State Consumer Disputes Redressal Commission
Sri Somnath Das vs Sri Shibu Das on 30 January, 2015
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/325/2013 (Arisen out of Order Dated 22/02/2013 in Case No. Complaint Case No. CC/41/2010 of District South 24 Parganas DF, Alipore) 1. Sri Somnath Das S/o Late Tarak Nath Das, 71-B, Kalighat Road, P.S.- Kalighat, Kolkata - 700 026, Dist. South 24 Pgs. ...........Appellant(s) Versus 1. Sri Shibu Das S/o Late Mangal Chandra Das, ED/25, Rajdanga Main Road, P.S. Kasba, Kolkata - 700 107. 2. Sri Amar Nath Das S/o Late Tarak Nath Das, 71-B, Kalighat Road, P.S.- Kalighat, Kolkata - 700 026 3. Smt. Namita Palchowdhury W/o Sri Kamal Krishna Palchowdhury, D/o Late Tarak Nath Das, 71-B, Kalighat Road, P.S.- Kalighat, Kolkata - 700 026 4. Sri Pranab Kumar Das S/o Late Loknath Das, 71-B, Kalighat Road, P.S.- Kalighat, Kolkata - 700 026 5. Smt. Pranati Das W/o Amiya Kumar Das, S/o Late Loknath Das, 71-B, Kalighat Road, P.S.- Kalighat, Kolkata - 700 026 6. Sri Bibhas Chandra Majumdar S/o Late Nishikanta Majumdar, 18/1/2, Chandar Village Road, P.S. Haridevpur (old Thakurpukur), Kolkata - 700 082. 7. Sri Ashim Das 368/B-4, Panchanantala Road, P.S. - Thakurpukur, Kolkata - 700 082. 8. Smt. Shabina Das 368/B-4, Panchanantala Road, P.S. - Thakurpukur, Kolkata - 700 082. 9. Sri Shyamal Bhowmick Sodepur, P.S. - Thakurpukur, Kolkata - 700 082. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE KALIDAS MUKHERJEE PRESIDENT HON'BLE MRS. MRIDULA ROY MEMBER HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Mrinal Kanti Chakraborty, Advocate For the Respondent: Mr. C. S. Mukherjee, Advocate Mrs. Keka Ray Chatterjee, Advocate Mr. S. K. Ghosh, Advocate Mr. S. K. Ghosh, Advocate ORDER
30/01/15 HON'BLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT This Appeal is directed against the judgment and order passed by Learned District Forum, Alipore, South 24-Parganas in case no.CC 41 of 2010 allowing the complaint and directing the OP Nos.1 to 6 to execute and register the deed of conveyance in respect of the property in question as per agreement within one month from the date of order. The OP No.2 was directed to pay litigation cost of Rs.10,000/- to the Complainant within one month from the date of order failing which he shall have to pay Rs.100 per day out of which 75% to be deposited with the SCWF and 25% be paid to the Complainant.
The case of the Complainant/Respondent, in short, is that on 20/07/07 the Complainant entered into an agreement for sale with the OP Nos.1 to 5 being the Land Owners and the OP No.6 being the Developer. In respect of a plot of land measuring 20 cottahs situated in plot no.572, khatian no.427 under P.S. Thakurpukur, District-South 24-Parganas as described in the schedule of the complaint. Prior to the agreement for sale there was a development agreement between the Land Owners and the OP No.6, that is, the Developer on 20/12/01 under certain conditions. The consideration money was fixed at Rs.3,40,000/- and the Complainant paid Rs.1 lakh on the date of agreement and thereafter on different dates further paid Rs.1,60,000/- to the Developer, that is, OP No.6 leaving a balance of Rs.80,000/- to be paid on the date of registration of the deed. The Complainant was always ready and willing to pay the balance amount, but the OPs did not register the deed of conveyance. For the said reason, the complaint was filed before the Learned District Forum.
The Learned Counsel for the Appellant/one of the Land Owners has submitted that the signature of the Appellant was obtained in a blank paper and the Developer entered into an agreement with the Purchaser and no power of attorney was given to the Developer. It is contended that in the agreement of the Complainant dated 20/07/07 there was no signature of the Vendors and the space was left blank. It is submitted that the Developer entered into an agreement with the Complainant without the knowledge of the Land Owners and there was no deficiency in service on the part of the Land Owners. It is submitted that the criminal case was pending u/s 420 I.P.C. The Learned Counsel for the Appellant has submitted that the Appellant did not move the Hon'ble High Court, Calcutta and in the instant case it is a sale simpliciter.
