State Consumer Disputes Redressal Commission
Sri Sunil Kumar Das Alias Sunil Ranjan ... vs Smt. Ritu Roy on 2 September, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. FA/706/2014 (Arisen out of Order Dated 05/06/2014 in Case No. Complaint Case No. CC/226/2013 of District South 24 Parganas) 1. Sri Sunil Kumar Das alias Sunil Ranjan Das S/o Late Abinash Chandra Pramanick, 5/4, Telipara Lane, Dhakuria, P.S.- Garfa, Kolkata -700 031. 2. Smt. Mousumi Das D/o Sri Sunil Kumar Das, 5/4, Telipara Lane, Dhakuria, P.S.- Garfa, Kolkata -700 031. 3. Smt. Gita Das W/o Subal Chandra Das, D/o Lt. Amarendra Nath Das, 395, Taramoni Ghat Road, P.O. Paschim Putiary, P.S. Haridevpur, Kolkata -700 041. ...........Appellant(s) Versus 1. Smt. Ritu Roy D/o Late Dhira Mondal Dutta, 28B, Dr. Nagen Ghosh Lane, Dhakuria, P.S. - Garfa, Kolkata -700 031. 2. Sri Hemanta Sarkar S/o Late Jagesh Chandra Sarkar, 48, Tanupukur Rd., Dhakuria, P.S. Garfa, Kolkata-700031 & business at 53A, Tanupukur Rd., Nripan Banerjee Sarani, Dhakuria, P.S.Garfa, Kolkata-700 031. 3. Sri Nandalal Das S/o Lt. Amarendra Nath Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 4. Sri Madan Mohan Das S/o Lt. Amarendra Nath Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 5. Sri Swapan Kumar Das S/o Lt. Amarendra Nath Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 6. Smt. Maya Das W/o Lt. Dulal Ch. Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 7. Sri Shyamal Kumar Das S/o Lt. Dulal Ch. Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 8. Sri Tapan Kumar Das S/o Lt. Dulal Ch. Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 9. Smt. Rita Pramanik W/o Sri Subrata Kr. Pramanik, D/o Lt. Dulal Ch. Das, Vill. Uttarpara, P.O. Jaynagar Mojilpur, P.S. Jaynagar, Dist. South 24 Pgs. 10. Sri Hirendra Nath Das Husband of Lt. Sabita Das, D/o Lt. Amarendra Nath Das, 172/1, Ghatak Para, Kanakshali, P.O. Chunchurah, Dist. Hooghly. 11. Smt. Manish Dhar W/o Sri Sukumar Dhar, D/o Lt. Sabita Das & Sri Hirendra Nath Das, Kadamtala, Kanakshali, P.O. Chunchurah, Dist. Hooghly. 12. Miss Sikha Das D/o Lt. Amarendra Nath Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 13. Smt. Basanti Das W/o Lt. Pradip Kumar Das, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 14. Smt. Putul Roy W/o Lt. Rabindra Nath Roy, D/o Lt. Bhupendra Nath Das, 58, Akra Bati Lane, P.S. Serampore, Dist. Hooghly. 15. Smt. Bulbul Pramanik D/o Lt. Bhupendra Nath Das, W/o Sri Prabhat Pramanik, 25, Naylankar Thakur Para Road, P.O. Batpara, P.S. Jagatdal, Dist. North 24 Pgs. 16. Smt. Aruna Sengupta D/o Lt. Bhupendra Nath Das, W/o Sri Dipen Kr. Sengupta, 28A, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. 17. Smt. Arati Kayal W/o Sri Ratikanta Kayal, D/o Lt. Bhupendra Nath Das, Vill. Balarampore, P.S. Bonhooghly, via Narendrapur, Dist. South 24 Pgs. 18. Sri Sanat Kumar Biswas @ Sri Santa Kumar Biswas S/o Lt. Kirod Lal Biswas, 28B, Dr. Nagen Ghosh Lane, P.S. Kasba, Dhakuria, Kolkata-700 031. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Mr. Anjan Kr. Dutta Mr. radika Ranjan Barik , Advocate For the Respondent: Mr. Ashim Mukhopadhyay., Advocate Mr. Saral Kr. Paira., Advocate Dated : 02 Sep 2016 Final Order / Judgement Date of filing ::23.06.2014 Date of hearing : 23.08.2016 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
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 Nos.8A, 8B & 11 to impeach the judgement and Final Order dated 05.06.2014 passed by the Ld. District Consumer Disputes Redressal Forum, South 24-Parganas at Alipore ( for short, Ld. District Forum ) in Consumer Complaint No.226/2013 whereby the consumer complaint initiated by the Respondent Nos. 1 to 18 Under Section 12 of the Act was allowed on contest against OP No.1, 8A, 8B & 11 and exparte against the rest with cost of Rs. 10,000/- with direction upon the Opposite Parties to execute and register the deed of conveyance after receipt of balance consideration of Rs. 84,600/-, to pay compensation of 50,000/-.
