Judgment dated 19-9-2016

            This is a complaint made by Sri Ashis Guha son of Late Phani Bhusan Guha residing at 101/2, Roy Bahadur Road, P.S. Behala, Kolkata-700034 against Sri Rahul Das son of Kanailal Das residing at 25A, Raja Rammohan Roy Road, P.S. Behala, Kolkata-700008 praying for direction upon the OP to handover the owner allocated portion in habitable condition to the Complainant as per the development agreement and a direction upon the OP to pay Rs.96,000/- as rental amount which Complainant has already paid as rent towards the alternative accommodation and complete the unfinished work and also to handover completion certificate and compensation of Rs.3,00,000/- and litigation cost of Rs.50,000/-.

            Facts, in brief, are that Complainant is owner of the property Bastu Land measuring about 3 Cottahs 17 Sq. ft. lying at Mouza Sahapur, J.L No.98, Revenue Survey No.179, Touzi No.93 and 101 within the limits of Kolkata Municipal Corporation, being ward no.119 at 69, Roy Bahadur Road. Complainant entered into development agreement with OP on 26/12/2012 which was duly registered in the office of Additional District Sub Registrar at Behala with an intention for construction of G + 3 storied building. Development agreement was made between Complainant and OP. Complainant had given authority to OP to construct and complete a new building over there within a period of 24 months from the date of the signing of the agreement. It was clearly mentioned in the agreement that owner’s allocation shall mean 50% of the total built up area. The said 50% shall be adjusted with the cost of the said three allotted one room flat of three tenants, measuring more or less 160 Sq. ft. each with their shifting cost and also adjust the refundable sum of Rs.1,24,500/- which have already paid by the Developer for the deficit stamp duty and registration  cost for realization of the owners purchase portion.

            Further, Complainant has stated that OP did not pay sum of Rs.3,000/- p.m. as rent. So, Complainant filed this case.

            OP filed written version and denied all the materials allegations of the complaint. OP has stated that Complainant is the land owner of the Schedule ‘A’ property. A joint development agreement was executed by and between the parties expressing various terms and conditions to be complied by the parties where land owner is entitled to 50% of the project without bearing any cost. Before executing the joint development agreement one Mr. Sanjay Chakraborty introduced the issues of the Complainant before OP No.1. Complainant when Sanjay Chakraborty proposed for development of the land. The land in Schedule ‘A’ was occupied by three separate tenants and there are three separate tenanted units with tiled roofs in the said premises. Complainant proposed that OP No.1 would pay the existing tenants on surrendering their tenancy and also pay the  deficit stamp duty to released the Deed of Title of the Complainant which is about Rs.1,00,000/- . Complainant approached OP No.1 with these proposals. OP accepted the request and paid Rs.1,00,000/- for the release of the Deed and separately paid Rs.10,00,000/- to obtain their surrender and alternative accommodation to the tenants and after that demolish the existing structures for making new construction.

            Thereafter a building was constructed in accordance with the complaint and during construction it was opined by legal consultant the Title Deed to Complainant is defective. The land belonging to seven persons jointly but despite being having ownership, the Deed of Conveyance for sale favouring the Complainant was only signed by one of the Co-owners namely, Parul Banerjee. With such defect OP No.1 pleaded before the Complainant to provide the Power of Attorney to the other Co-owners. But Complainant could not provide the Power of Attorney. OP has already spent Rupee s One Crore for construction. Complainant has resorted to take support of other buyers who had executed agreement for sale with OP No.1 and has created a syndicate of delay the construction. There is no deficiency of service by OP No.1.

            It would appear from one such complaint filed by Tripti Bose being CC/199/2015 where despite the flat stands complete.  But so called purchaser of the flat would not register the same for the reason of the Complainant. Purchaser of the said flat would have to pay Rs.7,50,000/- at the time of registration and delivery of possession. Complainant has made out a case beyond any cause of action. So OP has prayed for dismissal of the case.

            Decision with reasons

            Complainant has filed affidavit-in-chief wherein he has reiterated the facts mentioned in complaint petition. Against this OP has filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly OP has filed affidavit-in-chief against which Complainant filed questionnaire and OP filed affidavit-in-reply.

              Main point for determination is whether Complainant is entitled to the reliefs which he has prayed for.

              The first relief which Complainant has prayed is to handover the owner’s portion in terms of development agreement.

         On perusal of the documents it appears that OP is bound to handover the owner’s portion as appeared in the development agreement. It is because the dispute which OP has raised with the land belonging to seven Co-owners has not been proved and on this ground OP cannot shierk is low.

            Second prayer is payment of Rs. 96,000/- to the Complainant as rent. In this regard it is stated that in terms of the development agreement OP is bound to pay rent to owner. Further, Complainant has prayed for completion of incomplete work and issuance of completion certificate.

            In this regard we are of the view that these two prayers appear to be genuine and Complainant is duty bound to discharge this obligations.

            Further, Complainant has prayed for compensation of Rs.3,00,000/-. There is no explanation as to why such compensation should be awarded to Complainant. There is no ground mentioned in the petition for this compensation.

       Complainant has also prayed for litigation cost of Rs.50,000/- but considering the circumstances we are of the view that if Rs.20,000/- is awarded it would serve the justice.

Hence,

O R D E R E D

       CC/76/2015 and the same is allowed on contest. OP is directed to handover the owner’s allocation in terms of development agreement within three months of this order. Further OP is directed to handover the completion certificate. OP is also directed to give rent of the place where the Complainant resided in terms of the development agreement.

            In addition OP is also directed to give Rs.20,000/- as litigation cost within six months.