Dt. of filing-   03/11/2017

Dt. of Judgement- 31/10/2018

Mrs. Sashi Kala Basu, President

          This  is an application u/s.13 of the Consumer Protection Act, 1986 by the complainant viz.  Abdul Halem Mollah against  Opposite Parties viz.  (1) Sib Charan Nath (2)  Md. Azizul Ali alleging deficiency in service on their part. The case of  the complainant in brief is that OP No.1 being the Owner of the land measuring about 5 cottah 7 chittaks and 0 sq.ft. together with  structure thereon pertaining  to Khatian No. 1089 comprised in Dag No.  1944 within  the Mouza – Kumrakhali within the  limits  of Rajpur and Sonarpur Municipality, Ward No. 25 presently he Ward No. 27, Holding No. 738 under Sonarpur Police Station  with a view to  constructing the  multi-storied building upon the said property entered into  a Development Agreement dated 25.07.2015 with the OP No.2. Pursuant  to the said development agreement  dated 25.07.2005 OP No.1 also executed a General Power of Attorney dated 25^th July, 2005 empowering OP No.2 as his Constituted  Attorney. OP No.2  entered into an agreement thereafter for sale  with the complainant and agreed to sale  flat No.1B on the 1^st floor and open car parking space on the ground floor for a total consideration amount of Rs. 13,20,000/- i.e.  Rs. 11, 17,000/-  for the flat  and the remaining  amount of Rs.1,50,000/- for the  open car parking space. The applicant has already   paid an amount of Rs. 10,20,000/- to the OP No.2 for which   OP No.2 has also issued the receipts. The rest amount  as agreed to be paid  at the time of registration of the said flat in the name of the complainant. The possession  of the flat has already been handed over to the complainant  by the OP No.2 and he is in possession   of the flat since 2013. After getting the possession, the complainant has also taken the electricity  connection from CESC. But repeated  demand has been  made for registration of the flat in the name  of the complainant but no heed  was paid by OPs. So,  ultimately a demand notice   was sent  by the complainant through his Ld. Advocate  on 28.04.2017. On  receipt  of the notice,  OP No.2 has also  replied  but the registration of the flat has not been made  by executing the deed and thus the present  case has been filed  by the complainant for directing  OP Nos. 1 & 2 to  register  the flat and the open car parking space in the  name of the complainant by executing and registration of  the deed of conveyance and further  to pay compensation of Rs. 50,000/-  for harassment  and mental agony caused to the  complainant.

 This complaint petition has been contested   by the OP No.1  by filing  a W.V. It is the specific  case of the OP No.1  i.e.  owner of the land that he had entered  into  the development agreement with the OP No.2  for raising the multi-storied  building  and also  had executed the General Power of Attorney but subsequently  as the OP No.2 failed and neglected  to obey the  directions  of the said  development agreement,  Power of Attorney has been  revoked  by a deed of revocation  dated 10^th  March, 2011. Said  fact has also been informed  to the OP No.2. So,  the complainant  is not  entitled to any relief  as prayed  for.  Thus   OP No.1  has prayed for  dismissal  of the complaint case.

          OP No.2 has also  contested   the case   by filing  the W.V.  contending  inter alia  that the  complainant is not a ‘Consumer’ . There has not been any  deficiency in services. The complainant  has entered  into  the said flat in the year 2013 without paying full consideration amount  to the OP. The complainant has also  failed to pay the  maintenance charges  for the said flat till date and  has not paid taxes. He has  illegally taken  the electric connection  without the consent  of the OPs. The complainant has also failed to pay Rs. 56,000/- for installation of transformer  in the said building as agreed  by and between the parties. It is also contended that the complainant  is illegally  using  car parking space . Thus, the OP No.2  has also prayed for dismissal  of the complaint with exemplary  cost.

          The complainant has annexed with the petition of complaint,  documents  i.e. copy of   General Power of Attorney executed  by OP No.1 in favour of the OP No.2. The copy of the agreement for sale entered into between the complainant and the OP No.2 on 02.12.2011. The copy of the receipts showing the payment of amount by the complainant to the OP No.2. Copy  of the Completion Certificate. Copy of the document relating to taking of gas connection. The copy of the notice sent to the OP through his Ld. Advocate and the copy of the reply sent by OP No.2.

          In course of the evidence, both the parties filed their respective evidence –in-chief followed by  cross-examination in the form of questionnaire and the reply thereto.

Both the parties have filed the written notes of argument. So,  in the backdrop  of cases of  both  the parties  following points  require  determination :-

 (1) Whether  there has been any  deficiency in services on the part of the  OPs ;

(2) Whether  the complainant  is entitled to relief as prayed for.

