State Consumer Disputes Redressal Commission
Smt. Bhakti Dutta vs Shri Pradyut Roy on 17 March, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/429/2015 (Arisen out of Order Dated 09/03/2015 in Case No. Complaint Case No. CC/347/2014 of District North 24 Parganas) 1. Smt. Bhakti Dutta W/o Late Dr. Paresh Chandra Dutta, 31, Subhas Nagar, 1st floor, Noa Para, P.S. Baranagar, Calcutta -700 090. ...........Appellant(s) Versus 1. Shri Pradyut Roy S/o Sri Madan Gopal Roy, 31/1/1, Subhas Nagar, Noa Para, P.S. Baranagar, Calcutta -700090. 2. Sri Surendra Roy S/o Lt. Shiwan Roy, 69/3/3/A, Mondal Para Lane, P.S. Baranagar, Calcutta -700 090. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: For the Respondent: Dated : 17 Mar 2017 Final Order / Judgement
Date of Filing - 07.04.2015 Date of Hearing - 07.03.2017 The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Opposite Party no.1/landowner to impeach the Judgement/Final Order dated 09.03.2015 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 347/2014. By the impugned order, the Ld. District Forum allowed the consumer complaint initiated by the Respondent no.1 Sri Prodyut Roy under Section 12 of the Act with certain directions upon the opposite parties like - (a) to execute and register the Deed of Conveyance after receipt of balance consideration amount of Rs.6,19,500/-; (b) to pay litigation costs etc. The Respondent no.1 herein being complainant lodged the complaint asserting that on 25.06.2012 he entered into an agreement with the OP no.2/developer to purchase a self-contained flat measuring about 430 sq. ft. on the ground floor at Premises No.31, Subhas Nagar, P.S.- Baranagar, Kolkata - 700090, Dist- North 24 Parganas within the local limits of Baranagar Municipality at a total consideration of Rs.11,39,500/-. The complainant has already paid Rs.5,20,000/- as part consideration amount against the said total consideration amount. It was agreed that the opposite parties will deliver the possession of the flat within 20 months from the date of execution of the agreement but till today no step has been taken by the OPs to handover the possession of the said flat as well as to register the Deed of Conveyance in favour of the complainant. Hence, the respondent no.1 approached the Ld. District Forum with prayer for certain reliefs, viz - (a) to direct the opposite parties to execute the Deed of Conveyance in respect of 'B' schedule property after accepting balance consideration money of Rs.6,19,500/-; (b) compensation and (c) litigation cost etc. The appellant/landowner being OP no.1 in her written version has stated that the OP no.2/developer constructed the building by violating the sanctioned plan and has been trying to sell his allocation without procuring the completion certificate of the building or other statutory obligations. The OP no.1 has also stated that the complainant and OP no.2 are in collusion with each other for which the complainant has been trying to get the subject flat at a cheaper rate.
The respondent no.2/developer being OP no.2 has stated that in terms of Development Agreement and on the basis of sanctioned plan issued by the Municipality, the landlady/OP no.1 has already taken her share and is possession of the same. The OP no.2 has also stated that during construction, he invested several lakhs of rupees for the said project but at the instigation of the son of OP no.1, OP no.1 has been creating complications. However, OP no.2 has stated that he is ready and willing to execute and register the Deed in respect of the subject flat on receipt of balance amount of Rs.7,22,000/-. The OP no.2 has made a counter claim of Rs.3,00,000/- for damages and Rs. 2,00,000/- as compensation.
After assessing the materials on record, the Ld. District Forum by the impugned Judgement/Final Order allowed the complaint with certain directions upon the opposite parties as indicate above. Being aggrieved by and dissatisfied with the said order, the OP no.1/landowner has come up in this Commission with the present appeal.
I have scrutinised the materials available on record and considered the submission advanced by the Ld. Advocates for respondent no.1/intending purchaser and appellant/landowner. The OP no.2/respondent no.2 did not participate in the hearing of the appeal and under compulsion, the appeal was heard on merit in absence of the respondent no.2.
