DISTRICT CONSUMER DISPUTES REDRESSAL
FORUM
SOUTH 24 – PARGANAS , AMANTRAN
BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO.
_70_ OF ___2016
DATE OF FILING : 14.7.2016
DATE OF PASSING JUDGEMENT:
12/04/2018_
Present : President
: Ananta Kumar Kapri
Member(s)
: Subrata Sarker & Jhunu Prasad
COMPLAINANT
: 1. Souvik Ghosh, son of
Debaprasad Ghosh
2. Jayita Ghosh, wife of Souvik
Ghosh
Both are residing at M.N. Roy Road,
Barendra Para, P.O Rajpur, P.S Sonarpur, Kolkata – 149 .
VERSUS -
O.P/O.Ps : 1. Mr. Subhasis
Mandal, son of Sri Mahadev Mandal of B1/5,002, Prantik, Peerless Housing
Society, Sonarpur, Kolkata – 150.
2.
Karunamoy Nath, Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O
Rajpur, P.S Sonarpur, Kolkata – 149.
3. Prabir
Kumar Nath at Rajpur Sawraler Bagan, Jugipara Road, P.O Rajpur, P.S Sonarpur,
Kolkata – 149.
4. Ganesh Chandra
Nath, C/o late Durgadas Mitra of Baikunthapur, Vivekananda Road, P.O Rajpur,
P.S Sonarpur, Kolkata- 149.
5. Dinesh Chandra Nath,
Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O Rajpur, P.S Sonarpur,
Kolkata – 149.
6. Kamalesh Nath, Jadav
Sarkar Road, Baikunthapur near Samabay Bhaban, P.O Rajpur, P.S Sonarpur,
Kolkata – 149.
7. Samarash Nath, C/o late
Durgadas Mitra of Jadav Sarkar Road, Baikunthapur near Samabay Bhaban, P.O
Rajpur, P.S Sonarpur, Kolkata – 149.
_______________________________________________________________________
J U D G
M E N T
Sri Ananta Kumar Kapri, President
The summation
and summarization of the facts leading to the filing of the instant case by the
complainants is that O.P-1 is a developer and O.P nos. 2 to 7 are the
land owners. Initially there was a development agreement dated 14.9.2011 between
one Mithun Mistry and O.P nos. 2 to 7. General Power of Attorney was also
executed between them on that day. An agreement for sale of a self
contained residential flat as succinctly described in the schedule of the
complaint was also executed between the complainants and Mithun Mistry and O.P
nos. 2 to 7 on 21.9.2012 and thereby the said Mithun Mistry agreed to sell a
self contained flat to the complainants for a total consideration price of
Rs.17,75,000/-. Complainants paid Rs.6,50,000/- to Mithun Mistry. But
Mithun Mistry could not complete the construction within the stipulated time
and, therefore, O.P nos. 2 to 7 cancelled the power of attorney of him on
31.10.2014. Thereafter Mithun Mistry assigned his liability to the present
O.P-1 by deed of assignment dated 2.10.2014. O.P nos. 2 to 7 also made a
development agreement afresh with O.P-1 on 30.10.2014.An agreement for sale
dated 19.3.2015 was also executed by and between the complainants and O.P
nos. 1 to 7. The complainants paid Rs.40,000/-to the O.P-1. O.P-1 and O.P
nos. 2 to 7 have not delivered the possession of the flat to the complainants ;
they have not also registered the deed of conveyance in their favour and,
therefore, the complainants have approached the Forum by filing the instant case
,praying for possession of the flat , registration of sale deed and payment of
compensation etc. Hence, this case.
Written
statement is filed by the O.P-1 ,wherein it is contended inter alia that sale
agreement dated 19.3.2015 was executed by him in favour of the complainants.
According to him, he has taken over the liability of development of the land
from Mithun Mistry. Complainants are liable to pay Rs.11,25,000/- to him
by 31.5.2015 i.e the date of registration. Possession was agreed to be delivered
to the complainants after the registration of the deed. But, the complainants
have not made the aforesaid payment and that he has thereby made a default in
the payment of balance consideration price to O.P-1 and, therefore, the
developer i.e O.P-1is entitled to terminate the agreement and refund the
consideration price received after having deducted Rs.10,000/- therefrom. It is
the further case of the O.P-1 that the complainants have forcibly taken
possession of the flat and has been enjoying the same without making any
payment of the balance consideration price as agreed between the parties. The
complainants have not also taken any step for registration of the deed of
conveyance. Complainants, being a defaulter in terms of the agreement, are not
entitled to any relief , as goes the version of the developer i.e O.P-1. Power
of Attorney of him has been cancelled by O.P nos. 2 to 7 and thus he has been
rendered toothless and, therefore, he cannot effect registration of the deed of
conveyance in favour of the complainants by virtue of the agreement.
