Judgment dated 08-06-2016

          This is a complaint made by Swati De nee Roy daughter of Late P. K. Roy wife of Samir Kumar De of 3-F, Ananda Apartment, Rajendra Path, Patna-1 at present residing at Ekta Heighs, Block-4, Flat- 7B, 56, Raja S. C. Mallick Road, P.S. Jadavpur, Kolkata- 700 032 against Mrs. Subhra Majumdar of 47, South Park, Kolkata -700075 Proprietor of M/s. Pyramid of 17 South Park, Kolkata -700075, P.S. Survey Park and Shri Shyamal Kanti Maitra son of Late Pijush Kanti Maitra of P.S. Survey Park praying for direction upon the OP to execute and registered the Deed of Conveyance in favour of the petitioner in respect of the suit property describe in schedule ‘B’ and direction upon the OP pay a sum of Rs.5,00,000/- and litigation cost and other reliefs.

          Facts in brief are that OP No.2 is absolute owner of land measuring 6 (six) cottahs 6 (six) chittacks of R.S.Dag No.911, 912 of Mouza Jadavpur. OP No.2 entered into an agreement for development of that land on 04-04-1990 with OP No.1 Smt. Subhra Majumdar wife of Shri Animesh Majumdar sole proprietress of M/s. Pyramid. OP No.2 thereafter got general power of attorney from OP No.1. Complainant agreed to purchase a flat on the south side of the first floor being flat no. A having area of 1100 Sq. ft. together with undivided share of land for a total consideration of Rs.7,70,000/- on 15-10-1996. OP No.2 has signed this agreement for sale as confirming party. On 15-10-1996 she paid entire consideration money as agreed in the said agreement for sale by different installments and by cash and different dated cheques and OP NO.1 has acknowledged it. Thereafter OP NO.1 handed over possession of the said flat to the Complainant in December, 2015 but did not execute and  register the Deed of Conveyance till today. Complainant requested both the promoter and land owner to register the flat ‘A’ but of no use. Complainant was always ready and willing to bear all expenses for execution. Complainant has alleged that other flat owners of the same premises namely Ujjal Mondal, Sheila Halder and Siddhartha Guha  filed separate application and after hearing your honour please to allow the complaint of them.

          On the basis of above facts the complaint was admitted and notices were issued. Date was fixed for filing written version but OP did not take any step. So the case was heard ex-parte.

Decisions with reasons

          Complainant filed a petition for treating the complaint as affidavit-in-chief which was allowed and thereafter argument was heard.

           On perusal of the documents filed by Complainant it appears that agreement for sale was entered into between parties on 15-10-1996. Further it appears that as per agreement 20% of the total consideration money was to be given on the date of agreement, another 20% was to be given on foundation and 10% each on RCC 1^st. slab 2^nd slab and 3^rd slab and likewise with the development of the construction.

          Further on perusal of the receipt it appears that Rs.40,000/- was paid on 07-11-1998, Rs.1,05,000/- was paid on 12-02-1998, Rs.60,000/- was paid on 21-12-1997, Rs.50,000/- was paid on 13-09-1997 another Rs.40,000/- was paid on 01-07-1997, Rs.1,00,000/- was paid on 12-06-1997. There is a receipt of Rs.95,000/- where no date is mentioned and 09-12-1996 Rs.1,75,000/- has been paid. In addition Rs.1,40,000/-, Rs.2,00,000/-, Rs.20,000/- were paid which is mentioned in page     of Pyramid without any date.

          So on perusal of the receipts filed it appears that the Complainant has filed the receipts for the consideration money which he has paid. But Complainant has stated that in paragraph 8 of the complaint that OP No.1 handed over the possession of the said flat to the petitioner in December, 2015. This is a date when agreement for sale was not executed. Agreement for sale was executed on 15-10-1996. So it is unbelievable that developer will hand over possession before about one year of the signing of agreement for sale.

          Further in paragraph 12 of the complaint Complainant averred that other flat owners namely, Ujjal Mondal, Sheila Halder and Siddhartha Guha got their flat registered as per order of this Forum.

          So it is clear that the allegation made out in the complaint does not reveal that Complainant came with clean hands and so in our view he is not entitled to the reliefs as prayed for.

          Hence,

O R D E R E D

          CC/107/2016 and the same is dismissed ex-parte.