- Subho Ghose,
95A, Kankulia Road, Kolkata-29, P.S. Lake. _________ Complainant
____Versus____
- Poonam Pandey,
- Probin Kumar Pandey,
Both of M/s Triyash Projects and
Properties situated at 144A, Ashutosh
Mukherjee Road, Kolkata-20, P.S. Bhowanipore. ________ Opposite Parties
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 29 Dated 16/07/2014
The case of the complainant in short is that after the death of his father Late Kamal Kumar Ghose along with his mother and brothers, the complainant was the joint owner of premises no.9A, Ashton Road, Kolkata-20. Thereafter due to disputes the differences with his brothers and mother, the complainant was compelled to file a partition suit before the competent court in Alipore and in the midst of pending of such case the complainant was introduced to the o.ps. by his brother Soumitra Ghose.
Complainant was given the proposal by o.ps. that if he withdraws the said partition suit then they would enter into a development agreement with all the owners by way of which each one of them will obtain his/her due share after the premises are developed by them. As such it was decided that the complainant would be allotted a total area of 600 sq.ft. including an open garage space properly earmarked. Complainant believing on the representation of the o.ps. and his brother Soumitra Ghose withdrew the partition suit pending in Alipore Court and agreed upon the proposal of o.ps. in good faith.
Thereafter amongst others the complainant signed and executed a memorandum of agreement and a General Power of Attorney with o.ps. on 14.3.08 in respect of premises no.9A Ashton Road, Kolkata-20 being one of the joint owners of the said premises along with his brothers and his mother jointly. Complainant states that in the memorandum of agreement dt.14.3.08 o.ps. had failed to incorporate the space of 600 sq.ft. in total which was mutually decided amongst the parties to be handed over to the complainant and actually o.ps. had incorporated 500 sq.ft. in the memorandum of agreement dt.14.3.08 and as such o.ps. made the complainant surreptitiously sign on another agreement for sale dt.13.3.08 in respect of 100 sq.ft. area in respect of aforesaid premises an was made to believe that such agreement would help benefit the complainant in securing his allotted area of 600 sq.ft.
Complainant states that although a General Power of Attorney was executed as far back as 14.3.08 in favour of o.ps. by the complainant along with others in respect of the said premises no attempt was subsequently made by o.ps. to approach the appropriate Kolkata Municipal Authorities or likewise to take steps needful for securing a sanctioned building plan for the said premises in persuasion of their commitment as per the development agreement dt.14.3.08.
Complainant states that moreover o.ps. with an ulterior motive impressed upon the idea to the complainant and other inmates of the said premises that if the said premises is not vacated by the complainant and others, the o.ps. would not able to obtain any sanctioned plan for the same, with an oblique proposal to pay for the shifting charges thereof as mentioned in the memorandum of agreement dt.14.3.08.
Thereafter several times the complainant visited the office of o.ps. and expressed his anguish about the sanction plan and thereafter development in respect of the said premises but o.ps. always represented to the complainant that o.ps. have already taken appropriate steps for the same but failed to show any documents and could not also satisfactorily explain the same. Having no option the complainant caused necessary search with Kolkata Municipal Corporation but could not find any plan which has been applied for sanction in respect of the said premises submitted by o.ps.
Complainant states that having no other options the complainant revoked on 26.3.09, the General Power of Attorney executed by him along with others with o.ps. on 14.3.08 and the fact of the same was duly communicated to o.ps. by letter dt.27.3.098.
Thereafter several correspondences were exchanged by and between the complainant and o.ps. but o.ps. deliberately failed or neglected to act according to the terms and conditions of the said memorandum of agreement dt.14.3.08.
O.ps. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.
In view of the findings above and on perusal of the entire materials on record we are of the views that the agreement was executed by complainant and others with the o.ps. Here, Subho Ghosh alone had filed the case and the other signatories of the agreement have not been impleaded as co complainants in this case and as such, the case suffers from non-joinder of parties which is fatal.
Accordingly we hold that the complainant has failed to substantiate his case and not entitled to relief.
Hence, ordered,
That the case is dismissed on contest without cost.
Supply certified copy of this order to the parties free of cost.
