Judgment : Dt.11.9.2016

Shri S. K. Verma, President.

            This is a complaint made by one Arun Kumar Hati, son of Late Kamala Kanta Hati residing at 292/28, Kendua Main Road, P.S.-Patuli, Kolkata-700 084 against Krishnendu Halder, son of Late Kartick Halder, residing t G-89, Baghajatin Colony, P.S.-Patuli, Kolkata-700 086, OP No.1 and Gopal Saha, son of Late Gokul Chandra Saha, residing at 8, Ashutosh Pally, P.S.-Patuli, Kolkata-700 084, praying for a direction upon the O.P. to handover peaceful possession of the flat in question after completing it in all respect. Further, direction to obtain completion certificate from the municipality and direction to execute and register the appropriate deed of conveyance, to pay litigation cost of Rs.50,000/- and compensation of Rs.2,00,000/-.

            Facts in brief are that OP No.1 is a developer and service provider in connection with the housing construction. OP No.2 is the landlord of the land on which the construction was made. OP No.2, desiring to develop the land as described in schedule A, was looking for a developer and entered into a development agreement for development with the OP No.1 on 20.11.2012. OP No.2, landlord gave a general power of attorney in favour of the OP No.1. Complainant was searching a self contained flat and expressed desire to purchase a flat. So, Complainant entered into an agreement for sale dtd.20.2.2014 with OP No.1 in respect of the flat measuring 300 sq.ft. more or less super built up area on the top floor at East North side of the newly constructed building, consisting of one bed room, one dining and one kitchen, one toilet and one verandah. Complainant agreed to purchase that flat measuring about 300 sq.ft. super built up area on the top floor. OP started construction over the land. And, after getting the sanction plan offered the flat to the purchaser. As per the agreement for sale  the total consideration of the flat was fixed at Rs.5,70,000/- out of which Complainant paid a sum of Rs.4,20,000/-, at the time of signing the agreement. In terms of the agreement for sale, OP No.1 was to handover the proposed flat duly completed in all respect within 18 months from the date of execution of agreement for sale. Complainant had paid Rs.4,20,000/- and was willing to pay balance consideration money of Rs.1,20,000/- to developer, OP No.1. After execution of the agreement for sale and after taking more than 50% of the total consideration amount they have failed and neglected to handover flat to the Complainant. OP No.1 asked Complainant to pay Rs.10,00,000/- for the said flat. After receiving the more than 50% of the consideration amount he failed and neglected to deliver the said flat, which is deficiency in service. OP No.1 is trying to sell the flat. Finding no other alternative Complainant contacted his Advocate and issued a legal notice. Complainant also filed a complaint before the Executive Magistrate, Alipore. So, Complainant filed this case.

            OP No.2, Gopal Saha, filed written version and denied the allegations of the complaint. OP No.2 is the land-owner of the land. OP No.2 after becoming the absolute owner entered into a development agreement on 20.11.2012. OP No.2 being the land owner executed and registered a general power of attorney in favour of the Developer, OP No.1. OP No.1 being the developer started construction. But, OP No.2 found that the developer was not completing the flat and in such a situation OP No.2 was compelled to revoke the power of attorney on 20.11.2012 executing a deed of revocation and general power of attorney on 28.12.2015 and the  said deed of revocation was registered in the office of the ADSR, Alipore. The land-owner simultaneously cancelled the development agreement dt.20.11.2012. OP No.2 requested the OP No.1 to take back the consideration amount of Rs.50,000/-. But the OP No.1 did not pay any heed. OP No.2 has further stated that after cancellation of the development agreement dt.20.11.2012 and revocation of the power of attorney of the OP No.1 approached OP No.2 and asked the OP No.1 to trust him. OP No.2 has further stated that relying upon OP No.1 and after several meetings it was mutually decided and agreed between OP No.2 and OP No.1 that construction will be completed and the building would be made habitable. Thereafter, again agreement was executed on 19.7.2016. OP No.2 has further stated that since the date of 2nd development agreement the developer did not visit the premises till date and developer neither started the left-over construction of the land owners allocation. OP No.2 further sent a legal notice on 22.12.2016 requesting him to comply the terms and conditions. But, unfortunately, OP No.1 did not comply. OP No.2 knew that OP No.1 is trying to execute and register the deed of sale in favour of the intending purchaser and also trying to deliver the physical possession of those flats. Finding no other alternative the OP No.2 lodged a general diary before the Patuli P.S. and also made a complaint under section 144(2) of the Criminal Procedure Code. Complainant has filed this complaint on the basis of development agreement dt. 20.11.2012 to harass OP No.2 despite knowing the fact that OP No.2 has cancelled the development agreement dt.20.11.2012 and also cancelled the general power of attorney on 28.12.2015. OP No.2 and OP No.1 entered into a fresh and new registered development agreement on 19.7.2016 and OP No.2 executed a registered power of attorney on that day. Further, OP No.2 has stated that developer did act contrary to the terms and conditions of the agreement. So, OP No.2 has prayed for dismissal of this case.

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

Decision with reasons

            Complainant filed affidavit-in-chief against which OP No.2 did not file questionnaire. OP No.2 also did not file evidence. Thereafter the case was argued.

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

            On perusal of the prayer portion, it appears that Complainant has prayed for handing over the peaceful possession of the flat in question and its registration. There is a Xerox copy of agreement for sale, filed on behalf of the Complainant, which reveals that it has been signed by Gopal Saha, OP No.2 and Arun Kumar Hati, Complainant. Further, it appears that this agreement was entered into on 20.2.2014. It is also mentioned here that developer, OP No.2 received Rs.1,00,000/- from Complainant Arun Kumar Hati out of consideration money of Rs.5,70,000/-

            In addition, Complainant has filed Xerox copy of two development agreements as mentioned in written version of OP No.2, two power of attorney, one revocation and cancellation, of development agreement and power of attorney. About all these OP No.2 has mentioned in his written version. So, it appears there was a development agreement between OP No.1 and OP No.2. Complainant paid Rs.1,00,000/- as advance amount to developer. Developer has not contested this case.

            Complainant has prayed for handing over the possession. There is no document filed on behalf of the Complainant to establish that he has paid Rs.4,20,000/- out of Rs.5,70,000/-. So, it appears that though OP No.1 has not contested this case, but he cannot be directed to hand over the possession of the flat simply after receiving Rs.1,00,000/-. Accordingly, the direction for registering the flat in favour of the Complainant cannot be made

            Hence,

ordered

            CC/516/2016 and the same is dismissed ex-parte against OP No.1 and on contest against OP No.2.