Judgment : Dt.28.6.2017
This is a complaint made by Mr. Raichand Nagda, son of Late Dungershi Nagda, residing at 67/IV, Graham Road, P.S.-Jadavpur, Kolkata- 700 040 against (1) M/s Raj Enterprise, a partnership firm having its office at 67, Graham Road, P.S.-Jadavpur, Kolkata-700 040, OP No.1, (2) Sri Ratan Ganguly, son of Sri Rajeswar Ganguly, residing at 67, Graham Road, P.S.-Jadavpur, Kolkata-700 040, OP No.2, (3) Sri Ajoy Ghosh, son of Sri Bejoy Ghosh residing at 348, Graham Road, P.S.-Jadavpur, Kolkata-700 040, OP No.3, (4) Sri Joy Mallick, son of Sri Barun Mallick, 59, Santigarh Colony, P.s.- Jadavpur, Kolkata-700 040, OP No.4, (5) Smt. Uma Ghosh, wife of Sri Manan Kumar Ghosh, residing at 11/2, Rani Shankari Lane, Kolkata-700 026, OP No.5, (6) Smt. Shyamali Roy, wife of Late Hiralal Roy, residing at Plot 5-23-7, Sector-17, New Panel, Raigad District, Navi Mumbai-410 206, OP No.6, (7) Sri Arup Kumar Sarkar, son of late Anil Kumar Sarkar, residing at D-89, South City, Phase-II, first floor, Gurgaon, Haryana, OP No.7, (8) Mrs. Poly Ghosh, wife of Sri Ashok Ghosh, residing at Milan Nagar, Bus Stop, Aguripara, Kancharapara, Dist.-Nadia, West Bengal, OP No.8, (9) Sri Sushil Kumar Sarkar, son of late Krishna Prasanna Sarkar, residing at Pocket-F, Flat-207 D, Guru Teg Bahadur Enclave, Delhi-110 093, OP No.9, (10) Sri Sujit Kumar Sarkar, son of late Krishna Prasanna Sarkar, residing at Swati-B1, Neelachal Abasan, 98, Raidanga Gold Park (North), Kolkata-700 107, OP No.10, (11) Miss Gouri Sarkar, daughter of late Krishna Prasanna Sarkar, residing at Swati B1, Neelachal Absan, 98, Rajdanga Gold Park (North), Kolkata-700 107, OP No.11, (12) Sri Suhrid Kumar Sarkar, son of late Krishna Prasanna Sarkar, residing at G-32, New Garia Housing Society Ltd., Panchasayar, Kolkata-700 094, OP No.12 and (13) Sri Samir Kumar Sarkar, son of late Krishna Prasanna Sarkar, residing at 40/3, Graham Staff Colony, Brilagtam Nagda, Central Railway, MP-456 331, OP No.13, praying for a direction upon the OPs to execute the register the title deed in favour of the Complainant in respect of the schedule flat, a direction upon the OPs to pay a sum of Rs.5,00,000/- as compensation and Rs.50,000/- as litigation cost.
Facts in brief are that the flat No.A on the Ground floor, measuring 520 sq.ft. super built up area consisting of two bed rooms, one dining, one kitchen one bath and one W.C. and one verandah of the building is the subject matter of this complaint. OP No.1 is a partnership firm and does its business in development of land and construction of multi-storied building.
OP No.9 to 13 are owners. OP No.5 to 13 entered into a development agreement with OP No.1 represented by its partners OP No.2 to 4. As per the agreement OP No. 1 to 5 started construction, Complainant booked a flat of 540 sq.ft. super built up area at a total consideration of Rs.3,70,000/- on execution of agreement for sale on 6.9.2006 on payment of booking money (of Rs.38,000/- for a room on the top of the roof of the building, in pursuance of the supplementary agreement). After completion of construction, Complainant paid the total consideration money to the tune of Rs.3,38,000/-, OP No.1 delivered the possession of the flat with a possession letter dt.31.10.2006. At the time of handing over possession (and the room), OP No.2 to 4 assured and promised to execute and register the deed in respect of the flat and the room in favour of the Complainant. But, after sometime they started avoiding the registration of the conveyance deed. Complainant made requests, but, of no use. So, complainant filed this case.
OP No.1 to 4 filed written version wherein they have stated that (Complainant and his husband purchased two flats and it is settled law that when a family purchased two flats, it is for commercial purpose and so) the complaint is not maintainable. Further, these OPs have stated that the owners of the land did not agree to the proposal and due to non-cooperation of the owners the conveyance deed could not be made.
OP No.13 filed written version wherein he has stated that he is not liable to make the registration. It is because it is not owner’s allocation. So, he has prayed for dismissal of the complaint.
OP No.12 has also filed written version. He has also stated that he is not liable for making conveyance deed and so prayed for dismissal of the complaint.
OP No.11 has filed written version. He also submitted that Complainant is not entitled to direction upon OP No.11 to execute the registration of title deed and so prayed for dismissal of the complaint.
OP No.10 has filed written version. He also submitted that Complainant is not entitled to direction upon OP No.10 to execute the registration of title deed and so prayed for dismissal of the complaint.
OP No.5 has also filed written version. He also submitted that Complainant is not entitled to direction upon OP No.5 to execute the registration of title deed and so prayed for dismissal of the complaint.
Decision with reasons:
Complainant filed affidavit-in-chief against which OPs filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, some of the OPs filed evidence against which Complainant filed questionnaire and OPs filed reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion, it appears that Complainant has prayed for an order for making conveyance deed in favour of the Complainant.
On perusal of the copy of the agreement, it appears that Raj Enterprise has signed and (on the 1st page only Raichand Nagda) has signed. Further, it appears that (Raichand Nagda has signed on some other pages). So, it is clear that the agreement took place between the developers and (Raichand Nagda). (Now, it appears that one supplementary agreement was entered into between the developers and Raichand Nagda). Further, there is a possession letter which reveals that flat No.A of the Ground floor was handed over to Raichand Nagda and as per the copy of the possession letter, Raichand Nagda took possession.
Further, we do not find any mention of handing over possession of the area of 80 sq.ft. as per supplementary agreement entered into between the developers and the Complainant.
Further, it appears that OP No.2 to 4 are persons of Raj Enterprise and their signature appear on the agreement for sale. So, they are duty bound to register the flat of 520 sq.ft. as mentioned in the possession letter in favour of the Complainant. Since other OPs have not signed in the agreement for sale they cannot be directed to make a conveyance deed in favour of the Complainant.
Hence,
ordered
CC/351/2016 is allowed in part on contest. OP No.2 to 4 are directed to make the conveyance deed in respect of the flat No.A which is in possession of the Complainant within six months of this order. No order in respect of compensation and litigation cost is made because Complainant has not made out the ground for that.
