Judgment : Dt.6.11.2017

Shri S. K. Verma, President.

            This is a complaint made by one Barun Kumar Dutta, son of Late Tarapada Dutta of 1362, Mahendra Banerjee Road, P.S.-Parnasree, Kolkata-700 060, against M/s A. G. Construction, a partnership firm having its registered office at 1552,  Mahendra Banerjee Road, P.S.-Parnasree, Kolkata-700 060, OP No.1, Bachhu Das, son of Late Hiralal Das, 629, Ram Krishna Pally, P.S.-Parnasree, Kolkata-700 060, OP No.2, Debabrata Acharjee, son of Late Ghanendra Kumar Acharjee, 2/53, Rabindra Nagar, P.S.-Parnasree, Kolkata-700 060, OP No.3, Supravat Ghosh, son of Late Dilip Kumar Ghosh, 261B, R.K.Pally, P.S.-Parnasree, Kolkata-700 060, OP No.4 and Siddhartha Mustafi, son of late Amarendra Nath Mustafi of 30, Kazipara Road, P.S.-Parnasree, Kolkata-700 060, OP No.5, praying for passing an order upon the O.P. to hand over the care taker room defined as common area in the development agreement, for passing an order uon the OP to pay the rates and taxes of the K.M.C. till delivery of possession and for passing an order upon the OP to complete the boundary wall, meter room, etc. within the time and for passing an order for compensation for mental agony and short coming to the tune of Rs.2,00,000/- and litigation cost of Rs.20,000/-.

            Facts in brief are that Complainant is one of the co-owners out of five. OP No.1 is a partnership firm constituted by four partners viz. Sri Bachhu Das, Sri Debabrata Acharjee, Supravat Ghosh and Sri Siddhartha Mustafi of 1552, Mahendra Banerjee Road, P.S.-Parnasree, Kolkata-700 060.

            Complainant with other owners jointly entered into a development agreement with the OP No.1 represented by its partners. OP No.2 to 5 with a view to develop the said land by way of constructing a G + 3 storied building with several self contained residential flats on 20.7.2011. Complainant along with other co-owners jointly executed a power of attorney in favour of the said partners, being the developer on 18.12.2012. The power of attorney was duly registered on 18.12.2012. As per the said development agreement dt.20.7.2011 the G+3 storied building was to be constructed as per building plan sanctioned by the KMC. A caretaker room with toilet facilities on the ground floor was to be constructed within the meaning of common facilities. On the ground floor of G+3 storied building there will be only one caretaker room and car parking space as per sanction plan of the KMC and also surrounding boundary wall has to be completed. In addition, meter room, sewerage system were to be constructed by the developer, it was also agreed that within 24 months of signing the development agreement, OP developer shall hand over the possession to the co-owners. The development agreement was executed on 20.7.2011 and the possession of the flat was handed over to the co-owners in the month of September, 2015, after about four years. Developer did not provide any letter of possession in favour of the Complainant in respect of the flat measuring 550 sq.ft. Complainant made request to the OP on several occasion to give the letter of possession of the said flat. But they declined to issue the same. It was stipulated in the development agreement that the developer shall be liable to pay the rates and t axes of the KMC. However, after taking possession of the flat the Complainant asked Xerox copy of the tax payment receipt of the KMC, so that Complainant apply for mutation. In the development agreement it was clearly stipulated that caretaker room with toilet facilities on the ground floor is the common amenity. KMC sanctioned the plan upon which the building was constructed. There were some alterations which were later on corrected. OP did not provide completion certificate. So Complainant filed this case.

            OP filed written version and denied the material allegations of the complaint. They have denied the allegations made by the Complainant. There is neither any deficiency in services nor any circumstance to prove unfair trade practice on the part of the OP. So, they have prayed for dismissal of the complaint.

Decision with reasons

             Complainant filed affidavit-in-chief to which OP filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire to which OP 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 handing over the caretaker room defined as common area in the development agreement.

            In this regard, on perusal of the cause title of the complaint, it appears that Complainant is Barun Kumar Dutta. There is no averment that Barun Kumar Dutta is representative on behalf of all the occupants of G+3 building. Furthermore Ld. Advocate for OP drew the attention of this Forum towards the letter of possession issued on 12.6.2015 to all the co-owners. Ld. Advocate also drew the attention towards the deed of partition on 19.2.2016, which reveals that all the co-owners made parties of the flats as per their conveyance. By drawing the attention of this Forum, Ld. Advocate submitted that the partition has to be made by the co-owners and so it cannot be said that Complainant is representative of other co-owners. Further, he submitted that there is no dispute that caretaker room is common area and is the property of the flat-owners and Complainant cannot take his claim over it by any stretch of imagination. Ld.Advocate for Complainant did not draw the attention of this Forum towards any authority which was in favour of his client for claiming over the caretaker room on the strength of which his client has filed this complaint and prayed for handing over the care taker room. Accordingly, there is no ground to allow this prayer.

            Complainant has prayed for passing an order upon the OP to pay the rates and takes of the KMC till delivery of the possession of the flat. Admittedly the flat was handed over possession to the co-owners on 12.6.2015. Complainant did not show that between the date of execution of the development agreement and the date of handing over of the possession to co-owners. OP did not pay taxes to the Municipal Corporation. At the time of argument Ld. Advocate for Complainant failed to establish that OP did not pay the rates and taxes to the KMC for the period during which they were on possession of the land. On the contrary, Ld. Advocate for OP submitted that his client has already paid the taxes of KMC upto the date of handing over of the possession. Accordingly, this prayer cannot be allowed.

            Complainant has prayed for completing the boundary wall, meter room, etc. This prayer at the outset appears to be vague and ambiguous because if boundary wall, meter room were duly constructed, the question of taking over possession of the co-owners of the respective flats do not arise. It is beyond contemplations that an owner of a flat will take possession without the facility of electricity in his flat or even in the common areas. For the sake of argument, if it is accepted that meter room was not provided to the Complainant and he took possession on 12.6.2015 there is no ground as to why he filed this complaint after a lapse of about 1½ years. Accordingly, we find that the prayer of completion of boundary wall and meter room is a frivolous prayer and there is no question of allowing it.          

            Complainant has prayed for compensation of Rs.2,00,000/- for mental agony, short-coming in the service performance and harassment. From the above discussion, it is clear that Complainant failed to prove the allegations which he brought in the complaint and could not substantiate the allegations, from the documents filed, evidences and questionnaire and reply, filed on this behalf.

                Accordingly, the question of awarding compensation to the Complainant does not arise.

            Complainant has also prayed for litigation cost of Rs.20,000/-. On perusal of the record as well as evidence, questionnaire and reply of the respective parties, it appears that there was no ground for filing this complaint and so the question of award of litigation cost is beyond imagination. At this stage, Ld. Advocate for OP submitted that this complaint is a vexatious one and this Forum can hold this. In our view it cannot be observed because a party when approaching any court or Forum remains convinced of his some right for vindication for which he approaches this court or forum. So, under such analogy we do not think fit to hold this complaint as vexatious.

            Hence,

ordered

            CC/27/2017 and the same is dismissed on contest.