Decision with reason

 Point Nos. 1 and 2 : Both these points are taken - up together for discussion for the sake of brevity and convenience and in order to avoid   repetition. It appears  from the copy of the documents specially the agreement that  the complainant  entered into an agreement  with the OP  No.2 who allegedly  was Power of Attorney holder of OP No.1 /owner, on  02.12.2011. OP No.2 agreed   to sell a residential flat and open car parking space no1B on the first floor, middle side measuring super built up area more or less 650 sq.ft. and one open car parking space on the ground floor of the said proposed  G +  4  storied building  together with undivided proportionate share  in land  including all common facilities  and common amenities belonging to the said building as well as belonging to the said premises more fully  described in the second schedule in the agreement at a total consideration price of Rs.13,20,000/- only i.e. flat  value of Rs. 11,70,000/- only and open car parking value of Rs. 1,50,000/-.

          On perusal of the W.V.  filed by the OP No.2 it appears that the  execution of the agreement has not been disputed and denied and it is also  apparent from the W.V.  that the present complainant is in possession  of the said flat. He is also keeping the car in parking space. The possession of the flat by the complainant is further strengthened from the fact that the OP No.2 has admitted that the complainant has obtained the supply   of electricity in the said flat from the CESC.

          In order to snow that he has made the payment of consideration amount in part, complainant  has filed copies of receipts which are  four in numbers  showing  payment of Rs. 4,70,000/- , Rs. 1,00,000/- Rs. 1,50,000/-  and Rs. 3,00,000/-  respectively by  cheque. These receipts   have been issued by the OP No.2 on behalf of the Rakhi Construction of which he is the proprietor. However, it is apparent that the complainant has not made full payment of the total consideration amount as agreed i.e.  Rs. 13,20,000/- . It is evident from the sale agreement that the possession of the flat was to be delivered by the developer   within 1 month from the date of execution of the agreement and thereafter the deed of conveyance shall be executed and registered. On calculation of amount in the receipts filed in this case, it appears that the total amount of Rs. 10,20,000/-  has been paid. However, in this context, it may be pertinent  to point out that the agreement for sale also  reveals that  it  was agreed between the parties that the purchaser( in this case the complainant ) will  also pay Rs. 56,000/-  only to the developer towards  installation of  transformer charges in the  said building. But the same admittedly has not been paid by the complainant.

          The only dispute which has been raised in this case by the OP No.1/owner that the Power of Attorney executed in favour of OP No.2  was revoked by document dated 10.03.2011. In the present case, the agreement was entered into between the parties on 02.12.2011. So the main contention of the OP No.1 appears to be that on the date of execution of the agreement of sale, OP No.2   was not empowered. But in this context it may be mentioned here that no document has been filed by the OP/owner to show that the Power of Attorney was revoked. Neither the copy of the said revocation of Power of Attorney has been neither filed nor any other document. So, there is no material before this Forum that on the date of execution of the agreement of sale, OP No.2   was not empowered to enter into the agreement of sale with the complainant. It further appears from copy of a deed of conveyance  filed that the deed has been executed on 31.08.2012 in favour of one different  party but in the said  deed the OP No.2 is also a signatory in his capacity  as a developer . If that be so, the contention of revocation of Power of Attorney cannot be accepted.

So  in view of the discussions  highlighted  above as it is  evident from the material on record that the OP No.2  had entered into an agreement for sale  of flat and a car parking space  and even  though possession has been  handed over to the complainant but no  deed of conveyance  has been executed, complainant  is entitled to  execution and registration of deed of conveyance  in his  name  subject to payment of  the balance amount of consideration  and also Rs. 56,000/- towards  the charges for  installation of transformer in the building. The OP No.2 has only denied the allegation in his W.V. in para – 13 that after taking Rs.  10,20,000/-  he  did not register the said flat. But he has not stated anything specifically that he did not receive  the said  amount of Rs. 10,20,000/- from the complainant. We have already highlighted above that OP No.2 has issued the receipt acknowledging  receiving cheques of total sum of Rs. 10,20,000/-.

          So in view of the discussion  highlighted above, as the OPs  have failed to execute and register  the deed of conveyance in compliance to the agreement  entered  into between the parties,  there has been deficiency in service and thus  the complainant is entitled to the relief for  directing the OPs for execution and registration  of the deed of conveyance in favour of the complainant in respect of the  scheduled  flat and the car parking space. However,  in the given facts and circumstances  of this case, no compensation  is awarded. Thus, these points are answered accordingly.

          In the result, complaint case succeeds in part.

Hence,

Ordered

        CC/618/2017 is allowed in part against the OPs. OPs are hereby directed to execute and register the deed of conveyance in respect of the flat and the car parking space in the name of complainant within three from the date of this order on receiving balance consideration amount of Rs. 3,00,000/- and Rs.56,000/- referred to above in the judgement complainant is directed  to pay the above-mentioned amount to the OP.