Order-10.
Date-06/07/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that Sunil Kumar Ghosh, since deceased as owner of the case premises with the intention to develop the said property himself as contractor/developer by raising multistoried building constructed a new building as per plan being sanction plan no.15(B-6) dated 01-11-1991 sanctioned by KMC.
In the meantime Sunil Kumar Ghosh died leaving behind OPs1 to 4 as his legal heirs in respect of the said premises.
Fact remains that complainant has/had no own accommodation at Calcutta and so, she decided to purchase a self-contained flat by way of banking loan and other sources. Accordingly she was searching for a suitable self-contained flat within her budget in Entally locality and in the first week of April, 1994 complainant got such information that one flat shall be sold by Sunil Kumar Ghosh and Sunil Kumar Ghosh offered to sell the flat in proposed new building as constructed in the premises at 114//3, Ananda Palit Road, P.S. Entally, Kolkata – 700 014 and complainant accepted the said offer for her own accommodation on the first floor on the said premises and entered into two separate agreement with Sunil Kumar Ghosh since deceased the predecessor in interest of the OPs 1 to 4 on 16-04-1994 to purchase the self-contained flat measuring more or less 650 sq. ft. area on the south west corner of the first floor situated at 114//3, Ananda Palit Road, P.S. Entally, Kolkata – 700 014 for a total consideration of Rs.4,80,000/- and in terms of agreement complainant paid Rs.3,65,000/- in cash and cheques to Sunil Kumar Ghosh, predecessor of the OPs on different dates and Sunil Kumar Ghosh issued proper receipt against such payment.
On completion of the said new building the owner cum developer handed over peaceful khas possession of the said flat to the complainant without possession letter but after taking peaceful khas possession of the said flat an actual measurement was taken by Architect and Surveyor and it was found that the measurement of the flat is 500 sq. ft instead of 650 sq. ft which was within the knowledge of deceased Sunil Kumar Ghosh, owner cum developer. It is pertinent to mention here that as per agreement for sale dated 16-04-1994 the complainant is ready and willing to pay the balance consideration of Rs.1,15,000/- to the OPs at the time of registration of deed of conveyance in favour of the complainant. After several reminders and requests made to the said owner cum developer Sunil Kumar Ghosh by receiving the said balance amount to execute and register the deed of conveyance but Sunil Kumar Ghosh neglected to register the Deed of Conveyance taking several pleas and finding no other alternative complainant served legal notice dated 27-04-2000 followed by another reminder dated 28-05-2000 upon Sunil Kumar Ghosh but on receipt of the said legal notice he assured the complainant that he shall execute and register deed of conveyance in favour of the complainant in respect of the said flat but unfortunately, Sunil Kumar Ghosh died leaving behind his legal heirs, now the OPs1 to 4.
On the death of Sunil Kumar Ghosh complainant on several occasions requested all the OPs to execute and register the Deed of Conveyance on acceptance of balance consideration but the OPs did not turn up to register the said deed of conveyance and ultimately as per terms of the agreement dated 16-04-1994 the owners are under obligation to execute and register the deed of conveyance in favour of the complainant but as per agreement it is their legal liability to execute and till execution the cause of action shall continue but fact remains when complainant asked the present OPs to execute the sale deed they demanded further huge consideration and finding no other alternative complainant sent further notice but that notices returned with remarks “not claimed” and ultimately complainant finding no other alternative for negligent and deficient manner of service on the part of the OP and for not executing the sale deed she filed this complaint praying for redressal and for compensation etc.
Fact remains notices were duly served upon all the OPs i.e. Ira Ghosh, Susanta Ghosh, Rajat Ghosh and Papiya Ghosh by registered post with A/D and internet result supports that fact but fact remains in this case OPs did not turn up to contest case for which the case is heard in ex parte form finally.
Decision with Reasons
On proper assessment of the complaint including the written version and further considering the complaint and the evidence of the complainant including the document that is the agreement to sale dated 16-04-1994 it is found that by that agreement practically owner sold away the proportionate share of the land unto and to the intending purchaser (complainant) who will construct her own flat at her own cost at the building to be constructed upon the said land according to the building plan sanctioned by the KMC and the purchaser offered the vendor to purchase the proportionate share of the said land as she intended to construct a flat of 650 sq. ft. area more or less on the south-east side of the first floor of the building to be constructed on the said land.
Further vendor agreed to sell and purchaser agrees to purchase the proportionate share of the land in respect of the said flat at a consideration of Rs.1,50,000/- only.
As per agreement vendor declared that he has full right, absolute authority, good marketable title and power to sell, covey transfer assign the proportionate share of the said land unto and in favour of the present purchaser and vendor shall within the reasonable time after the completion of construction of the building in the said land arranged to secure the clearance and/or permission from the authority or authorities to sell and shall sell the proportionate share of the said land unto and in favour of the purchaser hereto by executing and registering the required deed of conveyance at the cost and expenses of the purchaser.
If the content of the contract or the agreement upon which the complainant relied and filed this complaint, we are convinced to hold that there was no agreement to sell of flat. There was no agreement in between the complainant and Sunil Kumar Ghosh or his legal heirs in respect of selling any flat but agreement was in respect of selling proportionate share of land and or the land or floor of the land for construction of the said flat on the land of the landowner by the purchaser (complainant) at her own cost. When that is that fact then it is clear that complainant is or was not a consumer under the OP Sunil Kumar Ghosh and on his death his legal heirs, the present OPs and at the same time it is not an agreement related to any housing construction. Another factor is that all the clauses of the agreement justify that it is an agreement to sell the proportionate share of the land in dispute not in respect of any flat when that is the fact then it is clear that the present complainant has failed to prove that Sunil Kumar Ghosh or on his death his legal heirs the present OPs intended to sell any flat out of their construction. For which it is not a dispute in respect of the definition ”Housing Construction”. Might be on the basis of the agreement complainant may file a suit for Specific Relief Act for implementation of the said agreement but under any circumstances, the present agreement to sale dated – 16-04-1994 does not reflect that there was any contract for rendering any service by the OPs or their father Sunil Kumar Ghosh for which the present complaint is not maintainable.
In the result, the complaint fails on the ground that this complaint is not a consumer under the OPs and the dispute is not a consumer dispute.
Hence,
Ordered
That the case be and the same is dismissed ex parte against the OPs but without any cost.
