Judgment : Dt.8.1.2018
Shri S. K. Verma, President.
This is a complaint made by one Mr. Ajay Singh, son of Sri Nandlal Singh, residing at 64/5/B, (Corporation premises No.22), Buroshibtala Main Road, P.S.-Behala, Kolkata-700 038, Dist.- South 24 Parganas against Mr. Akhtar Hossain, son of Ahmed Hossain of B48H/1, Bright Street, OP No.1, Mr. Arif Ali, OP No.2, Sk. Arshad Ali, OP No.3, OP Nos.2 & 3 are sons of Wasif Ali, residing at 6B, Tiljala Road, P.S.-Beniapukur, Kolkata-700 046, Mr. Kashinath Ghosh alias Dholey, OP No.4, Mr. Kesto Ghosh alias Dholey, OP No.5, Mr. Bijoy Ghoush alias Dholey, OP Nos.04, 05 and 06 are all sons of Late Khadu Ghosh alias Dholey, OP No.6, Mrs. Sandhya Ghosh, widow of Late Lakshman Chandra Ghosh alias Dholey, OP No.7, Mr. Palash Ghosh alias Dholey, son of Late Lakshman Ghosh alias Dholey, OP No.8, Mrs. Mallika Poyali, wife of Mr. Swapan Poyali, dauthter of Late Lakshman Chandra Ghosh Alias Dholey, OP No.9, Mrs. Juthika Ghosh, wife of Kapildev Ghosh, daughter of Late LakshmanChandra Ghosh alias Dholey, OP No.10, Mrs. Shefali Ghosh, widow of Late Balaram Ghosh alias Dholey, OP No.11, Mr. Probir Ghosh, son of Late Balaram Ghosh alias Dholey, OP No.12, Mrs. Pampa Dholey, wife of Mr. Sanjib Dholey, daughter of Late Balaram Ghosh alias Dholey, OP No.13 and Mrs Jhumpa Ghosh, daughter of Late Balaram Ghosh alias Dholey, OP No.14 – OP No.04 to No.14 all are of64/5/B, (Corporation premises No.22), Buroshibtala Main Road, P.S.-Behala, Kolkata-700 038, Dist.- South 24 Parganas, praying for a direction upon the OPs to execute and register the proper deed of conveyance in respect of 1st floor, front portion flat measuring 600 sq.ft. described in the schedule in favour of the Complainant in accordance with the agreement for sale dt.15.3.2014 after receiving balance amount of consideration of Rs.2,50,000/- and further direction to bear the cost of escalation of expenses for registration from 3.11.2015 till the date of registration and compensation of Rs.1,00,000/- and litigation cost of Rs.50,000/-.
Facts in brief are that OP No.1 & 3 are the developers and OP No.4 to 14 are the joint owners of land measuring about 2 cotahs 7 chittaks 27 sq.ft. situated in KMC Premises No.22, Buroshibtala Main Road, Behala, Kolkata-700 038. OP No.4 to 14 entered into a joint venture agreement with OP No.1 to 3 for development of their property and also executed a power of attorney in favour of Mr. Akhtar Hossain OP No.1 which was registered in the office of ADSR, Sealdah. OPs obtained a building plan sanctioned by the KMC. Complainant entered into an agreement for sale with OPs on 15.3.2014 for purchasing a flat from the developer’s allocation for a consideration of Rs.15,50,000/-. Out of that Complainant paid Rs.8,00,000/- by two cheques. Thereafter, Complainant paid Rs.5,00,000/- on 15.4.2015. Complainants residing in the said flat with his family since 15.4.2015. Complainant mutated his name in the register of the KMC and paying taxes. Complainants on number of occasions requested OPs to execute a deed of conveyance after accepting Rs.2,50,000/-, but OPs did not pay any heed to that. So, Complainant filed this case.
OP No.4 to 14 filed written version against the complaint made by the Complainant and denied the allegations of it. Further, they have stated that they have no idea about payment of money to the developer. These OPs have stated that they do not deny liability of making conveyance deed and developers violated the terms and conditions. So, they are not at fault but developers are at fault. So, these OPs have prayed for dismissal of the complaint.
OP No.1 to 3 also filed written version and denied the allegations of the complaint. Their contention is that they are entitled to Rs.50,000/- apart from the flats as profit amount. Complainant entered into a joint venture agreement with all the OP. Complainant failed to pay the agreed consideration amount within time. These OPs handed over possession of the flat without taking Rs.2,50,000/- which was due to be paid by the Complainant. These OPs have never refused to execute the deed of conveyance. Since the Complainant failed to pay the consideration amount the deed could not be made. Further, these OPs have stated that the complaint is not maintainable and it should be dismissed.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Thereafter on a petition filed by OP No.1 to 3, paragaphs 6, 7, 8 & 9 of the affidavit-in-chief were expunged. OP No.1, 2 & 3 filed questionnaire aginst which Complainant filed affidavit-in-reply. Similarly, OPs filed evidence against which Complainant filed questionnaire and OPs 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, it appears that the Complainant has prayed for a direction upon to execute a deed of conveyance in his favour after receiving Rs.2,50,000/-.
On perusal of copies of agreement filed by the Complainant it is clear that there was a joint venture agreement between the parties for sale of the flat. OP No.1 to 3 have not denied that Complainant did not pay Rs.13,00,000/- to them. As per written version OP No.1 to 3 only denied that Complainant did not make payment within scheduled time and delayed in making payment of Rs.2,50,000/-. OP Nos.4 to 14 also have not denied their willingness to make the conveyance deed in favour of the Complainant.
In our view it is a fit case where OPs be directed to make conveyance deed in favour of the Complainant.
2nd prayer of the Complainant is a direction upon the OP to bear the cost of escalation for registration from 3.11.2015 till the date of registration. In this regard, it is clear that the Complainant got the possession without paying rest consideration money of Rs.2,50,000/-. So, the registration could not be done. So, fault lies on Complainant and he will have to bear the cost of escalation of expenses for registration from 3.11.2015.
Complainant has also prayed for payment of cost of registration by the OPs which appears to be unjustified and cannot be allowed. Complainant has prayed for Rs.1,00,000/- as damages and Rs.50,000/- for harassment. In this regard, it is clear that due to the conduct of Complainant deed of conveyance could not be made. So, Complainant is not entitled to any compensation or damages.
Hence,
ordered
CC/17/2017 and the same is allowed in part on contest. Complainant is directed to pay to OP developer Rs.2,50,000/- within 1 month of this order and after receiving, OPs are directed to make conveyance deed in favour of the Complainant within another two months.
