State Consumer Disputes Redressal Commission
Sri Prithivi Raj Singh vs Sri Arup Mukherjee on 10 August, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/690/2016 ( Date of Filing : 02 Aug 2016 ) (Arisen out of Order Dated 01/07/2016 in Case No. Complaint Case No. CC/26/2015 of District Kolkata-II(Central)) 1. Sri Prithivi Raj Singh S/o Ram Binoy Singh, 6, Raja S.C. Mullick Road, P.S. - Jadavpur, Kolkata - 700 032. ...........Appellant(s) Versus 1. Sri Arup Mukherjee S/o Lt. Anupam Mukherjee, 54/2, Bidhan Pally, P.S. Jadavpur, Kolkata - 700 032. 2. Sri Basudev Dutta S/o Shyam Lal Dutta, A/1, Poddar Nagar Colony. 2, P.O. & P.S. - Jadavpur, Kolkata - 700 032. 3. Sri Amar Das S/o Sri Sunil Das, A/1, Poddar Nagar Colony. 2, P.O. & P.S. - Jadavpur, Kolkata - 700 032. 4. Smt. Susama Chakraborty W/o Sri Prasanta Chakraborty, A/1, Poddar Nagar Colony. 2, P.O. & P.S. - Jadavpur, Kolkata - 700 032. 5. Sri Tapan Kr. Ghosh S/o Lt. Santi Ranjan Ghosh, A/1, Poddar Nagar Colony.- 2, P.O. & 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. Prodip Kr. Basu, Mr. Raju Das, Advocate For the Respondent: None appears Dated : 10 Aug 2018 Final Order / Judgement
HON'BLE JUSTICE ISHAN CHANDRA DAS,PRESIDENT This Appeal has been directed against the judgement and order dated 1.7.2016 passed by ld. D.C.D.R.F. , Kolkata Unit III in C.C. 26 of 2015 where ld. Forum concerned while disposing of the said Complaint case allowed the same in part exparte against the OP No.1 and dismissed exparte against the OPs No. 2,3 & 5 and on contest against the OP no.4, directed the OP no.1 to refund a sum of Rs.9 Lakhs (Rupees Nine Lakhs) to the Complainant within two months from the date of the order with interest @ 12% per annum from the date of filing of this Complaint till its realization . Being aggrieved by such Judgement and Order the Complainant preferred this Appeal.
The case of the Complainant in a nutshell was that the OP no.1 was the Developer and the OP No. 2 to 5 were the owners who entered into an agreement for development of the premises, as referred to in the Schedule A of the Petition of Complaint and the Complainant while in search of a suitable residential accommodation within the vicinity of South Kolkata in the middle of 2013, he came to know about the above noted Development Work in the schedule 'A' property and made a contact with the OP no.1 and entered into an Agreement for purchasing a flat measuring about 700 sq.ft. super built up area on the ground floor described in Schedule B for a consideration of Rs.12,50,000/- (Rupees twelve lakhs fifty thousand) and paid a sum of Rs.9 lakhs ( Rupees nine lakhs) as earnest money and agreed to pay the balance consideration at the time of registration and possession of the flat. But the same was not completed and hence the Complainant sent a letter through his authorized Advocate to the OPs asking them to hand over possession of the flat and cause registration of the same but no result yielded. Moreover, it came to the knowledge of the Complainant that the OPs no.2 to 5 were trying to occupy the said flat forcibly by breaking open the padlock without due process of law and the OPs were trying to dispose of the said flat to the third party with a mala fide intention and deliberately adopting unfair trade practice. As they neither executed and registered the Deed of Conveyance in favour of the Complainant nor handed over possession of the said flat within the stipulated period as mentioned in the agreement dated 20.9.2013 it amounted to deficiency of service. In the premises, the Complainant had been suffering from mental agony and financial loss which should be adequately compensated by the OPs and accordingly he prayed for a direction upon the OPs to complete the construction work of the building as well as the flat in question as per agreement for sale dated 20.9.2013, to execute and register the Deed of conveyance in favour of the Complainant and to give delivery of possession , compensation to the tune of Rs.3,50,000/- (Rupees three lakhs fifty thousand) and Rs.50,000/- (Rupees fifty thousand) as litigation cost and other consequential reliefs.
