This is a complaint made by one Shuvam Putatunda against Mithi Enterprise, Ema Das, Chabi Roy Chowdhury, Indrajit Mandal (Mondal) and Kalpana Dey, praying for a direction upon the OP Nos. 1 to 3 to deliver the possession of the flat as mentioned in the schedule and also for a direction upon the OPs for registration of the flat and compensation to the tune of Rs. 1,00,000/- and litigation cost Rs. 50,000/-.

            Facts, in brief, are that the Complainant intended to purchase a flat for which he approached the OPs.  The OP No. 1 is a partnership firm and is engaged in development and construction job.  OP Nos. 2&3 are the partners of the partnership firm, i.e., OP No. 1.  OP Nos. 4&5 are the owners of the property lying at KMC Premises No. 26/145, B&C, Graham Road, P.S. Jadavpur, Kolkata – 700 040.  OP Nos. 4&5 entrusted the property to the OP Nos. 1 to 3 to construct a building over the said plot of land and for this purpose, executed a development agreement and also executed power of attorney in favour of the OP Nos. 1 to 3.  The Complainant executed an Agreement for Sale with the OPs on 21-09-2011 for a flat on the 2^nd floor, measuring about 575 sq. ft. at a total consideration amount of Rs. 9,00,000/-.  As per the Agreement for Sale, the OPs were supposed to handover the flat and complete registration of conveyance by March, 2012.  Complainant paid Rs. 4,50,000/- to the OP Nos. 1 to 3 towards the consideration of the said flat.  However, the OP Nos. 1 to 3 did not offer possession of the said flat to the Complainant.  In fact, they were even not ready to take the balance payment from the Complainant.  So, the Complainant issued legal notice upon the OPs, but it did not yield any positive result.  Against such backdrop, Complainant filed this case.

            On the basis of above stated facts, the complaint was admitted and notices were caused upon OP Nos. 1 to 3 asking them to file WV.  Notices were also served upon the OP Nos. 4&5 through paper publication.  But, none of them turned up.  So, the case was heard ex parte.

Decision with reasons

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

            On perusal of the complaint, and the Affidavit-in-Chief, it appears that the Complainant claimed to have paid half of the total consideration money, i.e., Rs. 4,50,000/- to the OP Nos. 1 to 3.  However, for some obscure reasons, he has not filed original money receipts. Although it transpires from page no. 23 of the photocopy of Agreement for Sale that a sum of Rs. 3,00,000/- was paid by the Complainant, significantly the amount has been stated as the second instalment.  There is no explanation from the side of the Complainant as regards the payment of first instalment of Rs. 1,50,000/-.  On closer scrutiny of the photocopy of Agreement for Sale on record (page no. 23), we find some hand written details of alleged payments.  One wonders, while the said agreement was executed on 21/09/2011, how it is mentioned there that, “Balance payment paid Rs. 2,00,000/- (two lakhs) 27/9/11 (before)”. Moreover, as the said hand-written entries were not endorsed by the OP Nos. 1 to 3, there is no way to ascertain as to whether they were at all privy to such hand-written notings. 

Further, it transpires from the photocopy of Agreement for Sale, which is the sheet anchor of Complainant’s claim, it is signed by Shuvam Putatunda, Complainant and Ema Das & Chabi Roychowdhury, OP Nos. 2&3, it is not signed by the OP Nos. 4 and 5.  That being the undisputed position, we see no scope to hold the OP Nos. 3 and 4 responsible in any way to execute the Deed of Conveyance in favour of the Complainant. 

            Also, significant to note that the Complainant has stated to have paid only Rs. 4,50,000/- out of the total consideration money of Rs. 9,00,000/-.  Given the fact that the flat was supposed to be handed over to the Complainant by March, 2012, presumably, the Complainant ought to have paid the full consideration money to the OP developer by then, if not earlier. However, he has not placed on record any proof/evidence to show his diligent endeavour/readiness/willingness to pay rest of the consideration money.  Even if it is assumed for the sake of argument that the OP Nos. 1to 3 were indeed not interested to take rest of the amount from him, then he could have send it by post.  For the reason best known to the Complainant, he did not tread this path.  This is a clear pointer of laches on the part of the Complainant.

            According to the petition of complaint, the OP Nos. 1 to 3 were supposed to handover the flat and complete registration process in favour of the Complainant by March, 2012.  That being the admitted position, the Complainant ought to have filed this case by March, 2014.  However, he approached this Forum for relief on 17-02-2016.  Thus, we find the instant case is hopelessly time barred.

            Accordingly, we are of view that the Complainant is not entitled to any relief.

Hence,

O R D E R E D

            that CC/78/2016 be and the same is dismissed ex parte against the OPs.  We make no order as to costs taking into consideration the facts and circumstances of the case.