State Consumer Disputes Redressal Commission
Smt. Manju Basak vs Sri Shibdas Guha on 18 July, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/810/2016 (Arisen out of Order Dated 09/08/2016 in Case No. Complaint Case No. CC/143/2016 of District Kolkata-III(South)) 1. Smt. Manju Basak W/o Lt. Khagen Basak, 2/128, Bijoygarh Colony, P.O.- Jadavpur University, P.S. - Jadavpur, Kolkata - 700 032. ...........Appellant(s) Versus 1. Sri Shibdas Guha S/o Lt. Rakhal Chandra Guha, 2/94/20, Bijoygarh Colony, P.O.- Jadavpur University, P.S. - Jadavpur, Kolkata - 700 032. 2. Sri Sanjib Kr. Dutta S/o Lt. Satya Ranjan Dutta, 2/128, Bijoygarh Colony, P.O.- Jadavpur University, P.S. - Jadavpur, Kolkata - 700 032. 3. Sri Khokan Dutta S/o Lt. Satya Ranjan Dutta, 2/128, Bijoygarh Colony, P.O.- Jadavpur University, P.S. - Jadavpur, Kolkata - 700 032. 4. Smt. Sabita Ghosh D/o Lt. Satya Ranjan Dutta, 2/128, Bijoygarh Colony, P.O.- Jadavpur University, P.S. - Jadavpur, Kolkata - 700 032. 5. Smt. Mandira Sengupta D/o Lt. Satya Ranjan Dutta, 2/128, Bijoygarh Colony, P.O.- Jadavpur University, P.S. - Jadavpur, Kolkata - 700 032. ...........Respondent(s) BEFORE: HON'BLE MR. JUSTICE ISHAN CHANDRA DAS PRESIDENT HON'BLE MR. TARAPADA GANGOPADHYAY MEMBER For the Appellant: Mr. Keshab chandra Saha, Mr. Bijoy shaw, Advocate For the Respondent: Ms. Indrani Ghosh, Advocate Ms. Indrani Ghosh, Advocate Ms. Indrani Ghosh, Advocate Dated : 18 Jul 2017 Final Order / Judgement HON'BLE MR. TARAPADA GANGOPADHYAY, MEMBER
The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the Complainant against the judgment and order dated 09.08.2016 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-III in Complaint Case No. CC/143/2016, dismissing the Complaint.
The brief facts of the case, as emerging from the materials on record, are that the Appellant/Complainant entered into an Agreement for Sale dated 06.10.2013, executed between the Complainant-Purchaser and the Respondent No. 1-Developer on the strength of a registered Power of Attorney executed by the Landowner, which included their legal heirs being the Confirming Parties, for purchase of a flat of 509 sq. ft. against consideration of Rs. 14,00,000/-. After payment of the consideration in full in respect of the said flat, the Respondent No. 1-Developer handed over the possession of the flat to the Appellant/Complainant, but the Landowner having been died in course of construction of the said flat, the Respondent No. 1-Developer could not execute and register the Deed of Conveyance in respect of the flat concerned because of unwillingness of the legal heirs of the deceased Landowner to execute and register the Deed of Conveyance. With this factual background, the Complainant moved the Complaint before the Ld. District Forum which passed the order dismissing the Complaint on the ground that in the event of death of the Landowner the legal heirs of the deceased Landowner have no liability to execute and register the Deed of Conveyance in question. Being aggrieved by such order the Complainant has moved the present Appeal.
The Ld. Advocate for the Appellant/Complainant submits that the Ld. District Forum passed the order impugned erroneously without due consideration of the terms and conditions of the Development-Agreement, the Agreement for Sale and the registered Power of Attorney concerned.
The Ld. Advocate also submits that the legal heirs of the deceased Landowner cannot shake off their liability to execute and register the Deed of Conveyance as the Confirming Parties of the Agreement for Sale concerned included the legal heirs as well as the successors of the deceased Landowner, as evident from the Agreement for Sale concerned.
The Ld. Advocate continues that as the deceased Landowner including his legal heirs by means of registered Power of Attorney authorized the Respondent No. 1-Developer to receive the consideration money from the intending purchasers, so the legal heirs of the deceased Landowner, i.e. the Respondent Nos. 3,4 & 5, cannot evade their contractual obligation to execute and register the Deed of Conveyance in favour of the bonafide intending purchasers.
