Judgment : Dt.6.9.2017

Shri S. K. Verma, President.

            This is a complaint made by one Darshanik Roy, son of Sri Dibakar Roy, residing at D/85, Ramkrishna Upanibesah, P.S.-Jadavpur, Kolkata-32  against M/s Bakul Associates, a partnership firm having its registered office at 4/102 Kali Kumar Majumder Road, Santoshpur, P.S.-Purba Jadavpur, Kolkata-75, OP No.1, 2(a) Smt. Dhira Dhar, (b) Sri Tapan Dhar, (c) Sri Samar Dhar, Sri Amar Dhar – all sons of Late Subal Dhar, residing at 63, K. P. Roy Lane, Kolkata-700 078, (d) Smt. Sikha Das, wife of Sri Kartick Chandra Das, 63, K.P.Roy Lane, Kolkata-78, & (e) Smt. Papiya Chakraborty, wife of Sri Rabin Chakraborty, 28J/1B, Naktala, Kolkata-84, praying for a direction upon the O.P. to execute and register the deed of conveyance in respect of the second schedule car parking space within a specific period in favour of the Complainant and another direction upon the OPs to handover the possession of the car parking space as mentioned in the 2^nd schedule and compensation of Rs.1,00,000/- and litigation cost of Rs.20,000/-.

            Facts in brief are that OP No.1 is a reputed promoter and carrying on business of development and construction of the building. OP No.2 series are the owners in respect of the land measuring 3 cottahs 14 chittacks 4 sq.ft. more or less with two storied building standing upon the premises No.63, K.P.Roy Lane, Kolkata-78, situated under Mouza Kasba, J.L.No.13, Touzi No.155, Khatian No.112, 135, Sub Khatian No.135/1, Dag No.2992, P.S.- Tollygunge within KMC Ward No.105. OP No.2 series and OP No.1, Bakul Associates entered into a development agreement on 21.9.2008 for construction of a multi storied building over the 1^st schedule properties. Land owner and OP No.1, also executed a registered general power of attorney in favour of the developer and such power of attorney was registered in the office of the Registrar of Assurance in 2009. Complainant requested the developer to provide one car parking space measuring about 140 sq.ft. at the ground floor south east corner. The developer agreed with the proposal of the Complainant and entered into a sale agreement dt.28.1.2016 for sale and transfer of one car parking space measuring about 140 sq.ft. at the ground floor south east corner with undivided proportionate share of the 1^st schedule in the premises No.63, K. P. Lane, P.S.-Garfa at a total consideration of Rs.2,26,000/-. In terms of the sale agreement dt.28.1.2016, Complainant paid the total consideration money. On several occasions Complainant requested the OP to handover the possession of the schedule car parking space in favour of the Complainant and also requested the OP to execute the registered deed of conveyance in favour of the Complainant. But OP did not oblige. OP in collusion and conspiracy with each other are avoiding to handover the car parking space and they are not willing to hand over the car parking space to the Complainant in terms of the agreement for sale. In terms of the said agreement for sale OPs are avoiding and neglecting to execute the necessary deed of conveyance in respect of the car parking space in favour of the Complainant till this date. The Complainant at least 10 times requested the OP and lastly on 30.10.2016 finally requested the OP to handover the possession of the car parking space. But of no use. So, Complainant filed this case.

            OP Samar Dhar, Amar Dhar and Papiya Chakraborty filed written version and denied the allegations of the complaint. It is their allegations that Complainant has made attempt to establish a story which is not believable. Further, it is stated that the sale agreement dt.28.1.2016 between the Complainant and OP No.1 is not within the knowledge of these OPs. It is also stated that Smt. Dhira Dhar who made power of attorney in favour of the OP No.1 died on 23.7.2011 and therefore the power of attorney given to Sanjib Mitra and Santanu Bhowmik automatically got revoked and so the question of entering into agreement for sale between OP No.1 and Complainant, does not arise. In addition these OPs have denied all the allegations and have stated that the complaint is not maintainable.

            OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against OP No.1.

Decision with reasons

            Complainant files affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against this OP Samar Dhar, Amar Dhar and Papiya Chakraborty filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, this OP filed evidence against which Complainant filed questionnaire and they 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 a direction upon OP to execute a registered deed of conveyance in respect of the 2^nd schedule of the car parking space and direction upon the OPs to handover possession of the car parking space and to pay compensation to the tune of Rs.1,00,000/-, another Rs.1,00,000/- for unfair trade practice and Rs.20,000/- as litigation cost.

            In this regard, it appears that there took place an agreement between the owners and developers for making the construction in 2008 which is reflected in the Xerox copy of the development agreement filed on behalf of the Complainant. Further, it appears that the Xerox copy of power of attorney has been filed by Complainant in order to establish that developer has power of attorney to enter into the agreement. This power of attorney was entered into between developer and owners in 2009. The Agreement for sale has been filed which is between Sanjib Mitra and the Complainant. So, the name of Samar Dhar and Amar Dhar appear to be in this agreement for sale. Surprisingly, neither Samar Dhar and nor Amar Dhar has signed on this agreement for sale anywhere. There is no receipt filed showing the payment of money to the developer. Only on the last page of the agreement for sale it is written that Sanjib Mitra received Rs.2,26,000/- as the consideration money for the car parking space.

            Further, on perusal of the agreement for sale, it appears that in the said agreement it is mentioned that the developer started to construct the proposed G + 3multi storied building on the premises in 2016 because this agreement for sale was entered into between Complainant and OP No.1 in 2016 and Complainant filed this case on 21.11.2016 i.e. after about 10 months of this agreement for sale. This reveals that at the time of agreement between them the car parking space as alleged was complete. Further, it appears that in the agreement for sale it is mentioned that on the date of agreement for sale, Complainant paid the entire consideration money i.e. Rs.2,26,000/-. It is also stated that developer handed over possession on the date of execution of the sale agreement which is reflected from paragraph 5 of page 7 of the agreement for sale. In view of this, if the possession was handed over in January, 2016 and they agreed to make conveyance deed within three months of this agreement, there does not appear any ground as to why the conveyance deed was not made.

            Since contesting parties have not signed on the agreement they are not bound by it. Further, there is no explanation by the Complainant as to why he entered into the agreement for sale with the developer knowingly well that the lady who made power of attorney in favour of the developer was died.

            Accordingly, we find that there is no ground to allow this complaint, because Complainant did not approach this Forum with clean hands.

            Hence,

ordered

            CC/537/2016 and the same is dismissed ex-parte.