Having heard the Ld. Advocates of the respective parties and on going through the materials on record, it would reveal that the appellant is the owner in respect of 2 cottahs 14 chhitaks of land lying and situated at Premises No.31, Subhas Nagar, P.S.- Baranagar, Kolkata - 700090, Dist- North 24 Parganas within the local limits of Baranagar Municipality. In order to develop of the said property, the appellant had entered into an agreement with the appellant on 05.04.2010 whereby the owner's allocation and developer's allocation has been specified in schedule 'B' and schedule 'C' respectively in the said agreement. On 19.08.2011 on the basis of the said Development Agreement, the appellant executed a General Power of Attorney in favour of the respondent no.2. However, on 14.06.2012 the said Power of Attorney has been revoked by the appellant.
Interestingly, on 25.06.2012 on the strength of the Development Agreement and the Power of Attorney executed by appellant, respondent no.2 had entered into an agreement with the respondent no.1 to sell a self-contained flat measuring about 430 sq. ft. on the ground floor at Premises No.31, Subhas Nagar, P.S.- Baranagar, Kolkata - 700090, Dist- North 24 Parganas within the local limits of Baranagar Municipality at a total consideration of Rs.11,39,500/-. The evidence on record goes to show that complainant has already paid Rs.5,20,000/- as part consideration amount against the said total consideration amount. It is alleged by the respondent no.1 that inspite of his requests and persuasions, the appellant/developer is showing apathy to execute and register the Sale Deed.
The Ld. District Forum has allowed the complaint simply on the ground that after receipt of part consideration amount of Rs.5,20,000/- out of total consideration of Rs.11,39,500/-, the OP no.2/developer is bound to execute and register the Deed of Conveyance. But in passing the order impugned, the Ld. District Forum did not consider the evidence on record, particularly the documents and other attending circumstances behind the entire episode.
On a close scrutiny of the record, it transpires that on the allegation of forgery, one case being Baranagar P.S. Case No.485/2014 dated 10.07.2014 under Sections 379/427/467/471/34 of IPC has been registered against the respondent no.2/developer. The investigation of the said case was started on the basis of FIR lodged by respondent no.1 and on investigation, it was found that the respondent no.2/developer procured money from the respondent no.1 after executing an Agreement for Sale while he had no Power of Attorney to sale the flat. The most startling factor is that a notice under Section 218(1) of the West Bengal Municipal Act, 1993 has been issued by the Baranagar Municipal Office with a direction upon the developer and the land owner to demolish the unauthorised construction of the building for raising construction deviating the sanctioned building plan.
Considering the entire facts and circumstances, it emerges that there was hardly any authority of the appellant to enter into Agreement for Sale with the respondent no.1 on 25.06.2012. Practically, after revocation of Power of Attorney, the appellant has become handicap and has no authority to execute the Sale Deed in favour of the respondent no.1. Accordingly, the only alternative for the respondent no.1/complainant to get refund of the amount of Rs.5,20,000/- paid by him to the OP no.2/respondent no.2 with interest from the date of payment till realisation of the same. In any case, the Ld. District Forum has committed a grave error by allowing the complaint, particularly when the builder/developer had no authority to enter into Agreement for Sale with the respondent no.1 and further an order of demolition of building has already been made by the Baranagar Municipality.
For the reasons aforesaid, the impugned Judgement/Final Order is modified to the extent that the respondent no.2/OP no.2 shall refund Rs.5,20,000/- together with interest thereon @ 12% p.a. to the respondent no.1/complainant from the date of payment till its realisation. However, the complaint shall stands dismissed against the appellant/OP no.1 i.e. the landowner.
With the above observations and directions, the appeal is disposed of on contest. However, there will be no order as to costs in this appeal.
The Registrar of the Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER