Judgment dated 07-06-2016
This is a complaint made by Shri Bhola Singh against OPs four in numbers namely, M/s. Mallington Project Private Limited, a company incorporated under the Companies Act, 1956 having its registered office at 2B, Dinesh Das Sarani, New Alipore Police Station, New Alipore, Kolkata – 700 053, Shri Indrajit Chatterjee son of late Sadhangshu Mohan Chatterjee residing at 8, Sodepur Road, P.S. Haridevpur, Shri Monojil Chatterjee residing at Writer’s Para Monisha Mandir, P.S. Haridevpur, Kolkata – 700 082 and Shri Premjit Chatterjee residing at 186/N, Ustad Amir Khan Sarani, P.S. Haridevpur praying for an order directing the OPs to execute and registered Deed of Conveyance in the name of the Complaint in respect of a flat measuring about 600 Sq.ft. super built area consisting 2(Two) Bed Rooms, 1 (One) Drawing-cum-Dinning space, 1(One) Kitchen, 2 (Two) Toilets and 1(One) Verandah to be constructed at third floor of premises No.134, Sodepur First Lane, P.S. Haridevpur, an order directing the OP to complete the building in all respect and an order directing OPs to pay compensation of Rs.5,00,000/- for mental agony, harassment and litigation cost of Rs.25,000/-.
Facts in brief are that Complainant entered into an agreement with OP No.1 to 4 on 26-08-2013 to purchase a self contained 3rd. floor flat mentioned above with one car parking in the ground floor on a total consideration of Rs.14 lakhs payable in two installments of which Rs.2,00,000/- was to be paid before the execution of agreement as booking money and balance consideration of Rs.12,00,000/- before the execution and registration of the sale deed. In terms of the said agreement OP No.1 was under obligation to complete said flat and hand over it within sixteen months from 26-11-2014 but construction of entire building was not completed. Complainant in urgent need requested OP No.1 to hand over the flat in unfinished condition and OP No.1 handed over possession of the flat and car parking on 19-12.2013. Complainant paid only Rs.7,00,000/- and entered into possession. But OP did not execute the Deed of Conveyance. Complainant made several representations to the OP for executing the deed but of no use. OP No.2 to 4 illegally revoked power of attorney made in favour of OP No.1. So, Complainant filed this case.
On 28-10-2015 the complaint was admitted and notices were issued. OPs filed written version on 03-12-2015. Thereafter, Complainant filed affidavit-in-chief and the case was fixed for filing questionnaire on 27-01-2016. OP No.1 filed questionnaire and again a date was fixed for filing affidavit-in-chief against OP No.2 to 4. Thereafter, OP No.1 filed evidence on affidavit and the case was fixed for filing affidavit-in-reply.
In the meantime Complainant filed also a petition under Section 13 3(B) of the Consumer Protection Act which was heard with the trial.
OP No.1 filed written version and denied all the allegations of the complaint. Further OP No.1 has submitted that due to revocation of power of attorney to the OP No.1 the deed could not be registered. He has also submitted that title suit being no. 12464 is pending before Ld. Civil Judge Senior Division 7th Court. In the circumstances OP No.1 has prayed for dismissal of this case. OP No.2, 3 & 4 filed written version wherein they have stated that OP No.1 entered into joint venture agreement with the Complainant and he was to hand over the flat measuring 515 Sq. ft. The owner’s allocation was to handed over by 20-10-2013 but OP No.1 failed to deliver the owners allocation. So they were compelled to revoke the power of attorney. Further they have alleged that developer handed over the flat and car parking after receiving Rs.2,00,000/- and he kept Rs.12 lakhs with him. So they prayed for dismissal of the complaint.
Decisions with reasons
Complainant has filed affidavit-in-chief wherein he has asserted the facts mentioned in the complaint. Against this OP No.1 has filed questionnaire. OP No.2 to 4 also filed separate questionnaire. To this Complainant has replied. OP No.1 has filed evidence-on-affidavit and reiterated the facts mentioned in the written version. Against this Complainant has filed questionnaire. OP 2, 3 & 4 also filed evidence-on-affidavit. Against this also Complainant filed questionnaire. OP No.2 to 4 replied to the questionnaire of Complainant. Complainant has filed written argument. OP No.1 has answered the questionnaire of Complainant.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint it appears that Complainant has prayed for a direction upon OPs to execute and register the Deed of Conveyance in the name of Complainant in respect of the flat. Further, it appears that in the complaint petition Complainant has paid only Rs.2,00,000/-. This fact Complainant has reiterated in the affidavit-in-chief that till now he has paid only Rs.2,00,000/-. OP No.1 has admitted in his written version that Complainant has paid only Rs.2.00,000/- to him and he handed over the possession to Complainant.
However, on perusal of the agreement to sale it appears that as per the agreement Rs.2,00,000/- was to be paid at the time of agreement which has been done. But further it appears that Rs.12,00,000/- has to be paid on the date of registration and possession of the said flat. Possession has been handed over to the Complainant without receiving Rs.12,00,000/-and Rs.12,00,000/- was to be paid on the date of possession and registration.
There is no explanation why OP No.1 handed over possession of the flat to Complainant without taking any money. As per the agreement the registration and possession was to be done on the same day which has not been done. This lapse on the part of the OP No.1 and goes in favour of Complainant because he got the possession without paying anything and on the basis of booking money only which is generally unheard. This reflects a collusion between Complainant and OP No.1.
Further, agreement for sale reveals that this agreement was entered into between Complainant and OP No.1.No doubt it names 2 to 4, no signature of any OP from 2 to 4 is appearing on the agreement for sale. Accordingly, it is clear that by this agreement OP No.2 to 4 are not bound.
OP No.1 in his affidavit-in-chief and questionnaires has made out a point that OP No.2 to 4 cancelled his power of attorney and so delay took place in completing the building. On the contrary OP No.2 to 4 have alleged that as per the agreement OP No.1 was to complete owner’s portion first and hand it over to them which OP NO.1 did not do and for that reason OP No.2 to 4 were compelled to cancel the power of attorney.
Complainant filed this complaint for a direction for registration and execution of deed without paying any money except booking money to OP No.1 and OP No.1 also handed over possession which is very surprising and it can be said that Complainant did not file this complaint with clean hands.
Law is settled that a party is entitled to relief if he approaches the court with clean hands. Here what prompted OP No.1 to hand over possession to Complainant is known to them only. As such it appears that Complainant is not entitled to the relief for a direction upon OP for execution and registration of the deed. Since other OP No.2 to 4 has not signed the agreement for sale, they are not bound by it.
Complainant has prayed for a direction upon OPs to complete the building in all respect. Here it is noteworthy that completion of the building is the task of OP No.1 and since Complainant is in glove in hands with OP No.1 and got possession, he can get the work completed because only by paying Rs.2,00,000/- he has been handed over possession of the flat and other OPs have nothing to do with it.
So far prayer ‘C’ is concerned where Complainant has asked for a direction upon the OP to pay compensation of Rs.5,00,000/- for mental agony and harassment, it is clear that there was no mental agony and harassment to Complainant because he has managed to get possession of the flat after paying only Rs.2,00,000/- which is booking money and which is unheard.
Similarly the question of payment of litigation cost to Complainant does not arise because the materials on record have made it clear that this complaint is offshoot of a collusion between Complainant and OP No.1.
Hence,
O R D E R E D
CC/10/2015 and the same is dismissed on contest.