Judgment : Dt.30.08.2017
Shri Satish Kumar Verma, President
This is a complaint made by (1) Sri Amit Kumar Ghosh, son of Late Anil Chandra Ghosh and (2) Smt. Alpana Ghosh, wife of Sri Amit Kumar Ghosh, both are residing at 1, Andul Raj Road, P.S.- Tollygunge, Kolkata-700 026 against M/s Mayank Multiplex Pvt. Ltd., praying for direction upon the OP to complete the execution and registration of the deed of conveyance of the shop room mentioned in the schedule below and direction upon the OP to pay Rs.30,000/- as litigation cost and compensation of Rs.1,00,000/- as compensation for mental agony and harassment and Rs.2,00,000/- as stamp duty and registration fee and another direction to pay a sum of Rs.2,39,000/- as compensation for delayed delivery of possession.
Facts in brief are that Complainant was a tenant in respect of premises No.1, Andul Raj Road, P.S.-Tollygunge, Kolkata-700 026 under the joint owners Smt. Latika Mitra and Sri Amitava Mitra. The shop room measuring about 330 sq.ft. super built up area, situated at the ground floor of the premises No. No.1, Andul Raj Road, P.S.-Tollygunge. Thereafter, joint owners viz. Smt. Latika Mitra and Amitava Mitra and others sold the premises including the said property to the OP through two separate deed of conveyances dt.19.4.2006. Thereafter, the Complainant became the tenant under the OP. In pursuance of the understanding, between the parties, they entered into an agreement for sale d t.20.3.2008 for purchasing the said property at a consideration of Rs.2,31,000/-. Complainant paid a sum of Rs.1,100/- by a cheque dt.20.3.2008, drawn on Bank of Baroda and also paid Rs.70,000/- by a cheque drawn on Central Bank of India, Kalighat Branch. Complainant again paid Rs.1,59,900/- by a cheque drawn on central Bank of India. Complainant, therefore paid the entire consideration amount. Complainants were provided with a temporary accommodation on 23.3.2008 for running the business. Complainants surrendered possession of the temporary accommodation in favour of the OP on 29.1.2012. OP delivered possession of the suit property in favour of the Complainants on 15.12.2011. As per terms of the agreement for sale dt.20.3.2008, the Complainants are entitled to damages to the tune of Rs.1,000/- per diem. Complainants requested the OP time and again to complete the execution and registration of the deed of conveyance. But OP did not obliged. So, Complainant filed this case.
OP filed written version wherein OP has denied all the allegations of the complaint petition. It is the positive case of the OP that Complainants were requested to pay the due of the Corporate Taxes and maintenance charges for their occupation in the said property which they did not pay. Since possession and carrying on the business. It is the mandatory obligation of the occupants to pay Corporation taxes and maintenance charges. OP has stated that Corporation Tax to the tune of Rs.23,463/- and maintenance charges of Rs.68,310/- are due to be paid by the Complainants. So, OP has prayed for dismissal of this case.
Decision with reasons
Complainants filed affidavit-in-chief wherein they have reiterated the facts mentioned in the complaint petition. Against this OP filed questionnaire to which Complainants filed affidavit-in-reply. Similarly, OP filed affidavit-in-chief to which Complainants filed questionnaire and OP filed affidavit-in-reply.
Main point for determination is whether Complainants are entitled to the relief as prayed for.
On perusal of the complaint petition, it appears that Complainants have prayed for execution and registration of the deed of conveyance of the shop room mentioned in the schedule below in their favour. On perusal of this schedule, it appears that schedule A is all that piece and parcel of land measuring 10 cottahs, 14 chittacks and 14 sq.ft. and it does not describe any shop room. Schedule B talks about one shop room having an area of 330 sq.ft. consisting of one room in the ground floor southern side of the proposed building with undivided impartible proportionate share in the land corresponding with common area facilities of the building. However, Schedule B does not specify the details in order to be clear because the boundary of schedule B is not mentioned. For the sake of argument, if a decree is awarded in favour of the Complainant over Schedule B, it will be an in-excuable decree and it would be infructuous exercise by the Forum. On perusal of the agreement for sale between the Complainants and the OP, it appears that by and large the contents mentioned in the complaint petition are narrated herein. However, here also in the 2nd schedule no boundary is mentioned. First schedule describes about the land of 10 cottahs 14 chittkas and 14 sq.ft. where the boundary is clearly mentioned. However, it has not been mentioned as to whether on this 10 cottahs the shop room is mentioned in schedule B is either located or situated.
As such, it is not identifiable. If Court and Tribunal hardly passes decree in favour of Court and if it is accepted from the agreement for sale which is a Xerox copy that there was an agreement between Complainants and OP about the purchase of shop room, the shop room being non-identifiable and ambiguous, cannot be a property for sale.
Furthermore, on perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply of the respective parties, it appears that OP has claimed Rs.91,773/- as a counter claim and interest @ 18% p.a. There is no provision in the Consumer Protection Act to provide any relief in the form of counter claim by any Forum.
As such, OP has made a prayer which appears to be groundless. Accordingly, we are of the view that Complainants failed to prove the allegations.
Hence,
ordered
CC/493/2016 and the same is dismissed on contest.
Accordingly MA/22/2017 is also disposed of.
