Judgment : Dt.28.11.2017

Shri S. K. Verma, President.

            This is a complaint made by one Sayan Kundu, son of Braja Dulal Kundu, residing at 1/38A, Vidyasagar Colony, P.O.-Netagi Nagar, P.S.-Patuli, Kolkata-700 047 against Kamal Das, son of Late Nakari Das, OP No.1, Ashis Das, son of late Bimal Das, both residing at 2/14A, Vidyasagar Colony, P.S.-Patuli, Kolkata-700 086, OP No.2 and Krishnendu Halder, son of Late Kartik Halder, presently residing at Swastika Apartment 4^th fl., Nazrul Park (Mondal Para), Mahamayatala, Kolkata-700 084, OP No.3, praying for direction upon the O.P.s to hand over possession of 2^nd schedule flat in favour of the Complainant within a specific period and further direction to complete the unfinished  work as mentioned in the 2^nd schedule and compensation of Rs.6,00,000/- and litigation cost of Rs.20,000/-.

            Facts in brief are that OP No.1 & 2 are the land owners in respect of land measuring more or less 1 katha, 0 chittkas along with straight four storied building under mouza- Raipur, J.L.No.33, C.S.Dag No.911(P), 912(P), 912(P), S.P. No.631/11 with the limits of KMC premises No.58, Vidyasagar Colony, P.S.-Patuli, Kolkata-700 086.

            OP No.1 & 2 entered into a development agreement with OP No3 developer on 5.1.2016 for construction of a multistoried building lying and situated at KMC Premises No.58. Landowners OP No1 & 2 executed a registered power of attorney on 5.1.2016 in favour of the developer and developer got the right of the sale of the flat constructed on the said plot of land. Complainant agreed to purchase from the developer OP No.3 a flat measuring about 572 sq.ft. super built up area lying on the 2^nd floor consisting of two bed rooms, 1 dining cum kitchen, 1 toilet, 1 verendah with fitting and fixtures installation areas together with all common rights and facilities available in the said premises. Thereafter OP No.1 & 2 as land owners and OP No.3 as developer sold and  transferred in favour of the Complainant that flat measuring 572 sq.ft. super built up area lying on the 2^nd floor, by virtue of a sale deed dt.4.5.2016. On several occasions Complainant requested to hand over the possession of the flat but, they did not oblige. So, Complainant filed this case.

            OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against it.

Decision with reasons

            Complainant filed affidavit-in-chief where he has reiterated the facts mentioned in the complaint.

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

          In this regard, it appears that the Development agreement took place on 5.1.2016 between OP No.1 & 2 being owners on the one hand and OP No.3 being developer on the other hand.

            Further, it appears that on the same day OP No.1 & 2 executed a power of attorney in favour of the OP No.3.

          Complainant has filed original sale deed from where it appears that the building was constructed by OPs and the flat, as agreed, was transferred to Complainant just after 4 months of the development agreement i.e. on 4.5.2016. This appears to be unbelievable.

            Moreover, it also appears that in para 5 of the complaint petition it is of 4 storied building but suddenly  it changed to 3 storied vide para 6 of the complaint petition.

            Accordingly, we are of the view that this Forum cannot pass an order in favour of the Complainant for handing over possession mentioned in 2^nd schedule of the sale deed. It is because common prudence suggests that within 4 months a four storied building cannot be constructed.

Hence,

ordered

              CC/345/2017 and the same is dismissed on contest.