Judgment : Dt.18.1.2018
Shri S. K. Verma, President
This is a complaint made by one Manjushree Dey wife of Lakhi Narayan Dey, residing at 21/B, Avinash Ghosh Lane, Kolkata-700 006 against Md. Sarif Sekh, son of Habibur Sekh, 30/A/4, G.J.Khan Road, P.S.-Tiljala, Kolkata-700 039, OP No.1, Lilavati Basu wife of Late Anupam Basu 6, Chowbaga Road, Kolkata-700 039,OP No.2, Ujjala Deb wife of Rabindra Nath Deb, P-24, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.3, Chandra Roy, wife of Arun Roy, P-24, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.4, Tundra Das, wife of Shyam Das P-24, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.5, Chandra Deb daughter of Rabindra Nath Deb, P-24, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.6, Rabin Singh son of Birendra Kumar Singh, P-23, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.7, Shefali Singh, wife of Khagen Singh, P-23, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.8, Biswajit Sigh, son of Birendra Kumar Singh, P-23, Netaji Subhas Nagar Colony, Kolkata-700 100, OP No.9 praying for a direction upon the O.P.s not to enter into any other agreement with any other person to make deed of conveyance in favour of the Complainant in respect of the flat and further direction upon the OP to pay a sum of Rs.3,00,000/- towards the cost of delayed and non-delivery of the physical possession of the flat and compensation of Rs.4,00,000/- and litigation cost for harassment and physical inconvenience and mental agony and another Rs.4,00,000/- as pecuniary damages for the breach of agreement by the OPs.
Facts in brief are that OP No.3, 4 & 5 are the absolute joint owners of the land and property measuring about 1 cottah 2 chittaks known and numbered as P-24, Netaji Subhas Nagar Colony, P.S.-Tiljala, Kolkata-700 100. OP No.6,7, 8 & 9 are the absolute owners of the land measuring about 1 Cottah 2 chittack, known as P-23, Netaji Subhas Nagar Colony, P.S.-Tiljala, Kolkata-700 100. OP No.1 & 2 are the developers. The owners being the OP No.3 to 9 are desirous of developing their land by constructing a new four storied building according to sanctioned plan comprising of several residential flats and the owners agreed to carry out the development work through the OP No.1 & 2 and executed two agreements for construction dt.18.11.2009 and 4.12.2009. Thereafter, OP No.1 & 2 being the developer constructed multi storied building on the land and property of the owners as described in the agreement for construction. The developers being the OP No.1 & 2 in the month of September, 2010 approached to sell one self contained flat measuring about 767 sq.ft. more or less together unpartiable proportionate share or interest in the land along with the undivided use and easement rights situated on the 2nd floor, Southern portion at P-23 & 24, Netaji Subhas Nagar Colony, Kolkata-700 100 at a total consideration of Rs.7,67,000/- and Complainant agreed to take such flat and made payment of Rs.2,00,000/- on 8.9.2010 by cheque against proper receipt as an advance and thereafter entered into an agreement for sale on 12.3.2011. After that Complainant paid to the developer a total sum of Rs.8,00,000/- time to time by each and by cheques and the developer received and acknowledged such sum of money. The developers failed and neglected to complete the pending works of the said flat as per agreement for sale dt.12.3.2011. It was specifically agreed by the developer that they shall handover the said flat to the Complainant within one month from the date of execution of the said agreement for sale.
The developer failed and neglected to complete the pending works of the said flat as per agreement for sale dt.12.03.2011 and the Complainant on several occasions visited and met with the land owners and requested to complete the work and handover the possession of the flat and execute and registration. But of no use. Finding no other alternative, the Complainant requested the developer and land owners to complete the internal pending works at her own costs. The developer and the land owners allowed the Complainant to carry out the internal pending works at her costs and thus the Complainant have started all internal works of the said flat. During the aforesaid internal works carried by the Complainant regularly, the men and agents of the Netaji Subhas Nagar Colony Committee and the developers and the land owners demanded the money by showing their muscle power illegally and wrongfully and thereby created serious disturbances and lastly on 7.5.2015 the OPs totally stopped the internal works by putting and lock keeping all such materials of the Complainant inside the flat. Complainant time to time served the demand notice through the Ld. Advocate and also lodged complaint to the local P.S. But, till date no action has been taken. Complainant stated that she is ready to get the execution and registration of the said flat in her name. Complainant has further stated that the activities of the OPs from the beginning of the agreement for sale they motivatedly and intentionally caused the breach of the execution of agreement. As such, they did not deliver the flat of the Complainant. Complainant has also stated that OPs shall pay compensation to the Complainant to the tune of Rs.4,00,000/-. So, Complainant filed this case.
OP No.3 to 6 filed written version and denied the allegations of the complaint. They have further stated that the allegations made by Complainant are of baseless and false. These OPs have submitted that on 4.12.2019 they entered into an agreement with the developer, Anupam Basu, Md. Sarif for construction of a four storied residential flat on the terms and conditions made in the agreement. It was settled by the agreement dt.4.12.2009 that the developer shall prepare building plan three storied and shall submit the plan before the owners. But the developers did not submit it. It was also settled by the said agreement that the owners’ allocation of 50% should be given first then he developers can sell their portion. But the developers have failed and neglected to complete their part of contract nor have they provided 50% area in the different floors in favour of these OPs. These OPs are not liable for the agreement made between the Complainant and OP No.1 & 2. Moreover, it appears from the money receipt executed by Anupam Basu, Md. Sarif, received cheque of Rs.2,00,000/- out of total consideration of Rs.10,00,000/- for a flat measuring 1000 sq.ft. and Lilabati Basu and Md. Sarif further received Rs.2,00,000/-. These matters are between the developer and the Complainant, the purchaser. Except this they have denied the allegations. These OPs have stated they did not execute any power of attorney in favour of the developers, OPs. There is no privity between Complainant and OPs and so they are not liable for this.
Written version on behalf of OP No.7 has been submitted wherein OP No.7 has denied all the allegations of the complaint and has stated that along with OP No. 8 & 9 entered into an agreement with the developers namely Anupam Basu, Md. Sarif Seikh and Shakh Arju for construction of a three storied building on the terms and conditions made therein. It was settled by the said agreement dt.18.11.2009 that the developers shall construct three storied building plan and shall submit the same before the owners. But they did not do that. It was also settled by the said agreement that the developer shall be liable to provide entire ground floor and Rs.3,50,000/-. But the developers failed and neglected to complete their part. The OP shall not be liable for the agreement dt.12.3.2011 made between the Complainant and the developer, OP No.1 & 2. It appears from the said agreement that if any dispute arises between the parties that will be referred to the arbitrator. Moreover, it appears that OP No.1 and Anupam Basu received Rs.2,00,000/-. So, this OP has also prayed for dismissal of the complaint.
Other OPs did not contest the case by filing written version and so the case is heard ex-parte against them.
Decision with reasons
Complainant filed affidavit-in-chief to which OP No.7 filed questionnaire. OP No.3 to 6 also filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP No.3 to 6 filed evidence to which Complainant filed questionnaire and OP No.3 to 6 filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that the Complainant has prayed for a direction upon the OPs to register the deed of conveyance in favour of the Complainant in respect of the schedule flat. In this regard, it appears that there is no bone of contention between the developer and owners over the agreement for sale which developers entered with the Complainant. Further, it appears that agreement for sale was executed between the developers and the Complainant. At the time of arguments, Ld. Advocates of the parties submitted that there took place an agreement for sale between Complainant and the developers. Complainant has filed copy of the money receipts which reveal that Complainant paid Rs.4,00,000/- by cheque to the developers. Further, it appears that the agreement between Complainant and Mr. Lilabati Basu and Md. Sharif Seikh developer and Manjushri Dey, purchaser for a flat measuring about 767 sq.ft. This agreement has been signed by Md.Sharif and Lilabati Basu. In the schedule of the flat it is mentioned that the flat having an area of 767 s.ft. in second floor and consisting of four bed rooms, one dining cum kitchen, two toilets of premises No.P-23 and P-24. Now Lilabati Basu, OP No.2 who has signed this agreement is the developer as per the complaint petition. However, it appears from Paragraph 9 of the complaint petition that the agreement for sale took place on 12.3.2011 and in that agreement the developer prayed to handover the flat to the Complainant within one month from the date of execution for agreement for sale. This makes it clear that the flat was ready for sale and in a sale of ready flat there does not remain any deficiency in services. So, we are of afraid that the Complainant becomes a consumer and so we are of the view that Complainant is not entitled to any relief.
Hence,
ordered
RBT/CC/116/2015 and the same is dismissed on contest.
