Judgment : 28.2.2017

            This is a complaint made by one Ahindra Mazumder, son of Late J. C. Mazumder, Eden III-C/104, Hiranandani Garden, Powai, Mumbai-400 076, P.S.-Powai against (1) M/s Tulip Construction Co., represented by proprietor Anup Choudhury, 9A, West Road, P.S.- Purba Jadavpore, Kolkata-700 075, OP No.1, (2) Anup Choudhury, 9A, West Road, P.S.- Purba Jadavpore, Kolkata-700 075, OP No.2 and (3) Binapani Chattopadhyay, 67, New Satoshpur Main Road, P.S.- Survey Park, Kolkata, praying for passing an order holding he OP liable for deficiency in service and unfair trade practice and also for a direction upon the OP for registering the flat in favour of the petitioner and other orders.

            Facts in brief are that Complainant entered into an agreement for purchasing a flat on the 2^nd floor of the building being developed having an area of 820 sq.ft. on a consideration money of Rs.7,15,000/-. Complainant paid the entire consideration money. But after a long delay finally on 12.9.2015 OP No.2 handed over possession. Complainant requested OP to make conveyance deed but of no use. Complainant resides at Mumbai for his job purposes and taking this advantage OP did not make the deed. So, Complainant filed this complaint.

            OP No.1 & 2 filed written version where they have denied all the material allegations of the complaint. Further, they have stated that they are ready to make conveyance deed. But, since OP No.3 did not cooperate with them in doing so. They have also stated that they are ready to register the deed in favour of the Complainant. OP No.3 only has filed separate written version and has stated that the complaint petition is not maintainable. She has denied specifically all the allegations of the complaint. Further, she has stated that there is a connivance between the OP No.1 & 2. She has also stated that OP No.1 & 2 has filed a title suit against OP No.3 before the Ld. 1^st Civil Judge (Junior Division) at Alipore and Hon’ble High Court in a writ petition dismissed the invoking the writ arbitration clause . She has also stated that OP No.1 & 2 are in collusion with the Complainant. So, she has prayed for dismissal of the complaint.

Decision with reasons

            Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against which OPs have filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly, OPs have filed affidavit-in-chief against which Complainant has filed questionnaire to which OPs have filed affidavit-in-reply.

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

            On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for passing a direction upon the OPs for making registration of the flat. Further, it appears on perusal of the copy of the agreement for sale that this agreement for sale was entered into in 1999, wherein the OPs agreed to sell the flat. It is not disputed that Complainant is in possession of the said flat. It appears that the dispute is between OP No.3 and OP No.1 & 2 and due to which registration could not be made. Further, it appears from the copy of order of Civil Judge (Jr. Division) that Ld. Civil Judge declared that parties are at liberty to refer the dispute to arbitration.

            The main question is that when the Complainant is in possession after paying full consideration money there is nothing which can prevent in making registration deed in favour of the Complainant. As such, we are of the view that if registration deed is made it will not prejudice either of the OPs in any way.

            Hence,

ordered

            The CC/314/2016 and the same is allowed on contest in part. OPs are directed to make conveyance deed within six months of this order.