Order No.2                         Dt. 16/08/2022

Ld. Advocate for the complainant is present.

Record is taken up for admission hearing.  Heard in part.

Ld. Advocate for the complainant prays for pass over for answering the queries made by the Commission.

It is now 11.10 a.m.  Put up the case record later.

Member                                             Member                                             President

Later,

Continued…….. Order No.2

Record is again put up.  It is now 03.25 p.m.

Neither the complainant nor his Ld. Advocate is found present on repeated calls.

The instant case has been filed on 27.07.2022.

Perused and considered the complaint and photocopy of the documents annexed thereto.

According to the complainant, the opposite party is a company registered under the Companies Act 1956, having its registered office at the address given in cause title of the complaint. The suit property belongs to Trust Estate of “Shib Krishna Debutter Estate”.  The suit building was very old and in devastating condition. So, the Trustee of the Debutter property approached the Hon’ble High court for its demolition and construction of new building thereon. The Hon’ble High Court  vide order dated 10.12.2008 passed in O.S.C.S. No. 1 of 2008 pleased to allow the prayer and directed as follows

“………… the plaintiff Ashim Chandra Daw the present Trustee and Shabait of the Trust Estate of ‘Shib Krishna Debutter Estate’ and senior most male member of Daw family in age do develop and construct a new building at premises no. 12, Jatindra Mohan Avenue, Kolkata-700006 (hereinafter referred to as the said property) by applointing M/S D.K.B. Nirman Pvt. Ltd at 145/A/1, South Sinthi Road, Kolkata-700050 hereinafter referred to as the said Developer.  It was further directed by the Hon’ble High Court it its order “…….. and thereby the plaintiff Ashim Chandra Daw is the present Trustee and Shebait of ‘Shib Krishna Debutter Estate’ shall sign the said development agreement and execute and register the sale deeds is terms thereof in favour of the intending buyers of the flats/units/spaces of the said new building to be constructed by the said developer in the said property and shall confer title upon them and the said buyers would be the absolute owners of their respective flats/units/spaces after such purchase’. 

Thereafter, the present complainant entered into an agreement dated 22.05.2013 with the developer D.K.B. Nirman Pvt. Ltd., the opposite party herein for purchasing a flat mention in the scheduled of the agreement.   According to the complainant, in terms of the such agreement, the complainant has paid the consideration amount of the flat to the opposite party.  In the mean time, the Trustee and Shabait Ashim Chandra Daw died in May 2021.  Though the complainant requested the opposite party to execute the deed of conveyance in his favour in respect of the said flat, but in vain.  The opposite party by a letter addressed to the complainant expressed their inability to execute the deed of conveyance as the Trustee and Shabait Ashim Chandra Daw has expired in the month of May, 2021 and as no Shabait and Trustee has been appointed of the Trust Estate ‘Shib Krishna Debutter Estate’.

It is apparent on the face of the record that the suit property belongs to Trust Estate ‘Shib Krishna Debutter Estate’ and by virtue of order passed by Hon’ble High Court  vide order dated 10.12.2008 passed in O.S.C.S. No. 1 of 2008 the opposite party herein has been appointed as developer to construct a building at the suit property.  Hon’ble High court has been pleased to direct in its order that the Trustee and Shabait Ashim Chandra Daw would execute a development agreement in favour of the opposite party herein and also execute and register the sale deed in terms thereof in favour of the intending buyers of the flats/units/spaces of the new building be construction by the said developer in the said property.  Neither the Trust Estate ‘Shib Krishna Debutter Estate’ nor any Trustee and shebait of ‘Shib Krishna Debutter Estate’ has been made party in this complaint case.

Moreover, I find Clause 19 of the agreement between the parties hereto i.e. Annexure C reveals that all dispute and the differences by and between parties hereto in any way relating to or connected with the premises and / or said unit and/or  the sale agreement and /or anything done in pursuance hereof shall be referred for adjudication to the arbitrator Sri Debabrata Banerjee, Advoate.

In our considered opinion that the Trust Estate ‘Shib Krishna Debutter Estate’ is necessary party to this case.  But complainant himself stated that the Trustee and Shabait upon whom the Hon’ble High Court  has given direction to execute the deed of conveyance to the intending purchasers has already died. In such circumstances, further direction from the Hon’ble High Court is required.

In the light of the observation made above, the instant case cannot be admitted at this stage.

Thus, the instant CC case is hereby dismissed as not admitted.