The OP No. 4 filed Written Statement to contest the Complaint case and contended that the Complaint case was not maintainable . Denying the cause of action as averred in the body of the Petition of complaint, the OP no.4 in her Written version contended that the OPs No. 2 to 5 being the land owners just engaged the OP No. 1 for developing the multi storied building and executed a General Power of Attorney in favour of the OP No.1 and asked the OP NO.1 to deposit the sale proceeds in the account of the land lords. Denying the responsibilities of the OP NO.2 to 5 this OP No.4 in her Written version categorically blamed the OP No.1 for doing the mischief by way of cheating the land owners and many stranger purchasers in various ways. Denying and disputing all other material averments as contained in the body of the Application this OP ultimately prayed for dismissal of the Complaint case.
Ld. Trial Forum upon consideration of materials on record allowed the Petition of Complaint in part and directed the OP NO.1 only to refund the Earnest Money to the tune of Rs.9 Lakhs (Rupees Nine lakhs) and to pay interest of the same on the said amount from the date of filing of the Complaint case till the realization of the amount.
Now the point for consideration is whether the Trial Forum was justified in passing such order.
Admittedly, the OP no.1 is the Developer and the OP No. 2 to 5 are the land owners and the case record reveals that there was a general Power of Attorney executed by the other OPs in favour of the OP NO.1, Arup Mukherjee . Ld. Counsel appearing for the Appellant in course of hearing drew our attention to the relevant paragraphs of the Agreement for Sale and pointed out that the OPs/Land owners tied themselves with the fate of the Developer as per terms of the General Power of Attorney as following -
"6. To receive from the intending purchaser or Purchasers any money that would be paid to our said Attorney by them as consideration money or part thereof and to give and grant good, valid receipt to such person or persons for the purpose thereof and the consideration money will be deposited in our Bank Account
7. To sign and execute all agreement for sale, deed of conveyance in favour of the intending Purchaser or Purchasers in respect of the premises receiving the consideration money and admit execution thereof on our behalf and present such agreements, deeds, papers, writings and documents for registration before the appropriate Registering Officer or Authority having jurisdiction and to have them registered according to law and to do all other acts, deeds, and things as may be required for the registration of those deeds and documents and obtain return of the registered documents from the registry office which our said Attorney shall consider necessary for the transferring and/or conveying the said property or any part or portion thereof the Purchaser or Purchasers.
8. To ask for demand, recover, receive and collect any money or debt arising out of or in connection with the affairs of the said property from any person or persons, company or association, authority or authorities, firm, government or semi-government concern or concerns including any statutory, local or public body for the purpose thereof."
Accordingly, he argued that ld. Trial forum was not justified in passing the Decree in part in favour of the Complainant and submitted that the OP No.1 was alone responsible and prayed for exemption of the other OPs/Land owners from taking responsibilities of the payment in view of the terms of agreement as argued above. He further argued that his client prayed for a direction upon the oPs to execute and register of the Deed of conveyance, to hand over possession of the flat, to pay compensation and other consequential reliefs and he never prayed for refund of consideration as directed.
On careful consideration of materials on record we find substance in his argument and accordingly we allow the Appeal, modify the judgement and order impugned and direct that the parties are jointly and severally liable to execute and register the Deed of Conveyance in favour of the Complainant/Appellant on acceptance of the balance consideration , to deliver possession of the flat in question as referred to in Schedule B , to pay Compensation to the tune of Rs.1 lakh (Rupees one lakh) and to pay a sum of Rs.15,000/- (Rupees fifteen thousand) towards litigation cost. The entire process shall be completed within a period of sixty days from the date of order and in default the Complainant is at liberty to pray for execution and registration of the Deed through the Forum concerned on deposit of the balance consideration where the OP No. 2 to 5 shall execute and register the documents as confirming parties and to deliver possession of the flat within the said period .
With the above modifications and directions this Appeal stands disposed of. Parties do bear their respective costs of Appeal. [HON'BLE MR. JUSTICE ISHAN CHANDRA DAS] PRESIDENT [HON'BLE MR. TARAPADA GANGOPADHYAY] MEMBER