Judgment : Dt.07.12.2017

Shri S. K. Verma, President.

            This is a complaint made by one Wahida Khatoon, w/o Siraful Mullah, resident of 1E/H/6, Ibrahim Road, P.S.-Ekbalpur, Kolkata-700 023 against M/s Eastern Syndicate, a proprietorship firm represented through its sole proprietor Sri Akil Ahmed, s/o Late Mohd. Safi of 1F, Ibrahim Road, P.S.-Ekbalpur, Kolkata-700023 praying for a direction upon the O.P. to deliver possession of the owner’s allocation on the first floor of the newly built G+3 building on the south western side as per schedule and another direction to OP to pay compensation to the tune of Rs.1,00,000/- for mental agony and harassment and direction upon the OP to pay litigation cost of Rs.10,000/-.

            Facts in brief are that Complainant is a consumer to. OP is a proprietorship firm under name and style of M/s Eastern Syndicate, having its registered office at 1F, Ibrahim Road, P.S.-Ekbalpur, Kolkata-700023. Complainant hired the services of the OP in the form of a development agreement in the year 2014 for rebuilding of her old and dilapidated land structure which she owned and possessed by devolution and on the strength of registered deed of gift dt.26.2.2013, executed by her father in her favour. After entering into a development agreement the Complainant further executed a general power of agreement in favour of the OP to continue such work. After completion of these formalities, relationship of consumer and service provider created between the parties. It was expressly agreed that the OP shall deliver one flat on the first floor measuring an area of 500 sq.ft. consisting of two bedrooms, one kitchen, bath room on the south western side of the rebuilt premises of G+3 building. It was also agreed that the possession as per the agreement shall be delivered within one year from the date of sanction of building plan by the competent authority. After all the formalities OP demolished the old structure and after obtaining the sanctioned plan, started a G+3 storied building, but failed to deliver possession to the Complainant with active intention to defraud the Complainant of her rightful claim. Complainant being a helpless lady and the service provider a man of money and muscle, openly refused to deliver possession to the Complainant. Complainant time and again requested the OP to deliver possession but of no use. So, Complainant sent notice through her advocate. But OP did not deliver possession. So, Complainant filed this case.

            OP filed written version and denied the allegations of the complaint. OP has admitted that he entered into agreement with the Complainant to develop a building. OP is a development firm run by proprietor Akil Ahmed. OP has denied that Complainant is a consumer. Complainant has misappropriated the development agreement which was filed before this Ld. Forum. After scrutiny of the agreement it was found  that in some pages the signature of the OP has been forged and the  same was informed through a written complaint to Ekbalpur P.S. The original development agreement is lying with the Complainant as she said the development agreement is need to submit before the Ld. 6^th Civil Judge (Jr.Div.) at Alipore in Case No.T.S.199/2016 and also before the Ld. 2^nd Addl. Civil Judge (Jr.Div.) at Alipore in Case No.T.S./2016. In the title suit No.199/2016 the developer and proprietor is also made a party. The schedule  property in the complaint is pending issue in the two title suits. Further OP has stated that it is written in Clause 19 that any dispute as per the agreement shall be adjudicated by reference to the arbitration of appointed by the parties and the award of the arbitrator shall be find and this clause shall be deemed to be a submission within meaning of the arbitration and conciliation Act, 1996 and its statutory modification and/or or reenactments thereof in force from time to time. Complainant has not filed the copy of sanctioned plan as annexure. The cause of action is written as 5.12.2016 which is much earlier to the expiry of one year which is contradictory  to the statement made in para 7 of the complainant. As the sanction plan was approved by KMC on 15.12.2015. The instant complaint lacks the truth and result of suppression of facts. So, this OP has prayed for dismissal of the complaint.

Decision with reasons

            Complainant filed affidavit-in-chief wherein she has reiterated the facts mentioned in the complaint petition. Against this OP has filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly, OP has filed evidence where the facts mentioned in the written version asserted. Against this Complainant filed questionnaire and OPs filed affidavit-in-reply.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

           It appears from the complaint petition that Complainant has prayed for handing over possession of owner’s allocation on the first floor of the newly built G+3 building and compensation of Rs.1,00,000/-.

           On perusal of the development agreement, it appears that the agreement was entered into between the parties in 2014. Further, it appears that the Complainant shall provide exclusive rights to the OP for making construction and fully cooperate to the OP. It is the allegation of the OP that Complainant has intentionally did not file the original development agreement. In clause 12b it is mentioned that Complainant shall get flat comprising about 400 sq.ft. and another 100 sq.ft. consisting of two bed rooms, one kitchen on the first floor south west side. There are other terms also which reveal that Complainant is entitled to those.

            On perusal of the written version and affidavit-in-chief filed by the OP, it appears that there are two suits pending in civil court and so this complaint is not maintainable. Further it appears that T.S 199/2016 is suit for injuction where Mainudin Haque filed suit against Wahida Khatoon and Fazul Haque and Md. Akil suit. Property of this is same as that of this complaint and other suit is T.S 199/2016.

             So, it appears that since two suits are pending and the present Complaint is filed after two suits it would be improper to adjudicate it on the same property.

           Since, this Complaint has been filed with the purpose of defeating two proceedings before the Civil Court, it can be surely said that Complainant did not knock this forum with clean hands and due to the act of complainant there are likelihood of  conflicting decision which law does not permit and encourage.

Hence,

ordered

             CC/24/2017 and the same is dismissed on contest.