Samaresh Prasad Chowdhury, Presiding Member
Challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the judgement/final order dated 23.12.2013 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (in short, ‘Ld. District Forum’) in Consumer Complaint No. 331/2013. By the said order, the Ld. District Forum allowed the complaint ex-parte lodged by Respondent Nos. 1 & 2 under Section 12 of the Act with the direction upon the Opposite Parties (developer as well as the landowners) to execute and register the Deed of Conveyance in respect of the property in question as per Agreement in favour of the complainants within one month from date, failing which the complainants shall have liberty to put the order in execution in accordance with law.
The Respondent Nos. 1 & 2 herein being the Complainants lodged the complaint stating that on 16.08.2005 they entered into an Agreement for Sale with the developer to purchase one self-contained flat measuring about 706 sq. ft. on the 2nd floor along with other common areas and facilities annexed to undivided impartiable share or interest in the Premises No.58, Rajdanga Chakraborty Para, P.S.- Kasba, Kolkata – 700078, Dist- South 24 Parganas within the local limits of Kolkata Municipal Corporation at a total consideration of Rs.9,17,800/-. The complainants have stated that they have already paid Rs.6,75,000/- as part consideration amount towards the said total consideration amount. As per terms of the Agreement, the developer undertook to deliver possession of the finished flat in complete condition within 18 months from the date of obtaining sanctioned plan. On 08.09.2009 the complainants suddenly received a letter of cancellation of General Power of Attorney sent by an Advocate on behalf of landowner (OP No.2) stating that the Power of Attorney executed by the landowner in favour of developer has been cancelled. The complainants have alleged that on several occasions they have requested the OPs to execute the registered Deed of Conveyance but all their requests including correspondences went in vain. Hence, the respondent nos. 1 & 2 approached the Ld. District Forum with prayer for several reliefs, viz. – (a) a direction upon the OPs to execute and register the Deed of Conveyance in respect of the flat in question; (b) to pay Rs.2,00,000/- as compensation; (c) cost of the proceedings etc.
The Appellant No. 1(b) i.e. one of the partners of developer partnership firm after entered appearance by filing an application challenged the maintainability of the proceeding on the ground of territorial jurisdiction of the Ld. District Forum. The said application has been rejected by the Ld. District Forum and challenging the same, no revision petition has been preferred. After rejection of the said application, the developer did not contest the proceeding. The OP No.2/landowner did not appear before the Ld. District Forum to contest.
After assessing the materials on record including the evidence led by the parties, the Ld. District Forum by the impugned judgement/final order allowed the Complaint with the direction as indicated above. To assail the said order, the developer partnership firm has come up in this Commission with the present appeal.
Mr. Barun Prasad, Ld. Advocate for the Appellants has submitted that the Ld. District Forum has failed to consider that by a tripartite Agreement dated 05.12.2012 the respondent no.1/complainant already sold out his flat to a third party namely Mr. Ajitesh Kar due to paucity of fund and leave his possession over the said flat and the said third party has been residing in the said flat with the consent of respondent no.1/complainant but the respondent no.1/complainant intentionally suppressed the fact before the Ld. District Forum and as such the impugned order should not be sustained. Ld. Advocate for the appellants has also submitted that the Ld. District Forum has committed an error by waiving the respondent nos. 1 & 2/complainants to pay the balance consideration amount in lieu of compensation and costs.
Per contra, Mr. Prasanta Banerjee, Ld. Advocate for Respondent Nos. 1 & 2 has submitted that during the subsistence of an Agreement for Sale, another Agreement for Sale cannot be executed unless the transaction of the earlier Agreement for Sale is concluded. Therefore, the impugned order should not be interfered with.
We have considered the rival contention of the parties and scrutinised the materials on record.
Undisputedly, OP No.2 Smt. Jayanti Rani Dey, since deceased was the owner of a piece of land measuring about 3 cottahs 3 chittaks and the standing structure thereon lying and situated at Premises No.58, Rajdanga Chakraborty Para, P.S.- Kasba, Kolkata – 700078, Dist- South 24 Parganas within the local limits of Kolkata Municipal Corporation. On 28.03.2013 the landowner had entered into an agreement for development with a partnership construction firm represented by OP Nos. 1(a) & 1(b) for raising construction of a G+4 -storied building over the said property. In order to facilitate such construction, the landowner also executed a registered Power of Attorney in favour of the developer on 03.04.2003.
By dint of the authority conferred upon them, the developer had entered into an Agreement for Sale with the respondent nos. 1 & 2/complainants on 16.08.2005 to sell one self-contained flat measuring about 706 sq. ft. on the 2nd floor in the said newly constructed building at a total consideration of Rs.9,17,800/-. The complainants have already paid Rs.6,75,500/- as part consideration amount towards the said total consideration amount.
Clause 3 of the Agreement for Sale provides that the developer will complete the construction of the flat in a finished condition within a maximum of 18 months from the date of sanction of building plan. However, it is quite clear that the developer could not keep their promise and in this regard the requests and persuasions including letters went in vain. It simply indicates that the developer was deficient in rendering services to the intending purchasers as per terms of the Agreement.
