This is a complaint made by one Basudev Karmakar, son of Late Akshaya Kumar Karmakar, 421/1, Bansdroni Park, P.S.-Regent Park, Kolkata-700 070 against (1) Raja Mallick, son of Sri Hara Krishna Mallick of 398, Kalighat Road, P.S.-Kalighat, Kolkata-700 026, OP No.1, (2) Sri Amit Banerjee, son of Late Kamal Krishna Banerjee of 10/4/2, Nepal Bhattaharjee St, P.S.- Kalighat, Kolkakta-700 026, OP No.2, (3) Debdas Bhattacharjee, OP No.3, (4) Alok Bhattacharjee, OP No.4, (5) Chandra Mukherjee, OP No.5, (6) Indrani Rao, OP No.6, (7) Shukla Bose, OP No.7, (8) Krishna Bhattacharjee, OP No.8 and (9) Koustav Bhattacharjee, OP No.9, praying for an order directing the OPs (a) to execute the deed of conveyance in favour of the Complainant in respect of the shop room, (b) to provide compensation with bank interest thereon in respect of the deficit area of shop room provided by them in violation of agreement for sale dt.20.7.2011, (c) not to disturb the peaceful possession of the Complainant in respect of the scheduled mentioned property, (d) to pay compensation of Rs.1,00,000/- for mental agony and harassment and (e) an order directing the OP to pay Rs.50,000/- as litigation cost.
Facts in brief are that Complainant is the bona fide purchaser in respect of the shop room measuring about 78 sq.ft. of Southern side of ground floor at Premises No.57A, Nepal Bhattacharjee 1st Lane, P.S.-Kalighat, Kolkata-700 026.
Complainant entered into an agreement with OP No.1 & 2 on 20.7.2012 to purchase the shop room at a consideration of Rs.5,60,000/-. OP No.1 & 2 are the developers and proprietors of Samrat Construction entered into a joint venture agreement with the landowners, OP No.3 to 7 and Kalidas Bhattacharjee, represented by OP No.8 & 9. OP No.1 & 2 duly constructed the building as per sanctioned plan and in terms of the development agreement entered into an agreement for sale of shop room in favour of Complainant. On 29.3.2012 OP No.1 & 2 handed over the physical possession of the schedule shop room, after receiving the entire consideration money. Complainant requested the OP No.1 & 2 to make conveyance deed. But, they did not oblige the Complainant. Complainant also informed OP No.1 & 2 that the shop room as agreed measuring about 112 sq.ft. But, they have provided only 78 sq.ft. Complainant immediately protested and pointed out about this irregularity to Calcutta Corporation.
Complainant after receiving the possession asked OP No.1 & 2 to make a conveyance deed. But, OP did not do so. Complainant used the said shop room for the purpose of earning bread and butter for his family by running a jewellery shop. OP No.1 & 2 taking advantage of the simple nature did not make registration and did not also refund the money of the less area provided to the Complainant. So, Complainant filed this case.
OP No.3 to 9 filed written version and denied all the allegations of the Complainant. OP No.3 to 9 prayed for dismissal of this complaint. OP No.1 & 2 also filed written objection and denied the allegations of the Complainant. They denied that they handed over only 78 sq.ft. shop room with the area. O.P.s have agreed that they would return the amount in respect of the shop room. Further, OP No.1 & 2 have denied all the allegations of the Complainant made in the complaint petition para-wise and prayed for dismissal of the complaint.
Decision with reasons
Complainant filed an application for treating the complaint petition as affidavit-in-chief and prayer was allowed. Against that OP No.3 to 9 filed questionnaire to which Complainant made reply. Similarly, OP No.3 to 9 filed evidence to which Complainant filed questionnaire and OP No.3 to 9 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 Complainant, it appears that Complainant has prayed for an order directing the OP to execute the deed of conveyance in favour of the Complainant in respect of the schedule mentioned property. Schedule mentioned property is 78 sq.ft. shop room. One Xerox copy of the letter of possession measuring area of 112 sq.ft. is annexed herewith. This letter is dated 29.3.2012. This case is filed by the Complainant on 11.1.2016 that means after a lapse of four years of taking possession. This letter clearly mentions that the possession of the shop room measuring an area of 112 sq.ft. in premises No.57A was handed over. Further, it appears that the Xerox copy of agreement for sale reveals that Complainant agreed for purchase of shop room having super built up area of 112 sq.ft. This agreement for sale was entered on 20.7.2011. This agreement for sale also reveals that Complainant paid all the consideration money. There is a letter dt.15.12.2015 addressed to Raja Mallick and Amit Banerjee, OP No.1 & 2 stating that agreement between the Complainant and OP No.12 & 2 are entered on 20.7.2011 about a shop room measuring about 112 sq.ft. for which Complainant paid Rs.5,60,000/- and for the first time they raised the issue that the shop room was 78 sq.ft. that means Complainant for the first time raised this issue after about three years.
Admittedly OP No.1 & 2 contested the case after filing written version. They have denied in the written version all the allegations of the Complainant. They have, further, stated that they handed over the possession of 112 sq.ft. shop room. Now, the question arises as to whether after three years this Forum does have jurisdiction to pass order for making registration of the shop room of which Complainant is in possession and which is allegedly of 78 sq.ft. super built up area unless this is decided the prayer of Complainant for direction upon the OP to execute the deed of conveyance in favour of the Complainant cannot be allowed. It is because, even if it is considered that this is a deficiency in service on the part of OP No.1 & 2, that has to be corrected either by the Complainant or by the OPs. Here if Forum passes an order for a specific registration of 78 sq.ft. which has been conceded by the Ld. Advocates for both the sides and the amount paid by the Complainant to the OP No.1 & 2 be directed to refund with interest as prayed by Complainant justice should be served.
Accordingly, we are of the view that it would be justiciable to direct OPs to make registration of the shop room and refund the rest of the amount received by the OP No.1 & 2.
Hence,
ordered
CC/14/2016 is allowed on contest against OP No.3 to 9 and ex-parte against OP No.1 & 2. OPs are directed to make the conveyance deed in favour of the Complainant within three months of this order. Further, OP No.1 & 2 are directed to refund the rest of the amount received which is the price of 34 sq.ft. with interest of 10%p.a. from the date of filing of this case. In addition, OPs are directed to pay compensation of Rs.10,000/- and litigation cost of Rs.5,000/- within this period, otherwise this amount including the rest amount calculated shall carry interest of 10%p.a. till realization.
