Judgment dated 25.5.2016

This is a complaint made by one Shri Tapash Burman son of Late Promode Burman residing at 140/8, Sarat Ghosh Garden Road, P.S. Garia against Makhan Lal Ghosh son of Late Motilal Ghosh residing at 3/8, Jadavgarh, P.S. Garfa  and Smt. Gitasree Dey, Shri Priyatosh Dey and Gopa Dey praying for direction upon OP for handing over possession of one flat situated at the ground floor together with undivided proportionate rights, title, interest and share by executing a registered Deed of Conveyance after receiving balance amount of Rs.1,65,000/- from the Complainant and a direction to pay compensation of Rs.3,00,000/- for mental agony and harassment and any relief which this Forum deems fit.

Facts in brief are that Complainant got acquainted with OP No.1 who stated that OP No.2 to 4 are joint owners of the property a piece of land measuring 1 Cottah 8 Chittaks. Paritosh Dey died intestate leaving behind his wife OP No.2 and his son OP No.3 and his daughter OP No.4. OP No.2 to 4 entered into an agreement on 28.11.2010 with OP No.1 for construction of a multistoried building on the land belonging to OP No.2 to 4.

Complainant agreed to purchase one flat situated on the ground floor of the said building on a total consideration money of Rs.3,50,000/- . On the date of execution of the said agreement for sale Complainant paid Rs.1,45,000/- to the OP No.1 on 4.4.2014. Complainant paid another Rs.40,000/- to OP No.1 and this way Complainant paid Rs.1,85,000/- to OP No.1. After receiving the money all the OP failed to deliver the flat. Complainant on several occasions requested OP that he is ready to hand over another Rs.1,65,000/- but OP refused to hand over the flat. On 4.12.2015 Complainant issued a legal notice. Complainant tried his level best to get the flat but of no use. So, Complainant filed this complaint.

On the basis of above facts complaint was admitted and notices were issued to the OPs. OP No. 2, 3 & 4 appeared and filed written version. Their contention is that OP No.1 was not given any registered power of attorney by OP No.2 to 4. They are not aware of the agreement for sale which Complainant entered into with OP No.1. OP No.2 to 4 did not receive any money and so they are not liable or responsible to hand over and deliver possession of the flat and executed the Deed of Conveyance. So OP No.2 to 4 have prayed for dismissal of the case.

OP No.1 did not appear. So the case was heard ex-parte against OP No.1.

Thereafter, Complainant left taking step and did not file affidavit-in-chief despite several opportunities

Decisions with reasons

Main point for determination whether on the basis of complaint and written version Complainant is entitled to any relief.

In the present case Complainant did not appear after the written version was filed by the OP No. 2 to 4. Complainant has also not filed affidavit-in-chief . As such it is clear that Complainant did not prosecute this case with the allegation which he brought in the complaint petition.

It is a settled law that first and foremost duty for proving the contents of the complaint is on Complainant. Only after Complainant discharges his obligation; onus of prove shift on the other side.

On perusal of Xerox copy of the agreement it appears that it has been signed by Shri Tapash Burman the Complainant and Makhan Lal Ghosh the OP. So any obligation arises, has to be of OP No.1. OP No.1 in this case has not made his appearance. Further, on perusal of a letter written by Makhan Lal Ghosh on 12.1.2015 to the Complainant reveals that the possession could not be handed over because a title suit No.112 is pending and building is incomplete for the lack of fund which is blocked by unauthorized persons. Further he has stated that he is ready to pay the refund of the amount which he has received with interest. As such since OP No.1 has not appeared and the case was heard ex-parte against him, justice requires that the money be refunded to the Complainant. But since Complainant failed to prove the allegation of the Complaint due to non taking of step by him ; in our view the order for refund of amount can also not be passed. It is because Complainant cannot get advantage of a situation towards which he remained inactive and left taking steps.

Hence,

O R D E R E D

CC/50/2016 is dismissed for non taking of step by the Complainant.