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Judgment
Sudip Ahluwalia, Member
This Revision Petition has been filed against the impugned Order dated 24.11.2016 passed by the Ld. State Consumer Disputes Redressal Commission, West Bengal in First Appeal No. FA/825/2014, vide which, the Appeal filed by the Complainant was allowed and the Order of the Ld. District Forum was modified with enhanced compensation.
The factual background in brief, is that the Complainant entered into an Agreement for Sale with the Opposite Parties on 26.11.2009, intending to purchase a flat at Premises No. 371B, Baghajatin Place, Kolkata, for a total consideration of Rs. 6,50,000/-. A sum of Rs. 1,00,000/- was paid as Ernest money, duly acknowledged by the Opposite Parties. According to the Agreement, possession of the flat was to be delivered within six months from the date of the Agreement, with execution and registration of the Deed of Conveyance. However, the Opposite Parties failed to deliver possession by the promised date of 25.05.2010 and also failed to execute the Deed of Conveyance. Despite a Legal Notice issued on 23.08.2010, the matter remained unresolved. Subsequently, aggrieved by the Opposite Parties' deficiency in service and unfair trade practices, the Complainant filed his complaint before the Ld. District Forum, Alipur.
The District Forum vide its Order dated 09.10.2012 allowed the complaint ex-parte against Opposite Party No. 1 and 2, and directed all the Opposite Parties to execute and register the deed of conveyance in favour of the Complainant. The Opposite Party No. 1 and 2 were directed to pay to the Complainant an amount of Rs. 2,40,000/- towards compensation. The Complainant then filed his Appeal before the Ld. State Commission, which vide the impugned Order dated 24.11.2016 allowed the same and modified the Order of the District Forum to the extent of additionally directing the Opposite Party No. 3 and 4 to pay to the Complainant Rs. 5,00,000/- towards compensation. Hence, the present Petition has been filed.
This Commission has heard both the Ld. Counsel for Petitioners and Respondents, and perused the material available on record.
The original Development Agreement was entered into between the Petitioners/ Owners and the Developers/Respondent Nos. 2 & 3 who were the original Opposite Party Nos. 1 & 2 in the Complaint Case on 5.8.2009. The Owners own allocation therein was of the entire Ist Floor of the Proposed Building apart from a store room measuring 50 sq.ft. on the Ground Floor of the said building, which would clearly go to indicate that any other part of the area on the Ground Floor would go to the Developers own share.
In pursuance of the aforesaid Development Agreement on the very next day (6.8.2009), the Petitioners executed a General Power of Attorney in favour of the Developers in Clause 8 of which the said Developers were authorised to sell any part of the property to any purchasers in the name of the Owners and on their behalf. Subsequently, the Sale Agreement in favour of the Complainant was executed by the Developers on 26..11.2009 in which one self-contained Flat measuring 662 sq.ft. super built area on the Ground Floor was agreed to be delivered to the purchaser/Complainant within 06 months from the said date. Clearly therefore, such proposed Flat measuring 662 sq. ft. had fallen in the share of the Developers, since the Owners own allocation on the said Floor was only for a store room measuring 50 sq.ft.
Consequently, the Complainant/Purchaser acquired his right in the said property in view of such Sale Agreement dated 26.11.2009 entered into between him and the Developers who, as already seen earlier, were authorised to enter into any such Agreement with other Purchasers and receive the consideration money thereof in the name of the Owners and on their behalf. Thus, the Sale Agreement between the Developers and the Purchasers also became binding on the Owners who had executed a regular General Power of Attorney in favour of the Developers on 6.8.2009.
Subsequent revocation of the General Power of Attorney, which happened on 31.5.2010, could therefore by no means be taken as any extinguishment of the right of the Purchaser which had accrued in the property in question. In this regard, we are supported by an earlier decision of this Commission in CC No. 3681 of 2017 in which it had been held that not only the Builders/Developers, but also the parties who entered into a Joint Development Agreement are jointly and severally liable, and any other arrangement between them is only inter se and not binding upon the Complainants. The relevant extracts from the aforesaid decision of the Division Bench are set out as below
15. The objection of the Opposite Party No.4 that the delay in construction is on account of the Opposite Party No.1 (Builder) as per the joint development agreement and that Opposite Party No.4 has no role in the matter and is not responsible jointly or severally is not convincing as in the Agreement to Sell all the Opposite Parties are being impleaded as Vendor and Opposite Party Nos.2 to 4 are represented through the General Power of Attorney Holder M/s ND Developers Pvt. Ltd. through its Managing Director M K K Durani. So we consider the Opposite Parties jointly and severally responsible. Reliance is placed on the Order of this Commission in Pooja Daryani & Anr. Vs. M/s Umang Realtech Pvt. Ltd. & Anr. decided on 6 th August, 2019 in which it was held that the Opposite Party being the Confirming Party in a Collaboration Agreement entered among the Opposite Parties, even when being a landowner is jointly and severally liable for any compensation. Any other arrangement is only inter se between the Opposite Parties and shall not bind the Complainants.
It has been argued by the Ld. Counsel for the Petitioners that such revocation of the General Power of Attorney was justified, since it had been done after the Sale Agreement between the Developers and the Complainant had expired on 25.5.2009, since such Agreement was only for a period of 06 months w.e.f. 26.11.2009. Such argument and submission, however, is fallacious and unacceptable. It is settled law that cause of action to seek relief for a service which has not been provided continues till the same is actually provided. Even if, the Developers had failed to perform their part in terms of the Sale Agreement within the stipulated period of 06 months, the Complainant/Purchaser was certainly within his right to seek the appropriate relief in terms of the said Agreement, and revocation of the Developers Authority by the land owners, could not come in the way of the Complainant in frustrating his legitimate claim to the flat promised in the Sale Agreement.
Consequently, this Commission is of the opinion that both the Ld. Fora below had correctly appreciated the matter in its true perspective, and held that both the Developers and Owners were jointly and severally liable to satisfy the claim of the Complainant. Further, the Ld. State Commission, having taken into account the impossibility of providing the disputed Flat to the Complainant on account of its having been already sold to a Third Party, correctly directed payment of compensation of an amount of Rs. 5,00,000/- to the Complainant/Respondent.
This Commission consequently finds no ground to interfere with the well-reasoned Order of the Ld. State Commission. The Revision Petition is, therefore, dismissed. Parties to bear their own costs.
Pending application(s), if any, also stand disposed off as having been rendered infructuous.