Shyamal Kumar Ghosh, Member

1. The instant appeal has been preferred by the appellants challenging the order impugned dated 07/05/2018 passed by ld DCDRF, Kolkata Unit – II in connection with the consumer case being no – CC/270/2017 wherein the ld Forum concerned has been pleased to allow the same on contest against the opposite parties 1 to 4. Being aggrieved and dissatisfied with such order impugned the instant appeal has been preferred by the appellants/opposite parties no – 1 and 2.
2. The brief fact of the case is that being an owner Sulekha Das, the opposite party no – 1 has entered into a development agreement dated 05/08/2011 with opposite parties no – 2 to 4 (partners of M/S – Baishaki Construction to construct straight III storied building on the various terms and conditions mentioned therein.
3. The said owner has also executed a power of attorney on the various terms and conditions mentioned therein and the same has been registered on 15/06/2012 at the office of ADSR, Sealdah.
4. After completion of the construction work and after allotment of shares among the  owner and developer as per development agreement, the developer has declared to transfer its’ share in the said newly straight III storied building with full knowledge and consent of the owner from the developers’ allocation.
5. Having been interest the complainant/petitioner has agreed to enter into an agreement for sale dated 5^th day March 2013 with the said owner of plot as vendor and the developers as the confirming parties to purchase the schedule property clearly mentioned in the petition of the complaint.
6. The total consideration has been fixed at Rs.15,22,500/- only. On 05/03/2013 at the time of agreement for sale the complainant/petitioner has paid Rs.10,00,000/- only and thereafter on several occasions the complainant/petitioner has further paid Rs.3,00,000/- only to the opposite party no – 2.
7. The fact remains that the opposite party no – 2 has received Rs.13,00,000/- only out of total consideration amount of Rs.15,22,500/- in respect of aforesaid flat in question from the complainant/petitioner.
8. The possession of the flat in question has already been delivered to the complainant/petitioner on 10/03/2016. The complainant has repeatedly requested the opposite parties to execute and register the deed of conveyance in favour of the complainant but they have neglected and refused to do the same.
9. Thereafter a surveyor has been appointed and the said surveyor has taken the measurement of the said flat wherefrom it was crystal clear that the actual measurement of the flat was 395.41 sft instead of 525 sft clearly mentioned in the aforesaid agreement. The rate of per sft has been fixed and settled at Rs.2,900/- and accordingly the total consideration of the said flat has been fixed at Rs.15,22,500/- and out of which 13,00,000/- has already been paid to the opposite party no – 2 herein.
10. It is stated that the opposite parties were supposed to provide less area ie 129.59 sft from the original measurement. As per calculation, the value of the said flat comes to Rs.11,46,689/- though the complainant/petitioner has already paid excess price of Rs.1,53,311/-. The complainant has, on several occasions, requested the developer/opposite party no – 2 to deliver the area of 129.59 sft to the complainant but the opposite party no -2 did not pay any heed in the aforesaid matter. Several notices have been sent to the opposite parties no – 1 and 2 but they kept mum. There is clear gross negligence and deficiency in service on the part of the opposite parties and having no other alternatives the complainant knocked at the door of the ld Forum concerned for getting proper reliefs as prayed for.
11. No written version has been filed by the opposite parties. The S/R matter in respect of opposite party-2 has been completed through newspaper publication. On 08/03/2018 all opposite parties were absent on calls and as such the case has been fixed for ex-parte hearing against all ops.
12. At first we have perused the General Power of Attorney executed on 15/06/2012 wherefrom it appears to us that in respect of schedule property mentioned therein, the opposite party no – 1 (owner) has appointed opposite parties no – 2 to 4 (developers and partners of M/S– Baishaki Construction) as the constituted attorneys and to that effect they have endorsed their respective signatures at the last page of the said power of attorney.
13. Secondly we have perused the agreement for sale executed on 05/03/2013 wherefrom it appears to us that the opposite parties no – 2 to 4 are the partners of M/S – Baisakhi Construction Company and the developers herein. This instrument also indicates that the opposite party no – 1 becomes sole and absolute owner in respect of landed property measuring area about 2 cottahs 2 sft (more or less). By execution of such agreement, the opposite party no – 1 would be entitled to grant an exclusive right to the aforesaid developers/ops 2 to 4 therein for the purpose of construction of building on the aforesaid land in accordance with the plan sanctioned by the competent authority.
14. The owner ie opposite party no – 1 herein has agreed that the developers/ops 2 to 4 would have right to enter into agreement for selling of built up the space and also to collect the money as consideration amount from the intending purchaser/purchasers but it would be done from their allocation excluding the owner’s allocation.
15. Now, we have carefully perused the agreement for sale dated 05/03/2013 wherefrom it appears to us that the complainant/purchaser has intended to purchase a self contained flat clearly mentioned in the schedule of the said agreement and to that effect all parties to the consumer complaint have endorsed their respective signatures upon the said instrument. The memo of consideration of the document also indicates that the one of the partner viz Kamru Zzaman choudhury (opposite party no–2 herein) has received Rs.10,00,000/- only as a part consideration from the complainant on 05/03/2013 and to that effect the op no– 2 has endorsed his signature on the said instrument after issuing the money receipt being no - 028 and by virtue of the said agreement and the money receipt the complainant/purchaser comes well within the purview of the definition of the ‘consumer’ as per Consumer Protection Act, 1986.
16. We have meticulously perused the Memorandum of Understanding dated 01/09/2014 executed between the opposite parties no – 2 to 4 wherefrom it appears to us that by filing of the said MOU the opposite parties 3 and 4 herein have submitted that after full and final payment, the first and second part ie opposite party no – 4 and opposite party no – 3 herein shall have no right, title and interest in respect of the property situated at      3A/1/1, Mathur Babu Lane Kolkata 700015, KMC, Ward no – 57 (which is referred to the property of the complainant herein, clearly mentioned in the schedule property in the agreement dated 05/03/2013). In pursuant to the said MOU it is clear to us that the complainant and the opposite party no – 1/owner herein are not the parties as well as there are no signatures of them upon the said instrument. Actually the said MOU has been executed between the partners of M/S – Baishaki Construction and as such this particular instrument has not been acted upon the complainant and opposite party no – 1/owner. It is the actual and settled principle of law that after execution of  aforesaid power of attorney and development agreement, the ops no – 3 and 4 cannot escape from their liabilities and on the strength of said documents/instruments, we cannot exonerate them from the said case and in this respect the ld Trial Forum has taken the right views and observations.
17. It is admitted that one surveyor has taken the measurement of the said flat in question and it has been revealed that the actual measurement of the said flat in question has been assessed at 395.41 sft including super built up area. But the ops are bound to provide the flat to the complainant measuring area 525 sft including super built up area as per agreement. The complainant has already paid Rs.13,00,000/- to the opposite party no – 2. In pursuant to the said agreement, the cost of the flat in question amounting to Rs. 2,900/- per sft has been settled. The aforesaid event clearly reveals that the complainant is supposed to get less area of 129.59 sft. As per calculation in unitary method it reveals that the complainant has paid an excess payment of Rs.1,53,311/- one lakh fifty three thousand three hundred and eleven only to the op no – 2. So it should be duty of the opposite party no – 2 to refund the amount of Rs. 1,53,311/- to the complainant with interest forthwith.     
18. It is admitted that the complainant is in the possession of the said flat in question. So, at this juncture, the execution and registration of the deed of conveyance in respect of subject flat at the behest of the complainant is highly needed in order to secure his residential support.
19. Be it mentioned here that after availing several opportunities, the opposite parties have failed to appear before the ld concerned Forum and have also failed to contest the said case by filing written version. Under such circumstances, there is no hesitation to hold that the allegations against the all ops contained in the petition of the complaint remained unchallenged. The mere silence on the part of the ops proves the fact of the complainant’s case and gross negligence and deficiency in service on the part of opposite parties are already established.
20. Upon careful perusal of the order impugned dated 07/05/2018 we come into conclusion there is no such wrong or error or any illegality in passing the order impugned but to some extent some modifications should be required in order to reach final conclusion. Accordingly, the order impugned passed by the Ld. Forum concerned is, therefore, modified   to the following extent.

