This is a complaint made by one Tapan Sen, son of Late Anil Sen, resident of 169A, Lake Gardens, 2nd floor, P.S.-Lake, Kolkata-700 045 against (1) Mr. Bibek Chatterjee, developer having its office at B-281, Lake Gardens, P.S.-Lake, Kolkata-700 045, OP No.1, (2) Sri Subrata Ghosh, son of Late Salim Prasad Ghosh, OP No.2, (3) Smt.Sipra Mitra, wife of Sri Raj Prasanta Mitra, OP No.3, (4) Smt. Sulekha Dutta, wife of Sri Tapan Kumar Dutta, OP No.4, all are residing at Premises No.169A, Lake Gardens, P.S.-Lake, Kolkata-700 045, praying for (a) executing a registered deed of sale in favour of the Complainant, in respect of the property described in the schedule, (b) a direction to execute a registered deed of sale within a specified time failing which the said sale deed would be executed through Ld. Forum and (c ) another direction for compensation of Rs.1,00,000/- and Rs.20,000/- as litigation cost.
Facts in brief are that the Complainant intended to purchase a flat for his family members and he contacted the OP. OP No.1 is a developer and runs a proprietorship firm namely M/s Bibek Chatterjee. OP No.2, 3 & 4 are landlord and in terms of the agreement they are owners. OP No.1 entered into an agreement for sale on 5.9.2006 to purchase a residential flat, measuring 1050 sq.ft. on the 2nd floor, 169A, Lake Gardens, and initial booking was done on 5.9.2006 and in terms of the said agreement the flat was to be handed over within eighteen months.
As per the terms of the agreement the total consideration money was Rs.12,00,000/-. But, Complainant paid Rs.14,10,000/- on different dates as mentioned in the complaint petition. OPs handed over possession to the Complainant, but, did not execute the registered sale deed.
Complainant paid total Rs.14,10,000/- which OPs have acknowledged by money receipts. Complainant intimated the OPs to make the deed of conveyance and lastly on 7.5.2016. But, OPs did not make the deed of conveyance. So, Complainant filed this case.
OP No.2, 3 & 4 filed written version and denied all the allegations of the Complainant. Further, they have alleged that Complainant did not come to the Forum in clean hands. They have denied allegations of the Complainant para-wise.
Further, OPs have stated that Complainant is not entitled to get any relief as prayed. The case is based on false grounds and this complaint has been filed for un-lawful gains. So, these OPs have prayed for dismissal of the complaint.
OP No.1 has filed written version and has denied all the allegations of the complaint. Further, OP No.1 has stated the he is a reputed developer and OP No.2, 3 & 4 are the landlords in respect of the premises No.169A, Lake Gardens. Further, he has stated that Complainant purchased the said flat and he is in possession of the said flat. This complaint has been filed by the Complainant in order to harass OP No.1 Bibek Chatterjee. OP No.2 & 3 never executed a registered general power of attorney in favour of the OP No.1 and that is why he is not competent to make the conveyance deed. However, as per agreement the purchaser is entitled to the flat measuring 1050 sq.ft. But, OP No.1 has delivered a flat measuring 1330 sq.ft., approximately 280 sq.ft. extra and also open terrace was added with the flat at an extra cost of Rs.5,60,000/-.
OP No.1 on good faith handed over the possession. At present Rs.7,60,000/- is due from the purchaser. OP No.1 denied that he was not ready to execute the deed. He was always willing to cooperate with the Complainant for any legal act. Further, he has prayed that this Forum must direct OP No.2, 3 & 4 to make the conveyance deed.
Decision with reasons :
Complainant filed affidavit-in-chief where he has reiterated the facts mentioned in the complaint petition. OP No.2, 3 & 4 have put questionnaires to the Complainant’s affidavit-in-chief. OP No.1 also filed separate questionnaire to the affidavit-in-chief of the Complainant. OPs also filed affidavit-in-chief against which Complainant filed questionnaire and then OPs filed affidavit-in-reply.
Decision with reasons
Main point for determination is whether Complainant is entitled to the reliefs.
On perusal of the complaint petition, it appears that the first relief is a direction upon the OPs for executing a registered deed for sale in favour of the Complainant in respect of the property described in the schedule below.
Subject matter of complaint is a flat measuring of super built up area of 1050 sq.ft. with proportionate share of land in the common area on premises No. 169A, Lake Gardens, P.S.-Lake, Calcutta-700 045.
On perusal of the agreement for sale dt.5.9.2006, it appears that this is an agreement between M/s Bibek Chatterjee and Complainant Sri Tapan Sen. This agreement reveals that developer agreed to sale the built up area of 1050 sq.ft. to the purchaser. It was also agreed that on completion of the construction of the first floor, the vendor shall nominate the purchaser to the owners to transfer assign/convey an undivided proportionate share from the developer’s allocation.
Further, it appears that that this agreement for sale which has been filed by the Complainant and notices annexed dt,6.5.2016 wherein Complainant himself has stated that he entered into an agreement with the developer on 5.9.2006 where the developer agreed with him that he will execute the deed of conveyance within eighteen months from 5.9.2006.
Further, on perusal of the complaint petition, it appears that Complainant paid Rs.2,40,000/-on 31.8.2005, Rs.1,00,000/- on 5.9.2006, another Rs.1,25,000/- on 10.9.20o06 and on 30.9.2006 Rs.1,00,000/-, on 5.4.2007 Rs.1,00,000/-, on 5.11.2007 Rs.75,000/-, on 7.4.2008 Rs.70,000/-. This means that within the stipulated period of eighteen months Complainant paid only Rs.8,10,000/- out of Rs.12,00,000/-.
Further, Complainant had stated that in his complaint that OP handed over possession to the Complainant. But, Complainant has not mentioned the date on which he received the possession.
So, it appears that there is something which makes it clear that Complainant was handed over possession of the flat by the developer, OP No.1, even if the full payment was not made.
Further, if it is accepted that registration was to be made within eighteen months from the date of agreement, the question of giving payment to the OP No.1 by Complainant up to 1.11.2015 does not arise and such payment was made by the Complainant to the OP No.1 as alleged which is beyond the purview of the agreement for sale.
OP No.1 has alleged that still Rs.7,60,000/- is due to be paid by the Complainant to him. Now question arises that an agreement for sale made between Complainant, developer and one of the owners who is OP No.2 in this case. In September, 2006, in all probability the terms and condition for paying the money by Complainant to the OP cannot continue up to 1.11.2015, which is beyond the purview of agreement for sale. There is no ground s to why such situation arose when the allegation of Complainant is that he was handed over possession, but, registration has not been made even after lapse of 10 years.
We are afraid that such an agreement for sale and in pursuance of the agreement for sale the date of payment mentioned in the complaint petition does not reflect the consonance between the agreement for sale and the allegation of the complaint petition.
As such, we are of the view that there is something in between which Complainant has not disclosed and it can be safely said that he approached this Forum not in clean hands and so he is not entitled to any decree as prayed for.
Complainant has stated several judgements of National Commission and Supreme Court where the mandate is to register the conveyance deed. But the facts mentioned in this case are totally different from the allegations which Complainant has brought and which reflects from the agreement for sale, entered into between the parties.
In such circumstances, there is no ground to allow this complaint.
Hence,
ordered
CC/211/2016 is considered and dismissed on contest.
