This is a complaint made by one Smt. Dipa Ghosh, wife of Sri Bhupal Chandra Ghosh of A/55, Baghajatin, P.O.-Regent Estate, P.S.- Jadavpur, Kolkata-700 092, against (1) Kamal Mukherjee, OP No.1 and (2) Sri Shyamal Mukherjee, OP No.2, both sons of Late Kalyan Mukherjee of A/53, Baghajatin Colony, P.O.-Regent Estate, P.S. – Jadavpur, Kolkata-700 092, praying for a direction upon the OP to execute and register deed of conveyance in favour of the Complainant in respect of the flat described in the schedule.
Facts in brief are that OPs jointly deal in real estate and construction business. OPs were joint owners of the land measuring 3 Cottah, 6 chittaks sq.ft on 68/A/283, Raja Subodh Chandra Mullick Rd., P.S.-Jadavpur, Kolkata-700 092. Complainant entered into an agreement with OP on 15.4.2015 for sale of self-contained flat measuring about 882 sq.ft. on the first floor of the building named SANTI NIKETAN at a consideration of Rs.5,29,000/-. Complainant paid a sum of Rs.2,75,000/- by cheques and also by cash to the OP on the date of agreement for sale. Thereafter, Complainant also paid Rs.2,85,000/- by cheque. So, Cmplainant paid Rs.5,09,000/- to the OP. Complainant paid Rs.20,000/- for extra work. OP delivered the possession of the flat on 20.4.2006. Complainant requested for execution of deed. But, OP did not made the deed. So, Complainant filed this case.
OP filed written version and denied all the allegations of the complaint. Further, OPs have stated that they have already filed a civil suit being T.S. No.131/2015 before the Ld. 5th Court of Civil Judge (Senior Division), challenging the agreement for sale dated 15.4.2015 in the said suit. The OPs have claimed eviction of the Complainant from the property and alleged that the Complainant is a trespasser and he trespassed in the first floor of the building. Further, OPs have stated that the said flat has no connection with the agreement. The agreement for sale is related with an incomplete floor measuring 882 sq.ft. super built up area. OPs are the joint owners of the land in question on which the building was to be constructed. In such circumstances, OPs have prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Further, OPs have filed questionnaire against the affidavit-in-chief of the Complainant to which Complainant has replied. Similarly, OPs have filed evidence on affidavit to which Complainant has put questionnaire and OPs have filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs which he has prayed in the complaint petition.
On perusal of the agreement for sale which is basis of this complaint, it appears that it was entered into agreement on 15.4.2005 between Dipa Ghosh and Kamal Mukherjee and Sri Shyamal Mukherjee. Xerox copy of the agreement reveals that on each and every page this agreement has been signed by both the parties. The allegation of the Complainant is that the possession was handed over to the Complainant by the OPs. On the contrary, OPs submitted that the Complainant is in possession of another flat and in the flat he has mentioned in the agreement for sale.
Further, this agreement reveals that OPs received Rs.2,75,000/- and thereafter some amount as mentioned in the Xerox copy of the agreement.
OPs have taken a plea that Complainant is a trespasser and for that the civil suit is pending.
Now, the question arises as to when the agreement was entered into in 2005 and the possession was handed over in 2006 as per Complainant’s allegation what prevented Complainant not to take step before March, 2015 when Complainant filed this complaint. Complainant has filed document in the form of letters written by Ld. Advocate which is of January, 2015. This raises a doubt in the mind of this Forum regarding the claim of the Complainant and indirectly supports the claim of the OP. If there is a suit pending as stated in the written version we are of the view that since Complainant failed to establish the allegations made out in the complaint and there is no ground as to why Complainant delayed it for about 10 years. So, the Complainant is not entitled to the reliefs as prayed for in the complaint.
Hence,
ordered
RBT/CC/160/2016 is dismissed on contest.
