Sona Halder & Anr vs Sanjeev Jain & Anr

V.K. Jain, J

The appellants who are the owners of some land in Mordicai Lane in Kolkata entered into a development agreement with the respondent Chandan Kumar Roy, Proprietor of M/s Calcutta Waterproofing Co. and executed a Power of Attorney in his favour. He executed an agreement with the complainant, whereunder he was to construct and sell a residential flat admeasuring 1120 sq.ft. of super built up area on the 4th floor of the building which he was planning to construct on the land of the appellants. The sale price for the said flat was agreed at Rs.25 lakhs which was duly paid to the developer. A car parking space was also to be provided to him. The possession was handed over to the complainant on 22.12.2013 but the sale deed was not executed in his favour. Being aggrieved, he approached the concerned State Commission by way of a consumer complaint impleading the appellants as well as the developer as the opposite parties in the complaint.

In their written version the appellants pleaded that they were not in any manner connected with the dispute between the complainant and the developer. The developer did not appear before the State Commission and was proceeded ex-parte.

Vide impugned order dated 13.12.2017, the State Commission directed as under:-

"The Opposite Parties are jointly and severally directed to execute the Deed of Conveyance in respect of the flat and the car parking Space in favour of the complainant as per Agreement for Sale dated 05.10.2010 within 30 days from date otherwise the complainant shall have liberty to get the Deed executed through the machinery of this Commission. The OP No.3 is further directed to pay compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/- aggregating of Rs.1,10,000/- within 30 days from the date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation."

Being aggrieved from the order passed by the State Commission, the appellants are before this Commission. Since there is a delay of more than eight months in filing this appeal, IA/1871/2019 has been filed by them seeking condonation of delay in filing the said appeal.

The application seeking condonation of delay in filing the appeal, to the extent it is relevant, reads as under:-

That the appellants/petitioners could not produce on important documents, i.e. Deed of Revocation of Power of Attorney which deprived the developer No.3 (O.P. No.3) before the Hon'ble State Commission at the time of preparing and affidavit of reply to the complaint made by the complainant due to misplaced of the same which was not traceable at the time of hearing. The Ld. Advocate for the petitioner verbally submitted before the Hon'ble State Commission but he did not consider the submission of the Ld. Advocate for the petitioners and passed the order in C.C. Case No. 476 of 2015.

II. That later the petitioners after extensive search, found the said Deed of Revocation of Power of Attorney of Developer/O.P. No.3 in C.C. Case No. 476 of 2015. After finding the said document your petitioners contacted the Ld. Advocate in the second week of August, 2018 to file Revision Petition before the Hon'ble National Commission.

III. In view of the above mentioned circumstances, the Revision Petitioners could not file the appeal/revision within the limitation period for which the petitioners have no alternative but to move the commission to condone the delay in filing the appeal petition.

IV. That the Appellants/ Petitioners submit that the delay in filing the appeal Petition is not intentional or deliberate and the delay is due to circumstances beyond the control of the Appellants/ Petitioners.

It would thus be seen that only ground given by the appellants while seeking condonation of delay in filing the appeal is that they wanted to file the deed of revocation of Power of Attorney in favour of the developer and it took time for them to locate the said document. In my view, the ground given by the appellants while seeking condonation of delay in filing this appeal is not at all bonafide and the same does not justify the delay of more than eight months in filing the appeal. Admittedly, the copy of the impugned order was received by the appellants on 26.12.2017, as is alleged in para 2 of the application. If they wanted to file an additional document and the said document was not readily available with them, they could still have filed the appeal within the prescribed period of limitation and sought some time to file the document. That having not been done, it appears to me that the ground taken by them is not bonafide and genuine. Therefore, no justification for condoning the delay of more than eight months in filing the appeal is made out.

I have also heard the learned counsel for the appellants on the merits of the case and on merits also, I find no ground to interfere with the impugned order. It is not in dispute that a Power of Attorney was executed by the appellants in favour of the developer whereunder he was authorized to sell a residential flat. The said flat having been sold by him to the complainant, in exercise of the power available to him under the Power of Attorney and possession of the said flat also having been given after receiving the sale consideration, the complainant cannot be deprived of the title to the said flat by withholding the execution of the conveyance deed in his favour.

Though the appellants claim that they had revoked the Power of Attorney executed in favour of the developer, the Power of Attorney executed for consideration is not revocable in view of the provisions contained in Section 202 of the Contract Act, as the Power of Attorney executed by them in favour of the developer was for a consideration. Therefore, the appellants in my opinion must join the developer in executing this conveyance deed in favour of the complainant.

For the reasons stated hereinabove, the appeal as well as the accompanying application seeking condonation of delay in filing the appeal are dismissed with no order as to costs.