Written
statement is also filed by O.P nos. 2 to 7 ,whereby they have contended that
they have no knowledge of the agreement dated 19.3.2015 executed between
the complainants and the O.P-1. But they have seen the complainants occupying a
flat forcibly on the second floor of the case building. Mithun Mistry has
assigned his liability to O.P-1 and it is O.P-1 who will have to complete the
construction of the building. The execution of development agreement dated
30.10.2014 is admitted by them. They also admit that they have executed general
power of attorney dated 30.10.2014 with limited authority in favour of O.P-1.
O.P-1 has not acted in terms of the general power of attorney and, therefore,
the power of attorney has been cancelled by them . The complainants have taken
over possession of the flat by flexing muscle power. They never paid any
consideration price to them and they have for the first time come to know of
the sale agreement of the complainants on receiving legal notice dated
19.4.2016 . They have no deficiency in service and the case should be dismissed
in limini against them.
Upon the
averments of the parties following points are formulated for consideration.
POINT FOR DETERMINATION
Are the O.P nos. 2 to 7 guilty of
deficiency in service in respect of the sale agreement dated 19.3.2015 executed
in favour of the complainants?
Is the O.P-1 i.e the developer
guilty of deficiency in service in respect of sale agreement dated 19.3.2015
executed in favour of the complainants?
Are the complainants entitled to get
the relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence on affidavit has been led
by the complainants, O.P-1 and also by O.P nos. 2 to 7. Questionnaires, Replies
and the BNAs filed on behalf of the parties are kept in the record for
consideration.
DECISION WITH REASONS
Point no.1:-
Given the facts and
circumstances of the case ,it is found that the O.P nos. 2 to 7 are merely land
owners. They executed a development agreement in favour of Misthun Mistry, the
erstwhile developer and thereafter with O.P-1, the present developer. They also
executed a general power of attorney in favour of the said Mithun Mistry and
have also executed a fresh power of attorney in favour of the present developer
i.e O.P-1. They have authorized O.P-1 by the power of attorney to sell the flat
from his developer’s portion in accordance with his choice and also to receive
consideration price thereof.
On perusal of the development
agreement dated 30.10.2014 ( copy kept in the record) it is found that the land
owners have not promised any kind of services to the complainants. It is the
developer i.e O.P-1who has promised to render the services of different kinds
to the complainants. This being so, we feel no hesitation to say that the land
owners i.e O.P nos. 2 to 7 are not service providers and , therefore, the
instant case is not maintainable against them. Hence, this point is primarily
answered against the complainants.
Point nos. 2 and 3:-
O.P-1 is the developer. He executed
agreement for sale dated 19.3.2015 in favour of the complainants for a total
consideration price of Rs.17,75,000/- . Complainants have paid Rs.6,90,000/- to
him . Liability of contract has been assigned to O.p-1 by Mithun Mistry ,the
erstwhile developer. General Power of Attorney has been executed by O.P nos. 2
to 7 in favour of O.P-1. All these facts go undisputed.
The construction of the flat was
agreed to be completed within 12 months of the date of agreement dated
30.10.2014 vide clause 19 at page 10 of the agreement. The developer i.e O.p-1
has the right to register the deed of conveyance in favour of intending
purchasers of the flats and also to give possession to them and such right is
given to the developer by general power of attorney vide clause 21 at page 10
thereof. The possession of the flat was to be given to the complainant on or
before 31.5.2015 as per agreement for sale dated 19.3.2015 and the balance
consideration price was also tobe paid to O.P-1 by the complainants on or
before that date i.e 31.5.2015. It is true that the O.P-1 has not completed the
construction of the flat within that period i.e 12 months from the date of
agreement dated 30.10.2014. It is deficiency in service on the part of the
O.P-1. At the same time, the complainants should have paid the balance
consideration price to O.P-1 on or before 31.5.2015, but the complainants
have not paid the said sum to O.P-1 and this is also laches on the part of the
complainants. It has been submitted on behalf of the O.P-1 that his power of
attorney has been cancelled by the land owners and, therefore, he has been
rendered toothless by them and he cannot register any deed of conveyance now in
favour of the complainants . The land owners have also submitted that the power
of attorney of O.P-1 has been cancelled by them as the O.P-1 acted contrary to
the terms of power of attorney.
Now to see whether the land owners
can cancel the power of attorney of O.P-1.
It is not specifically mentioned
anywhere in the power of attorney that the said power of attorney may be
cancelled by the land owners at any point of time. By the said power of
attorney O.P-1 has been authorized to construct and develop the land and also
to sell the flats constructed by him , having received the consideration price
from the prospective buyers. So, it is found that the developer i.e O.P-1 has
acquired sufficient interest in the transaction made by the land owners in his
favour. When the developer has acquired sufficient interest in the transaction,
the land owners cannot revoke the power of attorney and the power of attorney
in a case of such kind becomes irrevocable. Section 202 of Contract Act lays
down that where the agent has himself interest in the property which forms
subject-matter of the agency, the agency cannot, in the absence of an express
contract, be terminated to the prejudice of such interest. There is no express
contract to the effect that the power of attorney may be terminated by the land
owners and regards being had to this aspect and the legal provision as pointed
out above, we feel not a least hesitation to say that the power of attorney
executed in favour of O.P-1 by O.P nos. 2 to 7 is an irrevocable one and that
can never be revoked by the O.P nos. 2 to 7. The said Power of Attorney was in
force and is still in force and by virtue of that power of attorney the
O.P-1 is still authorized to dispose of or sell the flats constructed by
him to the prospective purchasers. The developer i.e O.P-1 has still the lawful
authority by virtue of the said power of attorney to execute and register the
deed of conveyance in favour of the complainants with respect to the flats
agreed to be purchased by the complainants.
Now we like to address ourselves to
the question how much consideration price has been paid by the complainant
either to Mithun Mistry ,the erstwhile developer or to the O.P-1 i.e the
present developer. It is the version of the complainants that he has paid a
total sum of Rs.7,60,000/- to them including payment of Rs.40,000/- to O.P-1.
O.P-1 has stated that he has received Rs.40,000/- from the complainants and
that the complainants paid Rs.6,50,000/- to Mithun Mistry. So, according
to him, a total sum of Rs.6,90,000/- has been paid by the complainant as
consideration price. According to O.P-1 he has received Rs.6,90,000/- as
consideration price. But complainant has stated that a further payment of
Rs.70,000/- has been made to O.P-1 by him. In his reply to question of O.P-1,
the complainant has stated that he paid Rs.70,000/- to O.P-1 but he has no
money receipt to prove such payment. In absence of cogent evidence, i.e the
money receipt we fail to believe the version of the complainant that he paid
Rs.70,000/-to O.P-1 and regards being had to this aspect we do hold that the complainant
has paid Rs.6,90,000/-only to the developers as consideration price. He is
still under a liability to pay the balance consideration price i.e
Rs.10,85,000/- (Rs.17,75,000/- - Rs.6,90,000/-) till now to
O.P-1.
The complainants have already taken over
possession of the subject flat. It is the case of the O.Ps that complainants
have taken possession by flexing his muscle power with the help of antisocial
elements. The complainants have prayed for handing over peaceful vacant
possession of the flat to him as they have taken only symbolic possession
thereof. The nature of the prayer of the complainants regarding delivery of
possession of the subject flat indicates and indicates only that the version of
the O.Ps carries a good quantity of truth and it is established by their
version that the complainants have taken possession of the flat forcibly by
flexing muscle power. Be that as it may, the possession of the flat has been
secured by the complainants ,be it in fair way or foul way.
Now the question which arises for
consideration in the backdrop of above fact of the possession of the flat as
taken by the complainants is whether the complainants are entitled to get any
compensation from the developer i.e O.P-1. There is a legal maxim that,
“He who seeks equity must do equity”. A person who takes law in his own
hand is not entitled to claim equitable justice. The complainants have taken
forcible possession of the subject flat without making payment of balance
consideration money to O.P-1. They have taken the Law into their own hands and,
therefore, in equity they are deemed to be not entitled to get any compensation
from O.P-1. They are only entitled to get the registration of the deed of
conveyance on payment of balance consideration price of Rs.10,85,000/-.
The above points are thus answered
accordingly.
In the result, the case succeeds in
part.
Hence,
ORDERED
That the complaint case be and the
same is decreed in part on contest against the O.P-1 with cost of Rs.5000/- and
dismissed on contest against O.P nos. 2 to 7 without cost.
O.P-1 is directed to execute and
register the deed of conveyance in respect of the subject flat in favour of the
complainants, having received the balance consideration price of Rs.10,85,000/-
from the complainants within a month of this order and, in case complainants
fail to make payment/deposit of the balance consideration price as aforesaid
within the above period, the case shall stand automatically dismissed.
Let a free copy
of this order be given to the parties concerned at once.
President
I / We agree
Member
Member
Dictated and corrected by me
President
The judgement in separate sheet is
ready and is delivered in open Forum. As it is
ORDERED
That the complaint case be and the
same is decreed in part on contest against the O.P-1 with cost of Rs.5000/- and
dismissed on contest against O.P nos. 2 to 7 without cost.
O.P-1 is directed to execute and
register the deed of conveyance in respect of the subject flat in favour of the
complainants, having received the balance consideration price of Rs.10,85,000/-
from the complainants within a month of this order and, in case complainants
fail to make payment/deposit of the balance consideration price as aforesaid
within the above period, the case shall stand automatically dismissed.
Let a free copy
of this order be given to the parties concerned at once.
Member Member
President
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