on the Western side being flat No.A and another flat measuring 650 sq.ft. super built up area on the Eastern side being flat No.B both the flats will be two bed room, one dining cum living room, one kitchen, one toilet, one W.C. one balcony and the roof will be common upon the top floor flat, to be sanctioned in the sanction plan by the Kolkata Municipal Corporation along with common facilities more fully described in Schedule B”.

It further appears from the Development Agreement that the OP Developer is entitled to get remaining portion of the building save and except owner’s allocation along with other common facilities share of land attributed to the Developer’s allocated portion. That the top floor roof of the building will be Developer’s allocation except the owner.

On perusal of copy of Bengali Daily “Aajkal” dt.26.6.2016 it appears that the OP No.1 Sri Kinkarnath Ghosh land owner of the said premises revoked and cancelled two Power of Attorney dt.4.3.2010 by executing two revocation of Power of attorney dt.15.4.2016. It further appears that the Complainant entered into Agreement for Sale with OP No.2 & 3 on 23.12.2015 and at that point of time the Power of Attorney was in force. On perusal of Money receipts it also appears that the Complainant had paid entire consideration amount on different dates such as 23.12.2015, 7.01.2016, 15.02.2016 and 17.3.2016. It is therefore evident that entire consideration amount was paid by the Complainant by 17.3.2016 before power of attorney was revoked.

On scrutiny it is found that as per supplementary sanction building plan there exists provision for flat on the South Eastern side of ground floor of the said building.

It is also observed that as per power of attorney dt.4.3.2010 the OP Developer was empowered to enter into Agreement for Sale with intending purchaser, to take step for amendment of sanctioning building plan, to put his signature on any document on behalf of the Complainant. Therefore, it is evident that at the time of execution of supplementary building plan the power of attorney was in force and by virtue of which the OP entered into agreement for sale with the Complainant.

In course of argument, Ld. Advocate on behalf of OP Developer submitted that they are ready and willing to execute and register Deed of Conveyance in favour of the Complainant. Therefore, there is no reason to disallow such innocuous prayer.

The Complainant prayed for compensation of Rs.4,00,000/-.

In this regard we do not find any reason to pass such order.

The OPs compelled the Complainant to file the instant case so they are liable to pay cost of litigation. In our view Rs.10,000/- if allowed will be just and proper.

            In the result, the Consumer Complainant succeeds.

            Hence ordered

            That CC/558/2017 is allowed on contest against OP No.2 & 3 and ex-parte against OP No.1 with cost.

            The OPs are directed to execute and register the Deed of Conveyance in favour of the Complainant within two months from the date of communication of this order to the OP No.1.

            The OP Nos.2 & 3 are further directed to pay Rs.10,000/- towards cost of litigation to the Complainant within aforesaid period.