The Ld. Advocate concludes that the failure, on the part of the legal heirs of the deceased Landowner, i.e. the Respondent Nos. 3,4 & 5, to execute and register the Deed of Conveyance as per their contractual obligation to do so on the strength of the Agreement for Sale concerned, constitutes deficiency in service on the part of both the Respondent Nos. 3,4 & 5, being the legal heirs of the deceased Landowner, and of the Respondent No. 1-Developer, and hence, the instant Apeal should be allowed and the impugned judgment and order be set aside and the Respondent Nos. 3,4 & 5, i.e. the legal heirs of the deceased Landowner, and the Respondent No. 1-Developer should be directed to execute and register the Deed of Conveyance in question.
On the other hand, the Ld. Advocate for the Respondent Nos. 3,4 & 5, the legal heirs of the deceased Landowner, submits that there is no error in the impugned judgment and order.
The Ld. Advocate continues that as in the Agreement for Sale concerned there was no signature of the deceased Landowner, so neither the deceased Landowner nor his legal heirs, i.e. Respondent Nos. 3,4 & 5, has any liability for execution and registration of the Deed of Conveyance in question.
The Ld. Advocate also submits that the Appellant/Complainant did not file before the Ld. District Forum the Power of Attorney, Development Agreement etc. which have been filed with the instant Appeal, and the same has not been relied upon by the Ld. District Forum and hence, the same should not be considered by this Commission.
The Ld. Advocate concludes that in view of the aforesaid submission, the instant Appeal should be dismissed and the order impugned be affirmed.
The clauses of the Power of Attorney registered on 12.9.2013 with the D.S.R.I., Alipore, South 24 Parganas, which were executed following the terms and conditions of the Development-Agreement, as available on records, exhibit that the Landowner authorized the Respondent No. 1-Developer to negotiate with and to receive the consideration money from the intending purchasers in respect of the flats involved, which falls within the allocated portion of the Respondent No. 1-Developer, and also to sign, execute and register the Deeds of Conveyance in favour of the purchasers on receipt of the consideration of the flats.
From the aforesaid registered Power of Attorney it is revealed that the Respondent No. 1-Developer, who is an authorized agent of the Respondent Nos. 3,4 & 5, being the legal heirs of the deceased Landowner, has himself an interest in the flat in question which forms the subject matter of the agency. In such kind of agency the agency cannot, in the absence of any expressed contract, which is absent in the case in question, be terminated to the prejudice of such interest. It is well-settled that while the agency is created for valuable consideration and authority is given to secure the interest of the agent, the authority cannot be terminated. In this context, reliance is placed on the decision of the Hon'ble Supreme Court in the case of Seth Loon Karan Sethiya Vs. Ivan E.John & Ors., reported in AIR 1969 SC 73.
Moreover, in another judgment of the Delhi High Court in Ramesh Chand Vs. Suresh Chand & Anr., decided on 9.4.2012 in RFA No. 358/2000, it was observed "the object of giving validity of Power of Attorney given for consideration even after death of the executants is to ensure that entitlement of such Power of Attorney remains because the same is not a regular or routine Power of Attorney, but the same had element of a commercial transaction which cannot be allowed to be frustrated on account of death of the executants of the Power of Attorney".
Furthermore, Section 202 of the Indian Contract Act, 1872 provides "Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest".
It is also well settled that the purchaser cannot be made to suffer for any dispute between the developer and the landowner, i.e the legal heirs of the deceased Landowner.
In view of the above discussion, the instant Appeal is allowed. The impugned judgment and order is set aside and the Complaint is restored. All the Respondents/OPs are directed to execute and register the Deed of Conveyance in favour of the Appellant/Complainant within 45 days from the date of this order, failing which the Appellant/Complainant will be at liberty to get the Deed of Conveyance registered through the machinery of the Ld. District Forum concerned. The OPs are also directed to pay compensation to the tune of Rs. 75,000/- to the Appellant/Complainant for harassment and mental agony caused to the Appellant/Complainant and also to pay to the Appellant/Complainant litigation cost to the tune of Rs. 5,000/- within 45 days from the date of the order, failing which interest @ 9% per annum shall accrue on the said amount from the date of default till realization in full. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER