This is a complaint made by one Jakir Hossion Mondal son of Jamat Ali Mondal residing at A-22, Sukanta Pally, M.G.Road, P.S. Haridevpur, Kolkata-700082 against Sri Dipankar Gayen, Sri Prasanta Kumar Majhi, Sri Sindhu Baran Majhi, Smt. Aloka Majhi, Smt. Manjulika Majhi, Sri Sudipta Majhi, Smt. Saradia Garal, Smt. Srilekha Mondal and Smt. Nilima Makhal praying for a direction upon the OP to handover and deliver possession in respect of the flat on the south east corner on the 3rd floor measuring about 765 Sq. ft. super built up area with garage No.2 on the ground floor in terms of agreement for sale made between the parties and also execution of registered deed of conveyance in respect of the flat and garage and alternatively to compensate by money value for the present market price of the said flat and garage and compensation of Rs.5,00,000/- and litigation cost of Rs.1,00,000/-.
Facts, in brief, are that Complainant is carrying on business of building material and supplier of stone chips, bricks, sand etc. for earning his livelihood. OP No.1 is a developer and OP Nos. 2 to 9 are the owners of the land on which flat was to be constructed. OP Nos. 2 to 9 entered into a development agreement with OP No.1 on 20/4/2006. An agreement was entered into between OP No.1 and Complainant wherein OP No.1 developer and OP Nos.2 to 9 are the owners agreed to sale a flat measuring about 765 Sq. ft. super built up area for the consideration of Rs.4,50,000/- . Complainant paid Rs.1,00,000/- to the OP No.1 and OP No.1 acknowledged the receipt of this money. It was agreed that another Rs.3,50,000/- would be paid to the OP No.1 in terms of the agreement. It was further agreed that OP No.1 shall execute and register the Deed of Conveyance in favour of the Complainant preferably within May, 2007 on payment of rest of the consideration money.
It was also agreed that if the title of the land was found encumbered OP No.1 shall refund the advance money to the Complainant within 7 days on demand. In terms of sale agreement OP No.1 constructed the building G + 4. But despite request and persuasion OP No.1 did not hand over the possession of the flat in terms of the agreement and so the Complainant was compelled to file this complaint.
OP No.1 filed written version and denied all the material allegations of the complaint. It is denied that there took place an agreement between OP No.1 and Complainant. It is further denied that Complainant paid the money in terms of the agreement.
Other OPs also filed written version and denied the allegations of the complainant and prayed for dismissal of the case.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint. Against this OP filed questionnaire to which Complainant filed affidavit-in-reply.
Similarly, OP filed evidence against which Complainant filed questionnaire and 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 possession of the flat measuring about 765 Sq. ft. and garage No.2 and registration of conveyance deed of this flat.
On perusal of the agreement for sale which is Annexure ‘B’ of the Complainant. It appears that agreement has been signed by Dipankar Gayen as proprietor of the builders. No where the signature of the Complainant appears.
So far as payment made by Complainant to the OP No.1, it appears that a Xerox copy of the receipt has been filed showing that Rs.20,000/- was paid to the builders. Except this there is no document forthcoming to establish the facts of payment made by Complainant to the OP No.1.
As per complaint petition Complainant has made claim that he paid Rs.1,00,000/- and he agreed to pay another Rs.3,50,000/- in terms of agreement for sale. But surprisingly on perusal of the agreement for sale it appears that terms are there for payment but no document is filed to establish as to when and where Complainant made payment to the OP No.1 except the Xerox copy of the receipt of Rs.20,000/- . On page 3 of the alleged agreement for sale which was entered between parties on 20/4/2006. It appears that this mentioned that payment of Rs.1,25,000/- only. Below which OP No.1 has put his signature with stamp of the builders. The date put up is 28/9/2006. However it does not make clear who paid Rs.1,25,000/- to whom. Whether OP No.1 paid to Complainant or Complainant paid OP No.1.
As such the allegations which the Complainant has prayed do not appear to establish. Complainant has filed certain Xerox copy of document showing certain amounts. In our view these papers cannot establish that Complainant paid how much money to OP No.1.
Further coming on to the prayer portion particularly prayer ‘C’, it appears that Complainant has not mentioned praying for refund/return of any money. He has prayed alternatively for compensate him by money value of the present market price of the said flat and garage. This makes it clear that Complainant himself is not aware whether he paid money to OP No.1 and if paid how much he paid save and except one Xerox copy of receipt showing payment of Rs.20,000/-.
In the aforesaid facts and circumstances it is clear that Complainant failed to establish the allegations which he brought before this Forum and he is not entitled to any reliefs as prayed for.
Since he failed to make out the case for a direction upon OP No.1 for handing over possession and registration of flat, the question does not arise that Complainant is entitled for any compensation or litigation cost.
Hence,
O R D E R E D
RBT/CC/54/2016 and the same is dismissed on contest.
