State Consumer Disputes Redressal Commission
Sri Mantu Ranjan Dutta vs Sri Sumit Mallik & Anr. on 26 November, 2013
D R A F T
State Consumer Disputes Redressal
Commission
West Bengal
11A, Mirza Ghalib Street, Kolkata - 700087
S.C. CASE NO.
: FA/143/2013
(Arising out
of order dated 09.01.2013 of Consumer Case No. 83 of 2012 D.C.D.R.F., Howrah)
Date of Filing : 06.02.2013 Date
of Final Order : 26.11.2013
APPELLANTS/COMPLAINANTS :
Sri Mantu Ranjan Dutta,
son of Late Sitanath Dutta,
by faith Hindu, by
occupation Business,
resident of 149 + 151, G. T. Road
(North), Salkia, P. S.
Malipanchghora,
District Howrah.
RESPONDENTS/O.P.S :
1. Sri Sumit Mallik
son of Late Subhas Chandra
Mallik,
2. Mrs. Anuradha Mallik,
wife of Sri Sumit Mallik, both
Nos. 1 & 2 residing at 12,
Kaibarta Para
Lane, P.O.
Salkia, P. S. Malipanchghora,
District Howrah.
BEFORE : HONBLE JUSTICE : Sri Kalidas
Mukherjee,
President.
MEMBER : Smt. Mridula Roy.
FOR THE PETITIONER /
APPELLANT : Mr. Tapas Kumar Ghosh,
Ld. Advocate.
FOR THE RESPONDENT / O.P.S. : Mrs. Babita Chowdhury,
Ld. Advocate.
: O R D E R :
MRIDULA ROY, MEMBER.
The instant appeal is directed against judgement and order dated 09.01.2013 passed by Ld. District Forum, Howrah in Complaint Case No. HDF 83 of 2012 allowing the same on contest against the O.P. Nos. 1 & 2 and 3 & 4 with cost directing the Complainants to pay the outstanding amount of Rs.25,000/- to the O.P. No. 4 within 15 days from the date of order directing the O.P. No. 4 after receiving the outstanding amount of consideration to execute and register the Sale Deed in respect of the scheduled flat within 30 days from the date of order, directing the O.P. Nos. 1 & 2 to execute as confirming party the Sale Deed, further directing the O.P. Nos. 1, 2, 3 & 4 to pay the Complainants Rs.1,00,000/- towards compensation and Rs.10,000/- towards litigation cost within 30 days from the date of order failing which the said amount would carry an interest @ 12% per annum.
Being aggrieved by and dissatisfied with the impugned order the O.P. No. 1, one of the landowners, has preferred the instant appeal.
The Complainants case before the Ld. District Forum, in brief, is that the Complainants entered into an agreement for sale dated 22.05.2010 with the Developer, the O.P. No. 4, for purchasing a flat of 663 sq. ft. area together with more or less 15% super built-up area and undivided proportionate area of land and common area at a consideration of Rs.10,75,000/- in the first floor of a proposed multistoried building situated at No. 149 + 151, G. T. Road, Salkia, P.O. M. P. Ghora, District Howrah.
The Complainants, accordingly, paid the entire amount except Rs.25,000/-, towards the consideration to the O.P. No. 4 but in spite of that the O.Ps did not pay any initiative to execute and register the Deed of Conveyance although the Complainants approached and requested the O.Ps on several occasions for the same. Hence, the case. The Complainant prayed for directions upon the O.Ps to execute and register the Deed of Conveyance in respect of the said flat in favour of them as per terms of the agreement for sale and to pay Rs.1,00,000/- towards compensation and Rs.50,000/- towards litigation costs.
The O.P. landowners appeared and contested the case denying and disputing all materials allegations stating inter alia, that they were unaware of the fact whether the Complainants entered into an agreement for sale for purchasing a flat of a area about 663 sq. ft. together with 15% super built-up area along with undivided proportionate share of land at a consideration of Rs.10,75,000/- out of which Rs.10,50,000/- has been paid by Complainant No. 1 in instalments in favour of the O.P. No. 4 and balance amount of Rs.25,000/- has not been paid. The O.P. No. 1 specifically stated that an agreement for development was executed by and between the landowners and the developers and, accordingly, the power of attorney was also executed in favour of the developers i.e. the O.P. Nos. 3 & 4, but subsequently on 15.06.2007 the same was revoked. Therefore, the O.P. No. 4 had no right to enter into the agreement for sale on 22.05.2010 with the intending purchasers i.e. the Complainants.