The Respondents herein being landlords in respect of a piece of land measuring about 8 cottahs, 8 chittacks and 21 sq. feet lying and situated at premises no. 28/B, Dr. Nagan Ghosh Lane, P. S. Garfa, Kolkata - 700 031 had entered an agreement with one Hemanta Sarkar (Respondent No.2 ) on 17.01.2002 to construct a G + 3 storied building containing flats. The Respondent No.2 / OP had entered into an agreement with Respondent No.1 /Complainant to sell out one flat measuring about 550 sq. feet on the 1st floor at a consideration of Rs. 6,00,000/- on 22.12.2007. The Respondent No.1 has paid of Rs. 5,15,400/- to the respondent no.2 on diverse dates. The Respondent No.1/Complainant was given the possession the flat after payment of consideration amount at per allotment letter dated 10.06.2008. Subsequently, on several occasions the respondent no.1 requested respondent no.2 to execute the sale deed but it went in vain. Hence, the complaint with prayer for certain reliefs, viz. - (a) to direct the Opposite Parties to register the deed of conveyance in respect of schedule property; (b) to compensation of Rs. 1,00,000/- and (c) to pay litigation cost of Rs. 50,000/-.
The Opposite Party No. 8A, 8B and 11 by filing a joint Written Version has stated that the OP No.1 /Respondent No.2 misguided to Respondent No.1/Complainant and cheated cash money from her as he had no right to sell owner's allocation and as such the Opposite Party No.1 only may be penalised.
After assessing the materials on record including the evidence led by the parties the Ld. District Forum by the impugned order allowed the complaint as indicated above, which prompted OP Nos. 8A,8B and 11 to prefer this appeal.
We have scrutinised the materials on record and considered the submission advanced by Ld. Advocate for the Appellants, Respondent No.1 and Respondent No.2.
Having heard the Ld. Advocates for the respective parties and on going through the materials on record it would reveal that on 17.01.2002 the Appellants herein being landowners had executed one memorandum of agreement with the respondent no.2 Shri Hemanta Sarkar authorising him to construct a G+3 storied building over a total land measuring about 8 cottahs, 8 chittacks and 21 sq. feet which has been amalgamated and numbered as premises 28/B, Dr. Nagan Ghosh lane, P.S. Garfa, Kolkata 700 031. Being emboldened with that development agreement, the Respondent No.2 had entered into an agreement on 22.12.2007 with the Respondent No.1/Complainant to sold out the schedule property measuring about 550 sq. feet on the 1st floor in the said premises at a consideration of Rs. 6,00,000/-. The evidence on record indicates that the respondent no.1 has made payment of Rs. 5,15,400/- to the Respondent No. 2 on diverse dates. However, the Respondent No.2 has expressed his inability to execute the sale deed in favour of Respondent No.1. As per the terms of the agreement the respondent no.2 was under obligation to execute the deed of conveyance in favour of the respondent no.1/complainant within 6 months from the date of agreement but non-execution of the deed of conveyance led the intending purchaser Smt. Ritu Roy to approach the Ld. District Forum.
Mr. Anjan Kumar Dutta, Ld. Advocate for the Appellants has submitted that respondent no.2 had no authority to enter into an agreement with the respondent no.1. Expanding his argument, Ld. Advocate for the appellant has submitted that on 09.12.2005 the appellants being owners of the property executed a registered general power of attorney authorising Shri Nandalal Das and Smt. Basanti Das (1) to receive from the intending purchaser /purchasers any earnest money and/or advance and also the balance purchase money and to give valid receipt and discharge for same which will protect the purchaser/purchasers or to accept the entire consideration money from the intending purchaser/purchasers and to deposit the consideration money and/or sale proceeds time to time for sale of any portion of the joint property in Bank Account or Accounts. Ld. Advocate for the appellants has also submitted that the respondent no.2 had no authority whatsoever to transfer an allocated portion of the land owners.
The materials on record indicated on 17.01.2002 the landowners/appellants executed a memorandum of agreement with respondent no.2 for raising a construction of G+3 storied building. As per terms of the said agreement the flat in question falls within the allocated portion of the landowner. In the facts and circumstances, the landowners had no occasion to execute a registered general power of attorney authorising Shri Nandalal Das and Smt. Basanti Das ( who are also landowners ) without revoking or cancelling the memorandum of agreement executed by them in favour of Respondent no.2 on 17.01.2002. The fact remains that basing upon the same, the respondent no.1/ purchaser has agreed to purchase the schedule property and to that effect he has already paid a sum of Rs. 5,15,400/- out of total consideration of Rs. 6,00,000/-. It is important to note that on 10.06.2008 the respondent no.1 / purchaser is in possession of the schedule property. The landowners did not take any action whatsoever for eviction of respondent no.1 from the schedule property.
Ld. Advocate appearing for respondent no.2 has contended that the respondent no.2 is ready and willing to execute the sale deed in favour of the complainant but due to non-cooperation of the landowners he could not execute the deed as he has got no power to do the same. However, the facts and circumstances indicate that some inter se dispute is going on between the developer and the landowner but for that reason the Respondent no.1/purchaser should not be victimised, more particularly when the landowners had accepted the possession of the respondent no. 1 in the schedule property for the last 8 years.
Considering the entire facts and circumstances, we feel that the Ld. District Forum was quite justified in directing the Opposite Parties to execute and register the deed of conveyance in respect of the schedule property after receipt of balance consideration of Rs.84,600/-. However, the Ld. District Forum was not justified in awarding compensation upon respondent no.2 as he was authorised by the landowners to construct the building and as such the order of compensation is liable to be set aside.
Consequently, appeal is disposed of on contest without any order as to costs in this appeal with a modification to the order that the respondent no.2/OP No.1 shall have no liability to pay compensation. The landowners and developers are jointly and severally directed to execute the sale deed in respect of schedule property in favour of respondent no.1 Smt. Ritu Roy within 30 days after receipt of balance consideration amount of Rs. 84,600/-, otherwise the respondent no.1/complainant shall have liberty to get the deed registered through machinery of the Ld. District Forum.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24-Paranas at Baruipur for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER