DATE OF FILING                    :     26.05.2015.

DATE OF S/R                            :      08.10.2015.

DATE OF FINAL ORDER      :     14.01.2016.

Smt. Bimala Das @ Sanchita Das,

wife of Sri Sanjib Das,

9/14, Kasundia 2^nd Bye Lane, Shibpur,

Howrah 711104. …………………………………………………… COMPLAINANT.

• Versus   -

1.         M/S Ramji Construction,

23, Krittibas Dhara Lane, P.S. Howrah,

PIN  711101.

2.         Sri Mohan Mondal,

son of late Sudhir  Chandra Mondal,

partner of M/S. Ramji Construction,

residing at 33/5/2, Nilmoni Mallick Lane, P.S. Batra,

Howrah 711101.

3.         Sri Raju Adak,

son of late Bimal Adak,

partner of M/S. Ramji Construction,

residing at 23, Krittibas Dhara Lane, P.S. Howrah,

PIN 711101.

4.         Sri Gopal Chakraborty,

son of late Bistucharan Chakroborty,

presently residing at 14/1, Nobin Banerjee Lane,

Howrah 711104 and also resident of

16/2/1/1, Halderpara Lane, P.S. Shibpur,

Howrah 711104.

5.         Smt. Kamala Mukherjee,

wife of Sri Pijush Mukherjee,

residing at Kheerkundi, Pandua, P.S. Pandua,

Hooghly 712149. …………………………………….……OPPOSITE PARTIES.

P    R    E     S    E    N     T

Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

Hon’ble Member      :      Smt. Jhumki Saha.

Hon’ble Member : Shri A.K. Pathak.

F  I   N   A    L       O   R   D    E     R

1. This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioners, Bimala Das @ Sanchita Das, against M/S. Ramji Construction and others,  o.ps., praying for a direction upon the o.p. nos. 1, 2 & 3 to give 1/3^rd proportionate share over the schedule ‘B’ property to the complainant as per terms and conditions in Clause 3 & 13 of Development Agreement of 2009 and to pay Rs. 7 lakhs and to handover  a flat of 500 sq. ft. on the top floor and also to handover a shop room measuring 100 sq. ft. in the ground floor and the newly constructed building and to pay compensation of Rs. 4 lakhs for their deficiency in service and delivered vacant possession of the schedule ‘B’ mentioned flat and shop room.  

2. The case of the petitioner is that there was a development agreement between the petitioner and the o.p. nos. 1, 2 & 3 in the year 2009 and as per terms of agreement the o.p. nos. 1, 2 & 3 agreed to pay Rs. 7 lakhs to the petitioner and to hand over a 500 sq. f.t. flat on the top floor and a shop room measuring 100 sq. ft. in the ground floor of the newly constructed building. The o.p. nos. 4 & 5 are co owners and the petitioner has her 1/3^rd share over the ‘B’ schedule mentioned property. The o.p. nos. 1, 2 & 3 got the plan sanctioned being G+3 and constructed the building but did not hand over the flat or shop room and money to the petitioner.  The o.p. nos. 4 & 5 executed a power of attorney in favour of o.p. nos. 1, 2 & 3 but no such document produced before Forum.   The dispute between the petitioner and the o.ps. continued as the o.ps. did not hand over the flat and shop room and money and getting no other alternative the complainant filed this case before this Forum claiming her 1/3^rd share in property and money.

3. The  o.ps.  contested the case by filing a written version denying the allegations made against them and submitted that the case is not maintainable and regarding payment of money of Rs. 7 lacs they had already paid Rs. 1,51,000/- by cash and cheque.  They further stated that they are always ready to hand over the flat and shop room to the complainant but the complainant did not agree to take delivery of possession as there was dispute between the petitioner and the co shares namely o.p. nos. 4 & 5.  The o.p. no. 5 has already transferred her share in favour of petitioner and o.p. no. 4 by registered deed of gift. There is actually no dispute in handing over the flat and shop room as well as payment of the balance amount.  Thus the petitioner has no cause to file the case and the same be dismissed.     

4. Upon pleadings of  parties the following  points arose for determination :

1. Is the case maintainable in its present form ?

2. Whether the petitioner has any cause of action to file the case ?
3. Whether  there is  any deficiency in service on the part of the O.Ps.?
4. Whether the complainant is   entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5. All the issues aretaken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of her case the petitioner filed affidavit in chief as well as documents namely the agreement between the co-owners of the property namely petitioner and two others and also the o.p. nos. 1 to 3 wherein in para 3 of the said agreement clearly stated that this was an agreement between the owners and the developers who were allowed to make a multi storied building G+3 and in the new construction the petitioner of this case would be provided with a flat in the top floor measuring 500 sq. ft. and a shop room of the ground floor measuring 100 sq. ft. and the cash payment be made amounting to Rs. 7 lacs. It is further stated in para 13 of the agreement that at the time of registering agreement a payment of Rs. 50,000/- be made by the o.p. to the petitioner and at the time of the power of attorney another 1 lakh be paid by them and the rest later on. The o.p. nos. 1 to 3 did not execute and register the share of the petitioner compelling him to file this case. The o.ps. on the other hand appeared and submitted that there was dispute between the co sharers and so they could not hand over possession of the owners of the property including the petitioner.

6.This Forum perused the written version as well as the petition of complaint and the documents filed and also keeping in mind the submission of the ld. counsel of both sides find that in the instant case as per o.ps. Rs. 1,50,000/- has been paid but the share of the petitioner namely 500 sq. ft. on the top floor and 100 sq. ft. in the ground floor have not been transferred to the petitioner and they are always ready and willing to transfer the same including due cash amount though o.ps. filed no documents in respect of payment. Thus when the o.ps. agreed to handover the flat, shop room and pay the cash to the petitioner then this Forum finds no point of further discussion on all these points and direct the o.ps. to hand over the flat and shop room and to pay 1/3^rd of rest cash ofRs. 6,49,000/- to the petitioner at the earliest. As regards transfer by o.p. nos. 4 & 5 no document produced before Forum and so no order passed.

In view of above the claim case succeeds.

Court fee paid is correct.

      Hence,                             

O     R     D      E      R      E        D   

      That the C. C. Case No.  206 of 2015 ( HDF 206 of 2015 )  be and the same is   allowed in part on contest without  costs  against  the O.P. nos. 1, 2 & 3 and dismissed ex parte against the rest without cost.   

      The petitioner is entitled to the reliefs as prayed for and the o.p. nos. 1, 2 & 3 are directed to pay 1/3^rd of  Rs. 6 lakhs 49 thousands  to the complainant as the rest amount as per agreement and execute and register  the flat measuring 500 sq. ft. at the top floor and a shop room measuring 100 sq. ft. at the ground floor in favour of the petitioner  within 30 days from the date of this order

           The complainant is at liberty to put the order  into execution after expiry of the appeal period.             

      Supply the copies of the order to the parties, free of costs.

DICTATED  &    CORRECTED

BY   ME.  

  (    B. D.  Nanda   )                                               

  President,  C.D.R.F., Howrah.