Knowing fully well the above-stated fact the Complainants entered into the agreement for sale with the O.P. No. 4 and, therefore, the O.P. Nos. 1 & 2 are in no way liable to execute and register the Deed of Conveyance in favour of the Complainants in respect of the said flat. Accordingly, the O.P. No. 1 prayed for dismissal of the case.
In course of argument Ld. Advocate for the Appellant has submitted that the Appellant has no liability to execute and register the Deed of Conveyance in terms of the Agreement for Sale since there is no signature of the landowners in the Agreement for Sale. The said agreement has been executed by and between the intending purchasers and the developer. In support of his contention Ld. Advocate for the Appellant referred a letter dated Nil to one Shanti Ranjan Dey, one of the developers from the Complainant i.e. the intending purchasers requesting him to execute the Deed of Conveyance after receiving the balance amount of consideration.
Therefore, as the Ld. Advocate for the Appellant has submitted that the Appellant is not bound by the terms and condition of the said agreement since he has no involvement with the same. Ld. Advocate for the Appellant has specifically submitted that the Power of Attorney was revoked on 15.06.2007, and, therefore, the developers cannot act on behalf of the landowners afterwards. On the date of Agreement for Sale i.e. 22.05.2010 the developer had no power to enter into the agreement. Further, no allegation was made against the landowners in the petition of complaint.
Ld. Advocate for the Respondents has submitted that there is no need to put the signature in the Agreement for Sale by the landowners since the developers were empowered to execute the Agreement for Sale by virtue of the Power of Attorney executed by and between the landowners and the developers. Ld. Advocate for the Respondents has further submitted that the Power of Attorney is still in force since clause 23 of the Power of Attorney provides that the same is irrevocable till construction and also till completion of sale of the developers allocated portion. Ld. Advocate for the Respondents has specifically submitted that Section 202 of the Contract Act is attracted in the instant case. In support of his contention he filed a decision of Honble Supreme Court in SLP(C) Nos. 21108-21110 of 2007 & SLP(C) No. D33349 of 2007 (Shanti Budhiya Vesta Patel & Ors. vs. Nirmala Jayprakash Tiwari & Ors) and another decision of Honble High Court, Calcutta reported in 2010 (2) ICC 40 Smt. Shamali Das vs. Swadesh Ghosh & Ors. Ld. Advocate for the Respondent has further submitted that since the owners have the title of the said property they are bound to execute the Deed of Conveyance.
In reply, Ld. Advocate for the Appellant has submitted that the Power of Attorney is revocable and in support of his contention filed the decisions reported in AIR 1990 Supreme Court 673 [Southern Roadways Ltd., Madurai vs. S. M. Krishnan] and AIR 1953 Supreme Court 140 [Turner Morrison and Co. Ltd. vs. Commr. Of Income Tax, West Bengal].
On perusal the documents it appears that clause 23 of the general Power of Attorney dated 18.07.2003 is as follows : That the Power of Attorney shall remain in force and/or irrevocable till completion of construction of the proposed multi-storied building as per agreement dated 18.07.2003and also till completion of sale of the agreed share of the promoters/attorneys. Needless to say that the Power of Attorney executed by the landowners in favour of the developers is irrevocable, and, therefore, the revocation of the Power of Attorney is inoperative.
It is evident from the record that interest created in favour of the developer i.e. the agent of the landowners is irrevocable and it is within the purview of Section 202 of the Contract Act.
Therefore, we find there is no merit in the instant appeal and we have no reason to interfere with the findings of the Ld. District Forum.
In the result, the appeal fails.
Hence, ordered that the appeal is dismissed on contest but without any order as to cost. The impugned judgement is affirmed.
MEMBER PRESIDENT