Judgment : Dt.10.3.2017

            This is a complaint made by Nirmala Mallick daughter of Kiran Chandra Mallick, residing at 11/29, S.P.Chatterjee Road, Banker Bagan (E), Kolkata-700 061, praying for a direction upon the OP to deliver the ground floor flat in favour of the Complainant and for finishing the flat and also return of the documents mentioned in the complaint and to measure the entire construction of the G+3 floors and to pay compensation of Rs.5,00,000/- and any other reliefs.

            Facts in brief are that Complainant is a bachelor and retired from a responsible post under the Central Government. She is the owner of a plot of land and she was in search of a good developer. A developer was searched and after that a development agreement was entered into between the Complainant and the OPs for construction of G+3 multi-storied building, in the ration 60-40 that means 60% would be of developer and 40% of the owner. A joint venture agreement was entered into between the parties. The plan was sanctioned on 23.9.2013. After construction developer delivered the peaceful possession of the flat on 25.2.2016 to the agent of the Complainant Mr. Subrata Chattopadhyay. From the area of flat No.B 225 sq.ft. was deducted. Prior to the delivery of the flat no joint inspection was made. Complainant had handed over possession of the land measuring about 3 cottahs to the developer. Thereafter, Complainant went to stay in the flat where she found several defects. She requested the OPs for making the defects corrected. But of no use. So, Complainant filed this case.

            OP No.2, 3, 4 & 5 files written version and denied all the allegations. They have further stated that the complaint is not maintainable. 60-40 ratio was approved by the Complainant. Complainant has made several false statements. These OPs have also stated that they performed all the obligations of the joint venture agreement. This joint venture agreement was registered and executed in Alipore Treasury Office. Proforma OP No.6 & 7 are the friends of Complainant and renowned builders. So, these OPs have prayed for dismissal of the complaint.

Decision with reasons:

            Complainant filed affidavit-in-chief to which OPs have filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly, OPs have filed evidence to which Complainant has filed questionnaire and OPs have filed affidavit-in-reply.

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

            On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for a direction upon the OP to deliver the ground floor flat in favour of the Complainant. Further, neither from the evidence nor from the allegation of the complaint, it appears that there was agreement between the parties for delivery of the ground floor flat, but, joint venture agreement was entered into between the parties some time in 2013. As such, we are of the view, this prayer cannot be allowed.

            The 2^nd prayer of the Complainant is to finish tit bit jobs as observed in the flats. We are unaware of the tit bit jobs. Because these are neither mentioned in the complaint petition nor in the affidavit-in-chief. Of course, at the time of argument Ld. Advocate submitted that there are some defects in the flats. But, simply by making submission, it cannot be said that OP remained deficient in making construction of the flat properly and tit bit jobs are to be done. As such, we are of the view that these prayer cannot be allowed. Here it is noteworthy to mention that during trial of petition for appointment of Engineer Commissioner was made and this Forum rejected the petition on the ground that there was no clear cut allegation of the defective floor construction and other jobs.

            The third prayer of Complainant is to return all the documents mentioned in the complaint in original which were taken from the Complainant.

            On perusal of the complaint, it appears that specifically no document is mentioned in the complaint. Furthermore, unless and until the documents specifically mentioned in the prayer portion of the complaint, the question of allowing the prayer for return of documents does not arise. On perusal of the documents, filed by the Complainant also we do not find any receipt of any document establishing that Complainant handed over some documents to the developer, OPs. Furthermore, after the sanction of the plan documents ought to have been returned. But, there is no mention as to whether the documents which Complainant was handed over were returned. As such, we are of the view that this prayer cannot be allowed.

            The 4^th prayer of complainant is for appointment of survey passed commissioner. In this regard, it is clear that this Forum during the pendency of the trial rejected the prayer of appointment of survey passed commissioner. Further, Complainant has prayed for compensation of Rs.5,00,000/- and litigation cost. Since, Complainant failed to establish the allegation, we are of the view that there is no ground to allow compensation or litigation cost.

            Hence,

ordered

            CC/268/2016 is dismissed on contest.