Date of filing: 08/12/2021
Judgment date: 15/05/2023
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by Sri Mani Ratan Sarkar under section 35 of the Consumer Protection Act, 2019 against the opposite parties (referred as OPs hereinafter) namely (1) M/s. Hindusthan Corporation a proprietorship firm and (2) Sri Samaresh Das the proprietor of the OP 1 alleging deficiency in rendering of service on the part of the OPs.
Case of the complainant in short is that he is co-owner of the proportionate part measuring 01 cottah 21 sq. ft. of land out of total land of 3 cottah, 1 chatak and 19 sq. ft. situated at premises no. 85, S. N. Roy Road, under police station Behala. Complainant entered into a development agreement with the OP 1 being represented by OP 2 and Memorandum of Agreement was executed between the parties on 28/08/2007. As per the agreement executed between the parties complainant was allowed a self-contained flat measuring 531 sq. ft. and also one shop room on the ground floor of the said newly constructed building measuring more or less 40 sq. ft. It was also agreed that the opposite party shall pay a sum of Rs. 50,000/- as non-refundable amount and Rs. 1,50,000/- as refundable security deposit which was to be refunded at the time of delivery of the flat and the shop room to the complainant. Opposite party has handed over possession of the said flat and shop room on 3rd October, 2010. Thereafter complainant applied for mutation in the Kolkata Municipal Corporation Office at Taratalla. But KMC Authorities have stated that unless the opposite parties issues no objection in writing, it is not possible to mutate the name of the complainant separately. In the KMC record the name of complainant and the OP 2 has been recorded as owner till date. Complainant on number of occasions approached the opposite parties to issue no objection certificate or to mutate the name of the complainant but all in vain. So the present complaint has been filed praying for directing the opposite parties to mutate / separate the name of the complainant or to give no objection in favour of the complainant, to pay compensation of Rs. 5,000,000/- for harassment and litigation cost of Rs. 2,00,000/-
On perusal of the record it appears that on receipt of the notice, as OPs did not turn up, case has been heard exparte.
So the only point requires determination is whether the complainant is entitled to the relief as prayed for?
DECISION WITH REASON
In support of his claim that a Memorandum of Agreement was entered into between the parties, complainant has filed the copy of the said agreement dated 28/08/2007. On a careful scrutiny of the said agreement, it appears that the complainant is the owner of land measuring 1 cottah, 1 chatak and 3 sq. ft. out of the total land of 4 cottah, 3 chatak and 22 sq. ft. more or less. The remaining land is owned by OP 2 representing OP 1 which he has acquired by way of purchase. So the OP 2 is the developer-cum-co-owner. It is apparent from the said agreement dated 28.08.2007 that there has not been any partition of the property between the parties in accordance with law. A partition can only be affected either by a decree of the court or by a registered instrument, which admittedly has not been done between the parties in this case. Even though complainant has stated that he applied for mutation of flat and the shop room in his name but no such document is filed. In the municipal record it stands in the joint name of the complainant and OP 2. But complainant has not stated whether portion of OP 2, in the said building stands in joint name or exclusively in the name of OP2. As per Memorandum of Agreement dated 28.08.2007, OP 2 was entitled to rest of the property barring the allocation of the complainant i.e. a flat and the shop room. So those rest portions which was allocation of the developer-cum-co-owner must have also been recorded in the joint name of the parties. As complainant has not stated the position of recording of the said portion in the record of KMC and when no partition has been affected between the parties in respect of the property in accordance with law, the prayer of complainant for directing to mutate the property in his name exclusively, cannot be allowed and thus present complaint is liable to be dismissed.
Hence
ORDERED
CC/619/2021 is dismissed exparte.
