Judgment : Dt.4.7.2017
This is a complaint made by Shyam Sundar Das, son of Late Kanailal Das, residing at 6, Nalapukur Lane, P.S.-Behala, Kolkata-700 034 against - (1) Deba Construction, OP No.1, (2) Smt. Nibha Das, OP No.2, (3) Sri Basanta Kumar Das, OP No.3, (4) Sri Panchanan Das, OP No.4, praying for direction – (a) upon the OP No.1 to handover the completed flat measuring 600 sq.ft. as per the agreement dt.7.7.2013, (b) upon the OP to execute and register the deed of conveyance of the flat and further direction upon the OP No.1 to open up the lock of the door of the alternative rented accommodation so that the Complainant can stay peacefully till the delivery of possession and compensation of Rs.5,00,000/- and litigation cost of Rs.1,00,000/-.
Facts in brief are that Complainant and Proforma OP are brothers who entered into an agreement for sale with OP No.1 M/s Deba Construction as a developer and OP No.2 & 3 who are land-owners. OP No.2 & 3 are the land-owners in respect of one land measuring 3 cottahs more or less in KMC Ward No.120 and also a land measuring about 2 cottahs 12 chittaks within the premises No.17, Nalapukur Lane and 238, Satyen Roy Road respectively.
OP No.2 & 3 entered into a development agreement with OP No.1 for raising a multi storied building on 25.6.2013. Said two premises were amalgamated and now known as 17, Nalapukur Lane. Complainant and Proforma OP No.4 entered into an agreement for sale with OP No.1 on 7.7.2013 where it was specifically mentioned that it is an agreement for sale and OP No.1 shall provide the Complainant and his brother two self contained flat which are on the 1st floor rear side measuring 600 sq.ft. and further OP No.1 will pay Rs.1,50,000/- to the Complainant. It was further agreed that OP No.1 shall arrange alternative accommodation till delivery of the said agreed 600 sq.ft. super built up area and OP No.1 shall bear the rent for such alternative accommodation. It was also agreed that OP No.1 shall handover the complete flat within 18/24 months. It was also agreed that developer shall bear the cost of registration charges of the said flat of the Complainant along with land-owners. Thereafter, OP No.1 handedover self contained flat measuring about 600 sq.ft. super built up area to the brother of the Complainant i.e. Proforma OP No.4 and he was enjoying possession of this allotted 600 sq.ft. flat. Complainant, in spite of repeated requests OP No.1 was not handed over possession of 600 sq.ft. in the newly constructed building. OP No.1 neither paid any heed to the requests of the Complainant nor even tried to get the said flat completed and got it registered. In stead, OP No.1 put the padlock in the alternative rented accommodation of the Complainant and has stopped to pay the rent and created pressure upon the Complainant. Complainant, at present, is residing temporarily at the relative’s house. OP No.1 is guilty of causing unfair trade practice and making unlawful gain by not handing over the said flat to the Complainant. Complainant sent notice to the OP No.1. But, OP No.1 did not handover the flat. So, Complainant filed this case.
OP No.2 & 3 filed written version. It is the contention of these OPs that one Sri Netai Chandra Adhikari was the paramount holder of all that piece and parcel of land measuring 2 cottahs 15 chittaks 20 sq.ft. under P.S.-Behala along with structure standing there on the said property by way of purchase from one Sri Brojendranath Bhandari on the strength of a conveyance deed dt.23.12.1953. After purchase of the said property Netai Chandra Adhikari possessed it and paid rent and taxes. Thereafter, said Netai Chandra Adhikari died intestate on 8.4.1974, leaving behind him his wife, Smt. Charubala Adhikari and his only daughter OP No.2. Smt. Charubala Adhikari and OP No.2 were in possession of the said property. Smt. Charubala Adhikari died intestate on 18.10.1982 leaving behind OP No.2 to inherit the said property. During such possession OP No.2 gifted the property to her son OP No.3 dt.8.8.2012, which was registered in the office of the DSR-II, South 24-Parganas, out of her love and affection to her son and daughter. OP No.3 accepted the gift by putting his signature. OP No.3 became the absolute owner in respect of the said property and was in possession of it. Thereafter, OP No.3 purchased all that the piece and parcel of land measuring 5 decimals from one Smt. Manada Bewa. Two properties were amalgamated and renumbered as premises No.17, Nalapukur Lane. OP No.3 being desirous of developing the said property made contact with the Developer Deba Construction OP No.1 and executed a registered development agreement and power of attorney. Accordingly, plan was sanctioned. Further, OP No.2 & 3 has asserted that OP No.2 being absolute owner, Complainant no locus standi in that land and this complaint is not maintainable. So, this OP has prayed for dismissal of this case.
OP No.1 has also separately filed written version and denied the allegations of the Complainant. He has further stated that Complainant has no cause of action. The agreement on the basis of which Complainant filed his said complaint is an agreement which is purely civil in nature and the dispute is not a consumer dispute. Complainant is not entitled to the reliefs. The development agreement executed between the parties had been duly complied. Except this OP No.1 has denied all the allegations made out by the Complainant and has prayed for dismissal of the complaint.
Decision with reasons
Complainant has filed affidavit-in-chief, against which OP No.1 has filed questionnaire to which OP No.1 has replied. OP No.2 & 3 has also put questionnaire to the Complainant, to which Complainant has filed reply. OP No.2 & 3 have filed evidence. OP No.1 has also filed evidence to which Complainant filed questionnaire to which OP has filed reply.
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 OP No.1 to handover one self contained flat, measuring 600 sq.ft. as per the agreement dt.7.7.2013. One Xerox copy of the agreement in the form of ‘Chuktipatra’ has been filed. In this agreement first parties are Sri Shyam Sundar Das and Panchanan Das son of Kanai Lal Das, second part is Deba Construction, developer represented by Debashis Bhowmick and 3rd party is Smt Niva Das and Basanta Kr. Das.
Further, this agreement reveals that second party shall construct a multi-storied building and handover two flats of 600 sq.ft. to the owners. However, this agreement does not make it clear that the developer agreed to handover flat to the first party. Furthermore, it appears that on perusal of the development agreement that it was entered into between Basanta Kr. Das and Deva Construction. So, Complainant failed to establish that he is owner of the premises for which he is claiming. There is no agreement for sale made between Complainant and developer OP No.1, which could have establish that Complainant is a consumer, because, he entered into agreement with developer for a flat and developer deprived him of that flat. After receiving the consideration money and did not register it in favour of the Complainant. Complainant has made an attempt to declare himself as owner and on that basis he filed this case claiming the registration of one flat in his favour and its registration.
From affidavit-in-chief, questionnaire and affidavit-in-reply filed by the respective parties, it is clear that Complainant is not a consumer by any stretch of imagination. It is because he failed to establish as owner and also that he entered into an agreement for sale with the developer. In the agreement through which Complainant claims with the literary word ‘Ubhaoy’, appears to be used for Niva Das and Basanta Kr. Das.
In the aforesaid facts and circumstances, there does not appear any merit in this complaint.
Hence,
ordered
CC/161/2016 and the same is dismissed on contest.