Hence, the

                                            ORDERED

         That the appellant/opposite party no -2 (Kamruzzaman Choudhury) is directed to refund of Rs.1,53,311/- (one lakh   fifty three thousand three hundred and eleven) only to the complainant along with interest @ 9% pa from 10/03/2016 to   the date of filing the instant appeal ie 02/08/2018 within 60 days from the date of passing of the order.

That the opposite parties 1 to 4 are directed to pay the litigation cost of Rs.20,000/-(Rupees twenty thousand)only to the complainant within the aforesaid stipulated period of time.

No order of compensation against the ops is passed as the complainant is in the possession of the said flat.

The opposite parties 1 to 4 are directed to execute and register the deed of conveyance in favour of the complainant within 60 days from the date of passing of the said order in respect of flat measuring area 395.41 sft. If the opposite parties would fail to comply with the aforesaid order, the complainant is entitled to execute and register the deed of conveyance in his favour through the machinery of the ld Concerned Forum(now District Commission).

The cost of registration shall be borne by the complainant.

If the awarded amount would not be paid within the stipulated period of time the whole awarded amount shall carry interest @ 10% pa till full realization.

The instant appeal is allowed in part and stands disposed of.

Let a copy of this order be transmitted to the ld concerned Forum for compliance and for necessary action.

Note accordingly.