Judgment : Dt.18.12.2017

Shri S. K. Verma, President

            This is a complaint made by one Sri Debkumar Chatterjee, son of Late Amulya Bhusan Chatterjee, residing at premises No.331 & 29, Shreepally, P.O.- Purbabalutary, P.S.-Regent Park, Kolkata-700 093 against M/s Tollycon Enterprise, a partnership firm, having its registered office at 327, Shreepally, Purbaputiary, P.S.-Regent Park, Kolkata-700 093, OP No.1, Sri Debabrata Saha Roy, S/o Late Jagabandhu Saha Roy, residing at 327, Shreepally, Purbaputiary, P.S.-Regent Park, Kolkata-700 093, OP No.2, Sri Goutam Poddar, S/o Gour Poddar, residing at 51, School Road, Purbaputiary, P.S.-Regent Park, Kolkata-700 093, OP No.3, Sri Dipankar Saha, S/o Dinesh Saha, residing at 333 Shreepally, Purbaputiary, P.S.-Regent Park, Kolkata-700 093, OP No.4, Sri Subir Saha, S/o Late Sudhir Saha, residing at 2, Saha Para, P.S.-Regent Park, Kolkata-700 093, OP No.5 and Sri Samir Saha, S/o Suresh Chandra Saha, residing at 333, Shreepally, Purbaputiary, P.S.-Regent Park, Kolkata-700 093, OP No.6, praying for a direction upon the O.P. developer to deliver the possession of the flat measuring 500 sq.ft. alongwith the documents like copy of sanction plan, an application copy of WBEB and clearance certificate, copy of water connection certificate and a copy of Record of Rights and an order for payment of interest @ 16% p.a. calculated on and from 9^th May, 2016 till disposal of the case and damages for mental agony and physical suffering and litigation cost.

            Facts in brief are that OP developer agreed with the Complainant to develop a G+3 storied building as per agreement dt.10.12.2012. As per the terms of the said agreement OPs agreed with the Complainant to allot a flat measuring about 500 sq.ft. on the 2^nd floor of the newly constructed building and also to pay Rs.1,00,000/- as non-refundable money. OPs also agreed to complete construction within 18 months from the date of receiving the sanctioned plan by KMC and to deliver the possession of the flat immediately, otherwise to pay Complainant Rs.250/- per day for period of default.

            Construction has already been completed. Complainant by his letter dt.9.5.2016 demanded physical possession of the said flat along with all documents but the OP in spite of receiving that letter did not hand over the flat. So, Complainant filed this case.

            OPs filed written version and denied the allegations of the complaint. They have stated that interest claimed is without any basis. Further, it is the contention of OPs that agreement did not have any element of hiring any service and therefore Complainant is not a consumer. OPs have admitted that Complainant entered into an agreement for sale dt.2.10.2013 with OP No.2 to sell the alleged flat being on the 2^nd floor. The Complainant entered into such agreement for sale and decided to sell the flat at a total consideration of Rs.7,00,000/- out of which Complainant received Rs.2,36,800/- in cash and by cheques. Complainant accepted these payments by putting signatures which is in Annexure ‘A’. Further, OPs have stated that the Complainant received all the documents on 30.3.2014, where he has stated that he does not have any further requirement of documents which is Annexure ‘B’. Complaint petition is the reflection of the mala fide intention of the Complainant as he is not bound to get the possession of the flat as he has already executed an agreement for sale with a third party and moreover the said project is under verge of completion and Complainant has suppressed that he has received considerable payment against the said flat and so he is not entitled to get any money.

Decision with reasons

            Complainant filed affidavit-in-chief to which all OPs filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed evidence against which Complainant filed questionnaire against which OPs 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 petition, it appears that the Complainant has prayed for an order against the OPs developer to deliver the possession of the flat measuring 500 sq.ft. along with documents.

            In this regard, there is copy of development agreement which reveals that owner’s allocation is flat area of 500 sq.ft. and also Rs.1,00,000/- non-refundable. Here owner is Deb Kumar Chatterjee who is Complainant in this case. Further, it appears that Developer in case of failure to handover possession of the flat to the Complainant shall be liable to pay Rs.250/- per day for the period of default. It is the allegation of the Complainant that he has not received his allocation and so he filed this case. However, in written version OPs have taken a stand that Complainant entered into an agreement on 2^nd day of October, 2013, with one Debabrata Saha Roy, wherein it is stated that the Complainant has obtained one flat measuring about 500 sq.ft. covered area on the 2^nd floor and Debabrata Saha Roy intends to purchase this flat at a total consideration of Rs.7,00,000/-. Further, it appears that Complainant received the money by putting his signatures in different occasions. It also appears from Annexure ‘B’ that Complainant received agreement copy, general power of attorney, structural copy of plan. Further, Complainant has mentioned here that he does not have any further requirement of documents of development of his building. So, it is clear that Complainant is not entitled to relief for possession of the flat because Complainant entered into an agreement for sale with OP No.2 and received substantial amount of the consideration of Rs.7,00,000/- which was the price of the flat of which Complainant seeks possession.

            Similarly, Annexure ‘B’ makes it clear that Complainant has received the documents.

            Other prayer of Complainant is payment of interest @ 16% p.a. from 9^th May, 2016 till disposal of this case. Since Complainant has not filed this complaint with clean hands, the question of granting interest does not arise. In this background, Complainant is not entitled for any compensation and litigation cost.

Hence,

ordered

              CC/207/2017 and the same is dismissed on contest without costs.