Judgment : Dt.18.12.2017

Shri S. K. Verma, President

            This is a complaint made by one Sri Nilratan Saha, son of Late Gurudas Saha, residing at Habra, Deshbandhu Park, P.O. & P.S.- Habra, PIN-743 263, North 24-Parganas against M/s AIM Associates, 45B, Maharaja Tagore Road, Ground floor, Dhakuria, P.S.-Lake, P.O.- Dhakuria, Kolkata-700 031, OP No.1, Sri Sujit Kumar Saha, son of Dr. K. C. Saha, 45B, Maharaja Tagore Road, Ground floor, Dhakuria, P.S.-Lake, P.O.- Dhakuria, Kolkata-700 031, OP No.2, Sri Sinchan Sinha, son of Amal Kumar Sinha, 44/2/52, Jheel Road, P.S.-Kasba now Garfa, Kolkata-700 075, OP No.3, Sri Arobindo Daw, son of Late Becharam Daw, 12/5, Doctor Lane, P.S.-Taltala, Kolkata-700 014, OP No.4, Sri Chandan Kumar Dey, son of Late Suresh Chandra Dey, 2D,Ram Narayan Motilal Lane, P.S.-Muchipara, Kolkata-700 014 , OP No.5, Smt. Usha Das, wife of Late Gouranga Das, 30, Purbahal Lalbahadur Sarani, P.S.-Garfa, P.O-Haltu, Kolkata-700 078, OP No.6, Smt. Puspa Das, wife of Late Rabindra Chandra Das, 30, Purbahal Lalbahadur Sarani, P.S.-Garfa, P.O-Haltu, Kolkata-700 078, OP No.7, Smt. Maya Dey, wife of Dulal Chandra Dey, 30, Purbahal Lalbahadur Sarani, P.S.-Garfa, P.O-Haltu, Kolkata-700 078, OP No.8 and Sri Goutam Chakraborty, son of late Ramesh Chandra Chakraborty, 30, Purbahal Lalbahadur Sarani, P.S.-Garfa, P.O-Haltu, Kolkata-700 078, OP No.9 praying for a direction upon the O.P. either to register and deliver the flat or to return the earnest money amounting to Rs.5,20,500/- and further direction to comply the terms and conditions of agreement for sale and direction to OPs to pay the expenditure of all legal works and deliver all the relevant documents like title deed, KMC Tax bill, KMC mutation, BL & LRO mutation, Voter ID, Aadhaar Card, etc. and to pay compensation of Rs.1,50,000/-.

            Facts in brief are that OP No.1 is a developer represented by its artners OP No.2 to 5 and OP No.6 to 8 are land owners of the property and OP No.9 is occupier of the flat. Complainant contacted with the OPs and entered into an agreement for sale for purchase of self contained residential flat, ground floor, Southern facing being No.G-1 measuring 440 sq.ft. at a total consideration of Rs.8,00,000/-. Complainant paid Rs.5,20,000/- out of Rs.8,00,000/- at the office of OPs. At the time of execution of agreement, OPs promised to register and develop the flat and also assured to give all relevant papers. But, the OP did not comply the terms and conditions of the agreement. Complainant personally visited OP, but surprisingly due to some ill intention, OPs refused to meet with Complainant. Thereafter, Complainant finding no other alternative, lodged complaint with local authorities but nothing was done. So, Complainant filed this case.

            OP No.2, 4, 5 & 9 filed written version and denied the allegations of the complaint. Further, they have stated that OP No.1 to 5 being the partners of developer firm did not receive any consideration and hence they are obliged to perform their part of the contract. They are willing to execute deed of conveyance in favour of the Complainant. So, they prayed dismissal of the complaint.

            OP No.3 filed separate written version and denied all the allegations of the complaint. With specific denials, this OP also prayed for dismissal of the complaint. Other OPs did not contest the case by filing written version and so the case is heard ex-parte against OP No.6, 7 & 8.

Decision with reasons

            Complainant filed a petition praying for treating the petition of complaint as affidavit-in-chief to which OP No.2, 4, 5 & 9 filed questionnaire against which Complainant filed affidavit-in-reply. OP No.2, 4, 5 & 9 filed a petition praying for treating written version as affidavit-in-chief against which Complainant filed questionnaire to which OP No.2, 4, 5 & 9 filed affidavit-in-reply.

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

            In this regard, it appears that Complainant has prayed for possession and registration of the flat which is mentioned in schedule of the complaint petition. Complainant has also prayed for documents from the OPs.

            In this regard, it appears that Complainant has filed Xerox copy of the agreement for sale which is between the Complainant and the OPs. Further, it appears that schedule of this agreement for sale describes the flat in question, however there is no boundary mentioned of the flat. Further, it appears that in the written version, OPs have not challenged the payment made by Complainant even OP No.2 to 5 are ready and willing to make conveyance deed in favour of the Complainant.

            So, we find that there is no ground as to why the prayer for refund of the amount paid by the Complainant be not returned. It appears that Complainant filed this case on 10.2.2017 and he entered into an agreement for sale with OPs on 26.6.2016.That means after a lapse of about 8 months, Complainant filed this case.

            As per paragraph 3 of the agreement for sale, it appears that the OPs were to register the deed of conveyance in favour of Complainant within 10.7.2016. This makes it clear that the flat was ready and that is why there was a term that OPs will make conveyance deed just after 10 days of the execution of agreement for sale. There is no development agreement filed on the record.

             As such, we are of the view that the question of deficiency in service does not arise and in that event, Complainant does not become consumer. So, we are of the view that there is no ground to grant any relief to the Complainant.

Hence,

ordered

                CC/84/2017 and the same is dismissed on contest against OP No.2, 3, 4, 5 & 9 and ex-parte against others.