The Learned Counsel for the Respondent No.1/Purchaser has submitted that the OP No.6 is the Developer and the Complainant entered into an agreement with the Developer. It is submitted that the OP No.6 Developer filed W.V. in the Learned District Forum. It is submitted that a Civil Suit was pending between Developer and the Land Owner wherein Purchaser/Complainant was not a party. It is submitted that the Civil Suit filed by the Developer was dismissed. The Learned Counsel for the Respondent No.1 has filed the photocopy of the information slip to the effect that the Title Suit 3082 of 2009 pending before Ld. 5th Civil Judge (Junior Division), Alipore was dismissed on 05/12/13. The Learned Counsel for the Respondent No.1 has referred to the decisions reported in IV (2007) CPJ 290 (Andhra Pradesh) [N. Mahadevan vs. C. Lakshmi Kantnamma & Anr.] wherein it has been held that u/s 208 of the Indian Contract Act principal is bound by agent's action even if agent's authority has been cancelled under third party with whom agent enters into contract and knew about termination of agency. The Learned Counsel has referred to the decision of the Hon'ble National Commission reported in 2006 CTJ 342 (NC) [Haryana Urban Development Authority vs. Gulshan Malik] wherein it has been held that if a Developer fails to develop the area where the plot it has sold is situated, it is clearly guilty of deficiency in service.
The Learned Counsel for the Respondent Nos.7 and 8 has submitted that no relief has been sought for in the complaint against Respondent Nos.7 and 8 and the complaint was dismissed by the Learned District Forum against the Respondents.
The Learned Counsel for the Respondent No.6 Developer has submitted that the Appellant and OP Nos.1 to 4 the Land Owners made development agreement with the Developer on 20/12/01 and thereafter the Developer developed the land as per agreement and sold the different plots to 17 Purchasers. It is submitted that the Complainant/Respondent No.1 paid 80% of the consideration money and the possession has been delivered. It is contended that the Owners refused to execute the deed and filed a case before the Hon'ble High Court, Calcutta. It is submitted that the Developer is ready and willing to execute and register the deed of conveyance on receiving the balance amount of Rs.80,000/- towards consideration money.
We have heard the submission made by both sides and examined the papers on record. From the development agreement dated 20/12/01 it appears that the Owners entered into an agreement with the Developer and the Developer offered to purchase the land. It was further agreed upon that the Vendors have formed a scheme of dividing the land into several smaller plots having common passage for ingress and egress leading to the nearest public road. It was further stipulated that the Purchaser will develop the entire scheduled property by his own investment. The agreement was signed by Somnath Das for self and on behalf of other owners. The Developer also signed the said agreement. In view of the stipulation made in the development agreement, we are of the view that the contention of the Learned Counsel for the Appellant about the sale simpliciter is not acceptable.
We have perused the agreement for sale dated 20/07/07 wherein reference was made to earlier development agreement dated 20/12/01. The Developer signed the said agreement on behalf of the Vendors by virtue of agreement dated 20/12/01. The objection of the Learned Counsel for the Appellant that the Vendors/Owners did not sign the agreement of the Complainant is not acceptable. The Learned District Forum was of the view that the Developer should pay the compensation of Rs.70,000/- and cost of Rs.10,000/- totalling to Rs.80,000/- and that this amount of Rs.80,000/- would be adjusted against the balance amount of the consideration money of Rs.80,000/-. Having regard to the agreement dated 20/12/01 signed by the Appellant for self and other Owners and the fact that the Land Owners have also executed and registered the deed of conveyance in favour of other Purchasers, we are of the view that the Learned District Forum was justified in passing the impugned judgment and order. There is no ground to interfere with the findings of the Learned District Forum. There is no merit in this Appeal.
The Appeal is dismissed. The impugned judgment is affirmed. [HON'BLE MR. JUSTICE KALIDAS MUKHERJEE] PRESIDENT [HON'BLE MRS. MRIDULA ROY] MEMBER [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER