This is a complaint made by Smt. Mamata Mangal, wife of Sri Binoy Krishna Mangal, residing at 1st floor, plot No.2, premises No.18/7, Sahapur Colony (West), P.S.- New Alipore, Kolkata-700 053 against Gouranga Guha, son of Late Ashutosh Guha, residing at plot No.2, premises No.18/7, Sahapur Colony (West), P.S.- New Alipore, Kolkata-700 053, OP, prayed for an order of interim injunction restraining the OP from disposing of the subject flats, an order directing the OP to execute and register a deed of conveyance in favour of the Complainant and further direction to complete the boundary wall, stair case, plaster work of the building to install the common meter and to provide Completion Certificate in respect of the flat, an order to pay compensation of Rs.2,00,000/- for mental agony and harassment, compensation of Rs.5,00,000/- for increased stamp duty, another compensation of Rs.1,00,000/- for deficiency in service, and compensation as litigation charges of Rs.50,000/-.
Facts in brief are that Complainant for purchasing a residential accommodation for herself and her family members entered into an agreement for sale with the OP who is the owner and developer both.
In the year 2006, OP issued various advertisements in the local area and Complainant learnt about that and on 28.7.2016 at the time of entering into an agreement for sale Complainant paid Rs.2,00,000/- as earnest money for purchasing the flat and later on paid remaining balance on 31.7.2006, 23, 8.2006, 29.8.2006, 8.9.2006 and on 17.12.2016.
In compliance of the said agreement Complaint paid the total consideration amount of Rs.5,00,000/-. OP handed over the possession of the said flat and Complainant is residing in the flat which is more or less 620 sq.ft. super built up area. Complainant requested the developer to execute and register the deed of conveyance as per the terms of the agreement for sale dt.28.7.2006. The husband of the Complainant wrote a letter to the local committee, wherein the committee asked both the parties to attend a meeting to resolve the issue which was not attended by the OP.
Further, Complainant filed a complaint before the Officer-in-Charge of New Alipore Police Station. But, no action was taken. Again Complainant issued a notice through Advocate Subrata Chatterjee, which returned with the endorsement “refused”. Thereafter, Complainant made a complaint to the Consumer Forum Dept. But, no fruitful result came out. So, Complainant filed this complaint.
On the basis of the above facts, Complaint was admitted and notices were served upon the OPs. But OP did not contest the case. So, the complaint was heard ex-parte.
Decision with reasons:
Complainant filed affidavit-in-chief wherein Complainant reiterated the facts mentioned in the complaint petition.
Main for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint petition, it appears that Complainant has prayed for an order of interim injunction, restraining the OP from disposing the said flat. Since this complaint has been heard ex-parte, at this stage the question of granting an interim injunction does not arise.
Further prayer of Complainant is for a direction upon the OP to execute and register a deed of conveyance. Further, it appears that one Xerox copy of the agreement for sale is filed which is dt.28.7.2006 which appears to have been signed by the Complainant and the OP. However, it does not appear that OP was working as a developer and he was a service provider. In addition, Complainant has filed Xerox copy of the complaint made to the Police Station and also the letter revealing that a meeting took place. But, there is no copy of development agreement filed from where it could be ascertained that the OP was a developer and he did not provide the services as agreed in the agreement for sale.
In such circumstance, we are of the view that this complaint becomes a complaint reflecting the specific performance of contract between two individuals and it is guided by specific relief act. As such, this Forum does not have any jurisdiction to pass any order for providing relief to the Complainant.
Hence,
ordered
CC/387/2016 and the same is considered and dismissed ex-parte.
