Judgment : Dt.3.7.2017
This is a complaint made by one Sandeep Jain, son of Bachhraj Jain, residing at 228, School Road, P.S.-Bhowanipur, Kolkata-700 025 against – (1) Anju Mondal, OP No.1, (2) Sharmila Mondal, OP No.2, (3) Soumen Mondal, OP No.3, all are residing at 211, Motilal Gupta Road, P.S.- Haridevpur, Kolkata-700 082, (4) Sharmistha Mallick, wife of Mintu Mallick, OP No.4 and (5) Subir Chowdhury, proprietor of Neeleghway Construction of 151D/3, Santosh Roy Road, Kolkata-8, P.S.-Thakurpukur, OP No.5, praying for a direction upon the OPs to handover the handover the purchased registered flat and to pay compensation of Rs.5,00,000/- for the heavy loss suffered and litigation cost of Rs.1,00,000/-.
Facts in brief are that Complainant purchased a flat with proportionate share of land and common users of the said premises on the 2nd floor measuring about 522 sq.ft. at Motilal Gupta Road, in the year 2012 on the strength of a registered deed of conveyance. On the date of purchase, Complainant along with his wife OP No.5 went to take possession. But, OP No.1 to 4 illegally and unlawfully restrained the Complainant to take possession. Complainant went to the Police Station and lodged a complaint and prayed for taking appropriate action. Complainant requested OP No.5 to give possession of the registered purchased flat to him. But, since the date of purchase till date OP No.1 to 4 did not allow Complainant to take possession. Having no other alternative, Complainant filed this complaint.
OP No.1 to 4 filed written version and denied the allegations. They have stated that they are owners of the land. OP No.1 M/s LBS Construction, represented by Azizur Rahaman and Surojit Karmakar approached them to develop the land and erect a building on the said property. OP developer agreed to provide monthly rent during the construction period. OP No.1 to 4 has further stated that they executed power of attorney in favour of the OP No.5. Furthery they have stated that it is the developer has adopted unfair trade practice. The power of attorney in favour of OP No.5 was revoked by a registration deed of revocation on 16.2.2011. Though the power of attorney was revoked OP No.5 sold three flats to different persons. Thereafter, having no other alternative being deprived from getting owner’s allocation owners filed CC/182/12 in which the Ld. Forum was pleased to award Rs.5,000/- as cost and directed the OP to complete the owners’ allocation within six months. OP was also directed to pay compensation of Rs.1,00,000/-. But, OP No.5 did not comply the order of the Forum. So, Complainant has no locus standi to file this complaint. OP No.5 did not appear in the case and so the case is heard ex-parte against OP No.5.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint. Against this OP No.1-4 filed questionnaire. Against the questionnaire of OP, Complainant filed affidavit-in-reply. Similarly, OP No.1 to 4 filed evidence against which Complainant filed questionnaire to which OP filed affidavit-in-reply.
In the affidavit-in-chief, questionnaire and affidavit-in-reply both the parties have agitated their no contention as mentioned in the complaint petition and written version. At the outset, it is worthwhile to mention here that the deed of conveyance was made in favour of the Complainant on 12.6.2012, wherein it is clearly mentioned that Complainant received the possession of the flat. Surprisingly, Complainant has filed this complaint seeking possession and compensation after a lapse of about four years. As such, this complaint at the outset appears to be time barred.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for a direction upon the OPs to handover the purchased registered flat mentioned in the schedule and compensation of Rs.5,00,000/- and litigation cost of Rs.1,00,000/-.
As already stated when OP No.5 made registration deed in favour of the Complainant, he handedover the possession of the flat to the Complainant. Otherwise, registered deed could not have been made and this flat is mentioned in the registered deed. So far as the OP No.1 to 4 are concerned, they are owners of the land on which the building was constructed. Their contention is that they revoked the power of attorney in favour of OP No.5 sometime in 2009 and, as such, OP No.5 has no right to make the sale deed. Further contention is that OP No.5 in violation of the revocation sold three flats. As such, it is clear that dispute is between OP No.5, developer and OP No.1 to 4. However, that dispute did not affect the Complainant, because, registration deed was made in favour of the Complainant and Complainant took the possession. If, by any means, Complainant was dispossessed later on; we are afraid that this Forum has jurisdiction to restore possession. Moreover, Complainant is not a consumer for OP No.1 to 4 who are land lords and who did not enter into any agreement whatsoever with Complainant and did not put their signatures on the registered deed which was made in favour of the Complainant. As such, we find that Complainant is not entitled to the reliefs as prayed for.
Hence,
ordered
CC/416/2016 and the same is dismissed on contest.
