Judgment : Dt.31.10.2017

Shri S. K. Verma, President.

            This is a complaint made by one Sri Biswajit Banerjee, son of Late Santosh Kumar Banerjee, residing at premises being No.3/63 B, Regent Colony,P.O.-Regent Park, P.S.-Jadavpur, Kolkata-700 040 against M/s Sree Ram Builders, a proprietorship Firm, having its place of business at premises being No.3/63/C, Regent Colony, P.S.-Jadavpur, Kolkata-700 040, OP No.1, Sri Ratan Banerjee, son of Late Santosh Kumar Banerjee, residing at premises being No.3/63/C, Regent Colony, P.S.-Jadavpur, Kolkata-700 040, OP No.2, Smt. Anjali Karmakar, wife of Sri Lakshman Karmakar, residing at premises being No.55, Shanti Nagar Colony, P.S.- Regent Park, Kolkata-700 040, OP No.3 and Smt. Gita Chanda, wife of Sri Dilip Chanda, residing at premises being No.40/15/1, Moore Avenue, P.S.-Regent Park, Kolkata-700 040, OP No.4, praying for a direction upon the O.P. No.1 & 2 to execute and register the deed of conveyance in respect of flat No.GB in Ground floor on north east side measuring 700 sq.ft. super built up area, more or less in the said building alongwith undivided proportionate share of land and also a direction upon the OPs to compensation to the tune of Rs.50,000/- for harassment and mental agony and litigation cost.

            Facts in brief are that OP No.3 & 4 are land owners in respect of 4 kottahs, 10 chittakas and 4 sq.ft. and within KMC Ward No.97 at Manik Bandopadhyay Sarani, now Moore Avenue, P.S.-Regent Park. Owners entered into a development agreement with OP No.1 & 2 and also executed power of attorney in their favour. OP No.3 & 4 convinced the Complainant to purchase one flat being flat No.A at Ground floor at north east side measuring  500 sq.ft. super built up area in the said building from the owner’s allocation at a price of Rs.10,00,000/-. Accordingly, Complainant entered into an agreement for sale on 2^nd December, 2013 of the flat No.GB in ground floor measuring 700 sq.ft. super built up area with undivided proportionate share.

            It was agreed between the parties that flat shall be completed within 24 months from the date of the agreement. Thereafter, owners entered into one supplementary agreement on 6.9.2009 with the developer and the owner’s allocation was changed and one flat at 1^st floor 1B measuring 500 sq.ft. built up area and another flat 2B at the 2^nd floor measuring 500 sq.ft. and one flat in ground floor measuring 500 sq.ft. fell  into the owner’s share. Flat No.GB in the ground floor was of 500 sq.ft. became 700 sq.ft built up area  was constructed. Complainant being the purchaser of a flat GB in the north eastern side measuring 700 sq.ft. super built up area agreed to purchase it at a total consideration of Rs.10,00,000/-. Complainant paid total consideration money in terms of the agreement dt.2.12.2013. OP No.1 & 2 delivered the physical possession to the Complainant on 15^th June, 2016 vide letter of possession dt.15.6.2016 and Complainant is in possession of the flat despite request OPs did not make conveyance deed in favour of the Complainant and so, Complainant filed this complaint.

            OP No.1, 2 & 4 and Smt. Gita Chanda filed written version and denied the allegations of the complaint. They have stated that the complaint is not maintainable. They have admitted that OP No.3 & 4 are land owners. Complainant entered into an agreement for sale on 2.12.2013 in respect of the flat GB on the north east side measuring 700 sq.ft. at a consideration of Rs.10,00,000/-. Thereafter, owners agreed on a supplementary agreement with developer in 2009 and so the area of the different flats changed. Complainant paid the total consideration money on 2^nd December, 2013. OP No.1 & 2 handed over delivery of possession. Since Complainant did not arrange registration of deed of conveyance due to financial ability, deed of conveyance could not be made. OPs are always ready and willing to make conveyance deed. Except this the OPs have denied the allegations.

Decision with reasons

            Complainant filed affidavit-in-chief against which OPs did not file questionnaire. Thereafter, OPs filed evidence against which Complainant filed questionnaire and OP No.3 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, it appears that Complainant has prayed for making conveyance deed in his favour. Further, written version makes it clear that there is no denial of the fact of making payment by the Complainant to the OPs. OPs have also stated they are willing to make conveyance deed. They have further stated that deed could not be made because Complainant failed to arrange for money required for registration. So, we are of the view that prayer of the Complainant for making a conveyance deed can be allowed. So far as award of compensation and litigation cost are concerned, these cannot be awarded because Complainant could not arrange money for registration.

            Hence,

ordered

            CC/64/2017 is allowed on contest. OP No.1 and OP No.2 are directed to make deed of conveyance in favour of the Complainant in terms of agreement for sale dt.2.12.2013 within three months of this order, in default the deed shall be made by the process of law.