No. 18/25.11.2009.

HON’BLE JUSTICE SRI A. CHAKRABARTI, PRESIDENT.

Heard Mr. Prabir Basu, the Ld. Advocate for the Complainant and Mr. Prosenjit Basu, the Ld. Advocate for the O.P.

It appears that the dispute is regarding the claim of the Complainant for treating him as the allottee in place of original allottee Chhotalal Hari Ram by virtue of the nomination as indicated in the original application for allotment.  The fact of the nomination has not been disputed by the O.P.  But Mr. Prosenjit Basu, the Ld. Advocate for the O.P. raises three objections against the claim of the Complainant seeking execution and registration of the Deed of Conveyance and delivery of possession of the disputed flat to the Complainant.  First of such objection is that as the Complainant is entitled to claim as a nominee only, his claim cannot be allowed unless the legal heirs and legal representative of the original allottee indicate their consent.

In respect of this objection we find that under the Agreement the O.P. is liable to treat the present Complainant as allottee in place of the original allottee by reason of death of the original allottee as indicated in the Death Certificate annexed to the Complainant and not disputed by the O.P.  The contention of the O.P. as regards the claim of the heirs the law is settled that nominee is entitled to exercise right of the original allottee by virtue of the nomination and this is subject to the rights of the legal heirs of the original allottee.  But presently we are not required to enter into that question as law is also settled that nominee is entitled to exercise such right.  It is made clear in case of the claim by legal heirs of the original allottee the same will be against the nominee in respect of the disputed flat not against the present O.P.

The second objection raised by the Ld. Advocate for the O.P. against the claim of the Complainant is the Clause VI of the terms and conditions governing the said transaction as contended in printed brochure annexed to the complaint.  Sub-clause (a) of said Clause VI has been referred to by Mr. Basu contending that Complainant is required to become a Member of the Co-operative Housing Society of the owners of the dwelling units in the said complex and unless he becomes a Member of the said Co-operative Society, execution of Deed of transfer in favour of the Complainant will not be possible.  Mr. Prabir Basu, the Ld. Advocate for the Complainant contends that unless his client is declared allottee he is not in a position to deal with the Co-operative Housing Society making a claim of membership thereof.  In the circumstances it is held that the Complainant has been declared as allottee hereinabove and, therefore, the Complainant is now entitled to become a Member of the Co-operative Housing Society as agreed to.  The O.P. will be liable to execute the Deed of transfer and deliver the possession to the Complainant in respect of the said flat on completion of the aforesaid formalities.

Mr. Prosenjit Basu, appearing for the O.P. draws notice of this Bench that after allotment of the flat by letter dated 27.03.2001 the original allottee was communicated to and called upon to get the formalities completed.  Therefore, there can be claim in respect of maintenance charge for the common areas in the complex for the period starting from such communication and the Complainant is also to complete the formalities in respect thereof.

In view of above findings as no other objection has been raised by the O.P. against the claim of the Complainant we declare that the O.P. is liable to treat the Complainant as the allottee as an admitted nominee in place of deceased allottee and also to execute and register the Deed of Conveyance and deliver possession of the dwelling units concerned in favour of the Complainant on his completion of formalities with the Co-operative Society both in respect of past dues as is required in accordance with law.  On communication of the completion of the formalities by the Complainant the O.P. is directed to execute and register the Deed of Conveyance in favour of the Complainant within a period of two months from the date of such communication.  Complaint is allowed.  In view of the nature of the dispute involved we feel that no order is required in respect of compensation or litigation cost.