Judgment dated 01-07-2016

            This is a complaint made by Mehdi Hassan Mollah, Mrs. Koyeli Kar Mollah against Shri Basudev Dutta, Shri Amar Das, Smt. Susama Chakraborty, Shri Tapan Kumar Ghosh and Arup Mukherjee praying for directing the OPs to complete the building in terms of the development agreement also directing OPs not to create obstruction and disturbances in the peaceful possession of the Complainants in the schedule property and also directing OPs not to create obstruction and disturbances at the time of their ingress and egress of the Complainants from the main entrance of the building and to pay compensation of Rs.10,00,000/- for unfair trade practice and Rs.3,00,000/- for mental pain and agony, Rs.2,00,000/- for unnecessary harassment and Rs.1,00,000/- as litigation cost.

          Facts in brief are that OP No.1 is the absolute owner mentioned in the first schedule of complaint petition. OP No.2 is the developer. They entered into development agreement for development of 1297 Sq. ft. located at P.S. Jadavpur mentioned in the first schedule.

            Complainant in urgent need of accommodation purchased a flat measuring 790 Sq. ft. with the undivided proportionate share from the developer. Complainants are entitled to get common rights and facilities as mentioned in third schedule. Complainants are in possession of the said flat since the purchase. Building has not been completed by the developer. OPs are not allowing the Complainant to use and occupy the common area and facilities available in the third schedule. OP in collusion with each other are trying to evict the Complainant. So, Complainant filed this complaint case.OP No.1A filed written version and denied all the allegations of the complaint. He has stated that this dispute between Complainant and OP No.2 and he has nothing to do with this. So, he has prayed for dismissal of this case. Other OPs did not file written version.

Decision with reasons

            Complainant has filed affidavit-in-chief wherein they have reiterated the facts mentioned in the complaint.OP No.1A and 1C filed questionnaire. Thereafter Complainant replied the questionnaire of the OP No.1A and 1C.

            Main point for determination is whether Complainants are entitled to the reliefs as prayed for.

            On perusal of the record it appears that copy of the purchase deed has been filed. It is the claim of Complainants that they are in possession of the property. First prayer of Complainants is direction upon OPs to complete the building in terms of the development agreement. In this regard it is clear that Complainants purchased the flat and they are residing in the said flat. So, it is unbelievable that Complainants purchased it without the flat being completed. Deed was registered on 5th March, 2016 and so it appears that the complaint was filed on 15/10/2015. The prayer is for a direction upon OPs to complete the building in terms of development agreement. Since the deed has been registered in favour of the Complainant and no specific prayer has been made by complainant of incomplete work, at this stage it cannot be said as to how the Complainants got aggrieved.             

            Second prayer is for a direction upon the OP not to create any disturbance in the peaceful enjoyment of the Complainants in the first schedule premises. No material is forthcoming in order to establish as to the nature of disturbances. Attached to this prayer, there is prayer no. C where Complainants have prayed for restraining OP in the free ingress and egress of the Complainants in the flat occupied by them.There is no material to show on which dates Complainants were disturbed. Other prayers relating to compensation of Rs.10,00, 000/- , Rs.3,00,000/- for mental pain and agony and Rs.2,00,000/- for harassment and Rs. 1,00,000/- for litigation cost.

            On perusal of the record it appears that there is no material as to how Complainants were harassed and what mental agony took place. As such we are of the view that Complainants did not file this complaint with a clean hand because they are in the possession of the premises and purchase deed is in their favour. The prayer for disturbance is required to be shown and established which is not done here. So, we find that Complainants are not entitled to any relief.

            Hence,

            O R D E R E D

            CC/06/2015 and the same is dismissed on contest against OP No.1A and ex-parte against others.