It may be pertinent to record that during the pendency of the proceeding, original landowner passed away and on account of her death, the respondent nos. 4 to 8 stepped into the shoe of original landowner (respondent no.3). Similarly, one of the partners namely Goutam Chatterjee of M/s. Goutam Chatterjee & Sudip Ghosh (appellant no.2) has passed away but the legal heirs of the said Goutam, viz. – Smt. Mahuya Chatterjee (wife) and Ms. Bhagyashree Chatterjee (daughter) have not been substituted. For non-substitution of the legal heirs of Goutam, one of the partners of the partnership firm, there will not be any hindrance in executing the Sale Deed in favour of the respondent nos. 1 & 2. The Development Agreement dated 28.03.2013 still in existence and, therefore, the said Development Agreement is binding upon the parties or their legal heirs.
Now, the question comes as to letter of cancellation of General Power of Attorney by the landowner executed by her earlier in favour of developer. In fact, on 08.09.2009 the respondent nos. 1 & 2 received a letter of cancellation of General Power of Attorney sent by an Advocate on behalf of the landowner. The factual matrix of the case indicates that at the time of execution of Agreement for Sale by the developer in favour of intending purchasers on 16.08.2005, the Development Agreement between the landowner and the developer was in vogue and further the developer was authorised by landowner through registered General Power of Attorney to enter into an Agreement for Sale with the third party. Therefore, the so-called cancellation of Power of Attorney by the landowner cannot be a dent to the complainants’ case.
Evidently, on 05.12.2012 the landowner and the developer had entered into an Agreement for Sale with one Ajitesh Kar in which the respondent nos. 1 & 2/complainants were a confirming party. As per the Deed of Agreement, the landowner intended to sell the subject flat at a total consideration of Rs.20,50,000/-. Ld. Advocate for the appellant took a plea that when the respondent nos. 1 & 2 being confirming party entered into a Deed of Agreement and by virtue of the same, the said third party is in possession and suppressing this fact when the complaint has been lodged, the Ld. District Forum should have dismissed the complaint. It is true that a Deed of Agreement was executed in favour of a third party by the landowner as well as the developer in respect of the subject flat but the said Deed of Agreement is a subsequent agreement. Evidently, the landowner as well as developer agreed to sell the flat to the respondent nos. 1 & 2 by virtue of Agreement for Sale dated 16.08.2005. The transaction of the said Agreement for Sale has not yet been concluded. Therefore, prior to conclusion of Agreement for Sale, the landowner and the developer had no authority to enter into an another Agreement for Sale with any other third party. There is no document whatsoever to show that by virtue of that unregistered Deed of Agreement dated 05.12.2012 the third party is in possession of the subject flat or even if he is in possession without any Deed of Conveyance, such a possession is not a lawful one. In any case, the Deed of Agreement dated 05.12.2012 cannot be a ground to defeat the right of a consumer, more particularly when they have paid a bulk amount for having a roof over their head. Therefore, the submission made by the Ld. Advocate for the appellant does not appear to us forceful.
However, we are in agreement with the Ld. Advocate for the appellant that a Court/Forum has no authority to rewrite the terms of agreement. As per terms of the agreement, the respondent nos. 1 & 2 were under obligation to pay Rs.9,17,800/- as consideration amount and they have paid Rs.6,75,500/- and, therefore, the respondent nos. 1 & 2 are still to pay Rs.2,42,300/- in favour of the developer. The Ld. District Forum has exceeded its jurisdiction by holding that it would be just and proper if the OPs be directed to execute and register the Deed of Conveyance in lieu of cost and compensation.
Under the term of agreement, the respondent nos. 1 & 2 have to pay Rs.2,42,300/- in order to get the Deed executed in favour of them. It is true that the developer has shown lackadaisical approach in concluding the agreement and as such as there was deficiency on the part of them, the respondent nos. 1 & 2 are entitled to compensation in view of the provisions of Section 14(1) of the Act. Keeping in view the loss suffered by the respondent nos. 1 & 2 for a long period of more than a decade, we think a compensation of Rs.1,00,000/- in the facts and circumstances will meet the ends of justice. As the situation compelled the respondent nos. 1 and 2 to knock the door of the Ld. District Forum, they are entitled to litigation cost
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which we quantify at Rs.10,000/-. In view of the above, the impugned judgement/final order is hereby set aside and the appeal is disposed of with the following directions – i. The Appellants and Respondent Nos. 3 to 7/the Opposite Parties are directed to execute the Deed of Conveyance in respect of the property as per terms of Agreement for Sale dated 16.08.2005 in favour of Respondent No.1 within 60 (sixty) days subject to receipt of balance consideration amount of Rs.2,42,300/-; ii. The Appellants/OP Nos. 1(a) & 1(b) are directed to pay compensation of Rs.1,00,000/- in favour of Respondent Nos. 1 & 2/complainants towards harassment and mental agony; iii. The Appellants/OP Nos. 1(a) & 1(b) are directed to pay Rs.10,000/- to in favour of Respondent Nos. 1 & 2/complainants as costs of litigation; iv. The balance amount of Rs.1,32,000/- payable by Respondent Nos. 1 & 2/Complainants must be paid on the date of execution and registration of Deed of Conveyance. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information.