Judgment : Dt.29.8.2017
Shri S. K. Verma, President.
This is a complaint made by one Mr. Kamaljit Singh, son of Late Surat Singh, residing at Flat 2B, Duke Residency, 13, Chanditala Lane, P.S.-Regent Park, Kolkata-700 040 against – (1) M/s Sonia Promoters Pvt. Ltd., Developer, having registered office at 14, Hindustan Park, P.S.-Gariahat, Kolkata-700 029, OP No.1, (2) Dr. Sachchidananda Bedi (Landowner), OP No.2 and (3) Mr. Hridayananda Bedi (Landowner), OP No.3 both sons of Late Kamalakanta Bedi, residing at 2/9, Diamond Park, P.S.-Haridevpur, Kolkata-700 104, praying for (a) direction upon the OPs to execute and register the deed of conveyance in respect of second schedule flat within a specific period in favour of the Complainant, (b) direction upon the OPs to hand over the possession of the flat as mentioned in the 2nd schedule in favour of the Complainant, and (c) a direction upon the OPs to pay Rs.1,80,000/- to the Complainant as compensation for doing unfair trade practice and (d) another Rs.1,00,000/- for increase in the stamp duty and (e) Rs.20,000/- for the cost of the proceedings.
Facts in brief are that OP No.1 is the developer and does business of the development in the name and style of M/s Sonia Promoters Pvt. Ltd. OP No.2 & 3 are the land owners. Complainant on the basis of the development agreement and power of attorney entered into an agreement for sale for purchasing a flat of 547 sq.ft. for a consideration of Rs.17,00,000/-. Complainant paid Rs.2,00,000/- to the OP, developer, as part of consideration amount. On several occasions, OP fixed date for registration, but, ultimately it could not be done. The flat has been completed. OP No.1, developer, is ready and willing to handover the possession of the 2nd schedule flat in favour of the Complainant but the OP No.2 & 3 are not ready and willing to execute the deed of conveyance in terms of the agreement for sale. OPs are under obligation to register the property in favour of the Complainant. On 30.11.2016 Complainant requested the OPs to handover possession of the flat and execute the sale deed in favour of the Complainant. Complainant has performed all his obligations as purchaser but the OPs did not oblige him. So, OPs have committed unfair trade practice. As such, Complainant filed this case.
OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against it. OP No.2 & 3 filed written version and contested the claim of the Complainant. OP No.2 & 3 have further stated that OP No.1 entered into a development agreement on 5.9.2012 for construction of 3 Blocks i.e. A, B & C, containing 17 flats in Block A, 16 flats in Block B and 18 flats in Block C in terms of the agreement OP No.1 agreed to complete the construction and deliver possession to the owners within 24 months. Plan of the construction sanctioned by Joka-II Gram Panchayet. OP No.1 violating the sanction plan illegally constructed 4th floor in Block B & C and also constructed a ground floor flat in Block C and failed to raise any construction in Block A. Further, it is stated as per the ratio settled in the development agreement owner is to get 7 flats one car parking space in Block B and developer is to get 9 flats and car parking space. In Block C the owner will get 8 flats and car parking space earmarked for OP No.1.
Since, OP No.1 raised unauthorised construction and failed to complete the building in Block B & C, OP No.1 failed to obtain completion certificate from the authority concerned. OPs revoked the power of attorney on 8.9.2016. OP No.1 filed a suit being T.S. No.2174/2016 before the Ld. 5th Civil Judge, Jr. Division at Alipore for declaration and injunction against these OPs. OP No.1 also filed an application for injunction, restraining OP No.2 & 3 from transferring, assignee and dealing with the property under Agreement and after hearing the Court by order dt.4.11.2016 pleased to pass an ad-interim order of injunction in the said application for injunction. OP No.1 enclosed document. Complainant Kamaljit Singh is the agreement holder of flat No.CGB measuring of an area of 574 sq.ft. super built up area more or less in Block C. In the instant application the Complainant stated that he entered into sale agreement with OP No.1 on 15.6.2015 and agreed to purchase flat No.CGB in Block C at a consideration of Rs.17,00,000/- and paid Rs.2,00,000/- as part consideration. Further, Complainant has stated that OP No.1 is ready and willing to handover the possession of the said flat but these OPs are not ready and willing to handover possession and to execute the sale deed. These OPs have also stated that OP No.1 raised an illegal construction and so Complainant cannot get relief out of the illegal construction. Accordingly, these OPs have prayed for dismissal of this case.
Decision with reasons
Complainant filed a petition for treating the Complaint petition as affidavit-in-chief and the prayer was allowed. Thereafter contesting OPs filed questionnaire against this Complainant filed affidavit-in-reply. OPs filed a petition praying for treating written version as affidavit-in-chief and the prayer was allowed. Complainant filed questionnaire against that. OP No.2 & 3 filed affidavit-in-reply and thereafter argument was heard.
Main point for determination is whether Complainant is entitled to the relief as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for a direction upon the OPs to execute and register the deed of conveyance. In this regard, it appears that a Xerox copy of the development agreement has been filed which reveals that there was a development agreement between the OP Nos.2 & 3 with OP No.1. It also appears that there was a power of attorney dt.5.9.2012 in favour of the OP No.1 by OP No. 2 & 3. On the basis of these two documents a plan was sanctioned for construction of a building on the land mentioned in the first schedule of the complaint.
Complainant has also filed copy of an agreement for sale wherein it has been stated that Complainant entered into an agreement for sale with the parties for purchasing a flat of about 574 sq.ft. at a consideration of Rs.17,00,000/- excluding extra charges. It is the case of the Complainant that he paid Rs.2,00,000/- at the time of agreement for sale. There is a schedule mentioned in the agreement for sale where the condition has been fixed as to how and when the Complainant will pay the consideration money. There is no mention as to whether Complainant in terms of the agreement for sale paid the consideration money to the OP developer. The only mention is that Complainant paid Rs.2,00,000/- on 15.6.2015 by cheque No.583157.
So the question arises as to whether the person who has paid only Rs.2,00,000/- out of Rs.17,00,000/- is entitled to an order from this Consumer Forum for handing over the possession to him and also for a direction upon the OPs to execute for registration of conveyance deed in favour of the Complainant. If we go through the terms and conditions of the agreement, it is clear that the money was to be paid as per the agreement to development of the construction i.e. (a) on completion of foundation 10%, on casting of first floor slab 10%, on casting 2nd floor slab 10%, on casting of 3rd floor slab 10%, on casting of 4th floor slab 10%, and so and on and soforth.
As such, it is the duty of the Complainant to file documents or evidences to establish that he complied the terms and conditions of the agreement or sale which he entered into with the OPs.
Further, on perusal of the agreement for sale, it appears that there is no mention that Complainant obeyed the terms and conditions. Moreover, affidavit-in-chief, questionnaire and affidavit-in-reply did not suggest that Complainant paid at least 90% of the consideration money after which he becomes entitled for possession and registration of flat in his favour. This reveals that Complainant did not approach this Forum with clean hands.
Hence,
ordered
CC/629/2016 and the same is dismissed on contest.
