Date of filing : 31.05.2018

Judgment : Dt.22.1.2019

Mrs. Sashi Kala Basu, Hon’ble President.

        This is a complaint filed by the complainant  Jahir Ali Mondal under  Section  12 of the Consumer Protection Act, 1986 against the Opposite Parties – (1) M/s. Minati Construction (2) Pradip Kumar Mukherjee (3) Ashok Kumar Mukherjee (4)Dilip Kumar Mukherjee (5) Mita Das (6)Gopa Banerjee (7) Pratima Ghosh (8) Poli Mukherjee alleging deficiency in service on their part.

          Complainant’s case in brief is that one Ramala Mukherjee  was the owner and possessor  of the land and building  situated at  50, Brahmapur under Police Station  Bansdroni. She entered into a development agreement with the OP No.1 to develop  the said  property  and also executed  Power of Attorney in their favour.  Complainant  entered into a sale agreement  with the  developer /OP No. 1 to purchase  a shop room in  the said building to be constructed,  measuring about 112 sq.ft. more or less  in the ground floor in the said premises  No. 50, Brahmapur, P S. Bansdroni at a total  consideration price of Rs. 4,50,000/-. Complainant paid  Rs. 4,00,000/-  out of the said  total consideration of Rs.4,50,000/-. The original owner Ramala Mukherjee died  leaving behind  Opposite Parties No. 2 to 8 as her legal heirs. No deed of conveyance  has been executed in favour of the complainant in respect of the said shop room.  Complainant  is ready and willing  to pay the balance consideration  amount of Rs. 50,000/-.  Inspite of sending  a legal notice through his  Ld. Advocate  on 25.04.2018, the sale deed has not been executed in favour of the complainant and thus the present complaint has been filed by the complainant to direct the  OPs to execute and register  the sale deed in the name of the complainant  in respect of schedule shop room.

          The complainant  has annexed the copy of the development agreement, the Power of Attorney executed in favour of OP Nos. 1 developer, the agreement for sale entered into  between the complainant and the  OPs,  Money receipt and the notice  sent to the  OPs  through his Ld Advocate.

          On perusal of the record it appears that the  notices were sent  and OP No.1 also entered appearance but ultimately  submitted that  he  does not intend to  file any W.V. Other OPs   did not take any step  inspite of notice being served and so  vide order dated 23.07.2018 case proceeded exparte against them. During  the  course of evidence, the complainant  has filed  his  evidence in  examination in chief  on affidavit. Argument has been advanced by the Ld. Advocate appearing for the complainant supporting  the case  as stated in the  petition of complaint.

          So the point requires determination  is whether  the complainant  is entitled to   relief as  prayed for.

Decision with reasons

          In order to  substantiate  his case,  complainant  has produced    the original documents. It appears from the  agreement dated  12.10.2010  that the agreement  was entered into between OP No.1  in his  capacity  as developer  and as the Constituted Attorney  of the owner with the complainant to sell the  schedule  shop room   on payment  of consideration price  of Rs. 4,50,000/-.  The copy of the development  agreement  entered into between the  OP No.1 and Ramala Mukherjee who happens  to be Predecessor-in-Interest of OP  Nos. 2 to 8 is also filed wherefrom  it appears  a development agreement  was executed  on 23^rd  day of January, 2006 and the Power of Attorney was  executed in favour of  developer /OP. Complainant has also filed  Money Receipt issued by the OP No.1 which shows  sum of Rs.  4,00,000/- only  has been paid by cash on 12.12.2010, 13.12.2010  and 20.12.2010 towards  part payment  for purchase   of  the said shop room. A letter of possession has also been filed wherefrom it appears  that the possession of the shop room has already been handed over  to the complainant. The said possession letter is dated 11. 03.2010. In this context,   it may be pertinent  to point out  that the said possession letter filed  by the complainant reveals that possession of the shop room  has been  delivered to the complainant before the  execution of the agreement because the original  agreement  produced before  this Forum is dated  12^th day of December, 2010 and the possession letter  is dated 11.03.2010. It is strange that before the execution  of the agreement how the possession  could be delivered by the OP No.1 /developer to the complainant. Money receipt also indicates Payment has been made in December, 2010. So  due to the  said  contradiction  in the documents relied upon  and filed  by the  complainant  himself,  it appears that the complainant  has not come before this Forum  with clean  hands and in such a situation,  the relief  sought for by the complainant cannot be  allowed.

Hence,

                                  ORDERED

                CC/315/2018 is dismissed exparte.