Judgment : 3.3.2017
This is a complaint made by (1) Sri Subhash Kumar Rawat, son of Sarju Rawat, of 117, Santosh Roy Road, Block D, Flat -401, Ganapati Enclave, P.S.- Haridevpur, Kolkata-700 008 and (2) Smt. Meena Yadav, wife of Om Prakash Yadav of 203, Diamond Harbour Road, P.S.- Behala, Kolkata-700 034 against (1) Namita Banerjee, wife of Late Lokesh Banerjee, 47, Charu Avenue, P.S.-Charu Market, Kolkata-700 033, OP No.1, (2) Subhra Dasgupta, daughter of Late Kalipada Dasgupta, 42/4, Biren Roy Road (East), P.S.- Behala, Kolkata-700 008, OP No.2, (3) Ava Sengupta, wife of Chandra Sengupta, E 51, Sonali Park, P.S.- Bansdroni, Kolkata-700 070, OP No.3, (4) Rina Dasgupta, wife of Late Sudhdir Das Gupta, of Door No.4-5-15/1, Ichupuram, Dist.- Sikakulam, PIN-532312, OP No.4, (5) Soumitra Dasgupta, son of Late Kalipada Dasgupta, of 21/1/A, Biren Roy Road (East), P.S.- Behala, Kolkata-700 008, OP No.5, (6) Saibal Dasgupta, son of Late Kalipada Dasgupta of 42/4, Biren Roy Road (East), P.S.-Behala, Kolkata-700 008, OP No.6, (7) Shyamal Dasgupta, son of Late Kalipada Dasgupta of 42/4, Biren Roy Road (East), P.S.- Behala, Kolkata-700 008, OP No.7, (8) Sandhya Roy, wife of Soraj Roy, of 1/21, Surya Nagar, P.S.- Regent Park, Kolkata-700 040, OP No.8, (9) Niladri Bhattacharyya, son of Late Amal Bhattacharya, of 760, Vidya Sagar Sarani, P.S.- Haridevpur, Kolkata-700 063, OP No.9 and (10) Niladri Bhattacharyya, son of Late Amal Bhattacharyya, Prop. Of S.A.Enterprise, 103/4D, D.H.Road, Silpara, P.S.- Thakurpukur, Kolkata-700 008, praying for direction upon the OP to give proper time to the petitioners as per sale agreement for paying the remaining amount and for doing registration, directing the OP No.10 to reduce the value of 50 sq.ft. from the total consideration amount as per the agreement. Direction to pay Rs.1,00,000/- as compensation and Rs.1,00,000/- as litigation cost.
Facts in brief are that Complainants entered into agreement for sale with OP No.10 for purchasing a flat measuring about 700 sq. ft. on the 2nd floor, South-East side together with proportionate undivided share of land at a total consideration of Rs.16,00,000/- at the time of signing of the agreement Complainant paid Rs.5,00,000/- to the developers OP No.9 & 10 by an account payee cheque. It was also settled that if the purchaser fail to pay remaining amount within 16th October, 2016 then the developer can cancel the said agreement and deducting 1% of total received amount refund the said advance amount. On 7.5.2016 Complainant received one letter from the Advocate of the OP No.10 demanding the rest amount within 16.5.2016. On the said Advocate’s letter the area of the flat was written 650 sq.ft. After receiving the letter, Complainant met the OP No.10 in his office and asked the reason of the Advocate’s letter on which OP No.10 told the Complainant that he had nothing to say about the said notice and not willing to talk to the Complainant. OP was also willing to return Rs.4,50,000/- to the Complainants by post-dated-cheques. But, Complainant refused to take the said cheques. Thereafter on 16.5.2016 at about 4 p.m. Complainant called the OP No.10 and requested him not to do such illegal activities. On 17.5.2016, Complainant visited the spot and found that another person and a woman are residing in the said flat. There is no justified ground for holding the claim of the Complainant. So, Complainant filed this complaint.
OP No.1 & 2 filed written version and denied the allegations of the complaint. Further, they have stated that they are not at all concerned with this case. The dispute is between Complainant and OP No.9 and 10. OP No.9 & 10 filed written version wherein they have denied the allegations of the complaint. OP No.9 & 10 have also stated that this complaint is frivolous and premature. They have denied that Complainants came to them on 7.5.2016. Further, they have stated that this complaint is premature and so the complaint should be dismissed.
Decision with reasons:
The Complainant filed affidavit-in-chief stating the facts mentioned in the complaint petition. Against this OP No.9 & 10 have filed questionnaire to which Complainant filed reply. Similarly, OP has also filed evidence against which Complainants filed questionnaire to which OPs filed reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
The first prayer of the Complainant is for extending the time for payment as per agreement.
On perusal of the copy of the sale agreement, it appears that the agreement was entered into between the Complainants and OP No.9 & 10 on 10.10.2015, wherein it is stated that Complainant paid Rs.5,00,000/- at the time of entering into the agreement. It was also agreed that the delivery of possession will be made available to the purchasers after making payment of the rest of the money within 16.10.2016.
Now, Complainant has prayed for extension of time for making payment. We are in 2017, and the first prayer of the Complainants for extension of time for making payment has become infructuous.
Accordingly, it cannot be allowed. 2nd prayer is a direction upon the OP No.10 to reduce the value of 50 sq.ft. from the total consideration amount as per sale agreement. This prayer cannot be allowed on the ground that unless the flat in question is measured, it cannot be said that it is short by 50 sq.ft.
Complainants are not in possession of the sued flat.
Complainants have prayed for refund of the money and so the question of passing any order in this respect does not arise. Complainants have prayed for compensation of Rs.1,00,000/- and litigation cost of Rs.1,00,000/-.
In our view, since these two prayers are contingent upon the prayer made therein in the prayer portion of the complaint, this cannot be allowed.
In the aforesaid facts and circumstances, we found that this complaint was filed at a premature stage without any cogent reason.
Hence,
ordered
CC/224/2016 and the same is considered and dismissed on contest.
