Judgment dated 29-06-2015
This is a complaint made by Shri Raj Kumar Chakraborty son of Late Krishna Dhan Chakraborty residing at Bikramgarh Colony, P.S. Jadavpur, Kolkata-700032 against M/s. Swastik Group a partnership firm having its office at 141/30, Prince Golam Hossain Shah Road, Smt. Gita Debnath and Shri Debjit Debnath residing at the same address praying for a direction upon the OPs to hand over the complete residential flat and also the possession certificate. Direction upon the OPs to deliver schedule ‘B’ property to the Complainant in a good habitable condition, to pay Rs.5,00,000/- as compensation and Rs.20,000/- as litigation cost.
Facts in brief are that OP No.1 is a partnership firm represented by OP No. 2 & 3 to undertake development work.
Complainant is joint owner of premises no.76/1C, Prince Golam Hossain Shah Road, P.S. Jadavpur, Kolkata-700032 on the strength of deed of gift dated 22/6/1989 from the Refugee Relief and Rehabilitation Department. On 26/2/2011 Complainant and other owners entered into an agreement with OPs for development of property mentioned in schedule ‘A’. Out of that agreement Raj Kumar Chakraborty Complainant was entitled to two flats, one flat in the ground floor and another flat in the second floor. Developer was to complete the construction within 12 months of the agreement and deliver possession. Owners will be shifted to rented accommodation for that property. On 26/2/2011 Complainant executed and registered a power of attorney in favour of the OPs. Complainant found that OP has neglected to carry out the work as per the agreement dated 26/2/2011 and so he revoked the power of attorney by a registered deed. Thereafter on 5th December, 2011 a supplementary agreement was entered into between parties. OP failed to complete the flat and hand over it to Complainant and so Complainant having no other alternative sent a letter on 30/4/2014 for completing the flat and handing over possession. OPs made deficiency in service and so Complainant filed this case. OPs filed written version and denied the allegation of the complaint.
On the contrary case of OP is that in terms of power of attorney dated 26/2/2011 OPs demolished the old structure and started to construct new four storied building. But Complainant always created hindrance arbitrarily. The project was delayed due to disturbance created by the Complainant. Thereafter OP filed a M.P. case on 2/9/2011 bearing no. 3951 of 2011 and under section 144(2) of C.R.P.C and Ld. Executive Magistrate passed an order in favour of OP restraining Complainant not to create any nuisance. Thereafter, Complainant revoked the power of attorney dated 16/08/2011 and finding no other alternative OP was forced to sign supplementary agreement. Again OP started works one Pradyut Chakraborty being one of the co-owner instituted a civil suit being case no.548 of 2013 which is still pending. So OP could not complete the work and OP has prayed for dismissal of this case.
Decision with reasons
Complainant has filed affidavit-in-chief wherein the facts mentioned in the complaint petition have been reiterated. Thereafter OP filed questionnaire against the affidavit-in-chief of Complainant. After which Complainant filed affidavit-in-reply. Thereafter the case was fixed for argument.
Main point for determination is whether Complainant is entitled to reliefs as mentioned in prayer portion of the complaint.
On perusal of the complaint it appears that Complainant is one of the co-owners of the property and he has filed this case for delivery of possession in his favour of flat mentioned in schedule ‘B’ and for compensation and litigation cost.
It appears on perusal of affidavit-in-chief that development agreement between Complainant and OP has chequrred history. It is because Complainant himself has stated that he revoked the power of attorney after about 7 months of granting that power of attorney. This reflects that it is impossible to construct four storied building during this period.
Further it appears on perusal of the affidavit-in-chief, questionnaire and affidavit-in-reply that a supplementary agreement was entered in December, 2011 but the co-owner started disturbing OP in making construction and just after lapse of about 9 to 10 months one of the co-owners Prodyut Chakraborty filed a title suit before the Court of Ld. Civil Judge, Junior Division, Alipore which was numbered as 548/2013 and Ld. Civil Judge passed injunction order in that case which as per record file continued upto 20/6/2016. In this back ground the OPs cannot be blamed for not completing the construction and the relief prayed by the Complainant do not appear to be worthy of being allowed.
Hence,
O R D E R E D
CC/11/2015 and the same is dismissed on contest.
