Date of filing: 08/01/2021

Date of Judgment: 28/02/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainants (1) Utpal Bhattacharya and (2) Mousumi Bhattacharya under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OPs hereinafter) namely (1) Ma Tara Construction (2) Sri Srimanta Dhara (3) Sri Dipak Das (4) Smt. Banani Sarkar (5) Smt. Sweta Ghosh Sarkar and (6) Smt. Swati Dutta alleging deficiency in service on the part of the opposite party nos. 1, 2 & 3.

Case of the complainant in short is that complainants along with proforma O.P. Nos. 4 to 6 being owners had entered into a development agreement dated 29/01/2018 with O.P. No. 1 being represented by its partners O.P. Nos. 2 & 3 to construct a three storied building at premises no. 2739 Vidyasagar Sarani, under P.S. Haridevpur. Building plan was sanctioned and obtained by the developer. As per development agreement land owners were allotted ground floor flat in the new building having super built-up area 550 sq. ft. with non-refundable money of Rs. 18,00,000/-. Rest portion in the newly constructed building was developers allocation. But on 15/03/2020 a Memorandum of Understanding was entered into between the developer, land owners and one Sandip Halder and Sonali Halder (purchasers of developers’ allocation). As per the said MOU proforma OP Nos. 4 to 6 being owners received Rs. 18,00,000/- from the developer and the ground floor flat measuring 550 sq. ft. super built-up area was to be delivered to the complainants by the developer. The said flat was to be delivered within 24/08/2020 but the developer failed and neglected to deliver the possession. Complainants subsequently on visiting the premises on 31/10/2020 found that the entrance door was not constructed as per the sanctioned building plan and it was completely walled and plastered. Since opposite party 1, 2 & 3 failed to deliver the possession of the flat on the ground floor as per the MOU dated 15/03/2020, present complaint has been filed by the complainants praying for directing opposite party 1, 2 & 3 to deliver the vacant possession of the ground floor flat in habitable condition, to issue the possession letter, to pay compensation of Rs. 6,00,000/- and litigation cost of Rs. 50,000/-

On perusal of the record it appears that O.P.s did not turn up in spite of service of the notice and thus case has been heard exparte.

So the only point requires determination is whether the complainants are entitled to the relief as prayed for?

DECISION WITH REASON

In order to support their claim that a development agreement was entered into between the parties, copy of the said development agreement dated 29/01/2018 has been filed wherefrom it appears that complainants along with proforma O.P. Nos. 4 to 6 as owners entered into an agreement with O.P. 1, 2 & 3 to construct three storied building. As per the said agreement owners allocation consists of one flat on the ground floor measuring 550 sq. ft. super built-up area and non-refundable sum of Rs. 18,00,000/- to be paid by the developers to the owners. However, it is admitted case of the complainants that subsequently a memorandum of understanding was executed wherein complainants were exclusively allotted ground floor flat. Copy of the said MOU dated 19.03.2020 has been filed by the complainants and it appears from the said MOU that complainants along with proforma O.P. Nos. 4 to 6 had entered into the said MOU with the O.P. Nos. 1, 2 & 3 and also one Sandip Halder and Sonali Hander were party. It further appears that it was settled between the parties by way of that MOU that non-refundable sum of Rs. 18,00,000/- would be paid to proforma O.P. Nos. 4 to 6 and it was agreed that the present complainants as owners shall get the ground floor flat measuring about 550 sq. ft.. The land owner 4 to 6 shall not claim any interest in the ground floor flat and similarly the present complainants being the land owners shall not claim any amount in the said non-refundable sum of Rs. 18,00,000/-.

So it is true that as per the settlement in the said MOU, present complainants were entitled to ground floor flat measuring 550 sq. ft. but the said MOU also indicates that the complainants agreed to sell the said flat in favour of purchaser number one named in the said MOU namely Sandip Halder. The specific recital in the MOU dated 19/03/2020 is reproduced hereunder:-

“All that ground floor measuring about 550 sq. ft. at the said premises being allocation of Sri Utpal Bhattacharya and Mousumi Bhattacharya have agreed to sale the said flat in favour of the purchaser number one which is mentioned in schedule hereunder written”.

The flat has been described in the schedule ‘B’ of the said MOU. So complainants have suppressed the facts that subsequent to the settlement arrived between the developers and owners by way of the said MOU, complainants agreed to sell the flat in the ground floor to the purchaser namely Sandip Halder who was also a party to the said MOU. So since the entire case of the complainants is based on the MOU dated 19.03.2020 and they have claimed the flat exclusively in the ground floor on the basis of the said MOU than on consideration of the fact that they agreed to sell it to purchaser named therein, there cannot be any direction to hand over the possession of flat to complainants as prayed by the complainants. Complainants cannot claim the possession of the flat and at the same time agreed to sell the same to a third party by the same document. The purchaser named in the said MOU namely Sandip Halder has not been made party in this case for the reason best known to the complainants. So as the complainants have not come with clean hands, for the reason as highlighted above, present complaint is liable to be dismissed.

Hence,

           ORDERED

CC/22/2021 is dismissed exparte.