Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OP is a proprietorship firm dealing with developing and building of residential buildings and the OP2 is the proprietor of the OP1.

          Complainant further submitted complainant is one of the co-owners of a plot of land measuring more or less 2 kattahs 11 chittacks, situated at Mouza-Satgacchi, J.L. No.20, R.S. No.154, Touzi No.1`61, comprised in Dag Nol.2808, 2809, 2810 and 2811, under Khatian No.102, 90 and 282 being Municipal Holding No.61, Rafi Ahmed Kidwai Road, P.S. Dum, Kolkata – 700 055.

          Complainant for the purpose of development of the same entered into an Development Agreement with the OPs on 26-05-2011 allowing the OPs to develop and/or promote a building on the said land.

          Thereafter, OPs after entering into such development agreement with the complainant obtained a Building Sanction Plan from the Concerned Municipality for erecting a G+4 storeyed building on the said land and in terms of the agreement it was agreed by and between the parties that the entire building shall be completed within 10 months from the date of execution of the said Agreement.  Moreover, the OPs undertook not to hand over the possession to any intending purchaser from their allocation until and unless the landlord is handed over the allocated portion.  Moreover, as per Article – V (1d) of the said agreement the OPs shall pay a sum of Rs.5,200/- per month to the complainant towards rental charge for alternative accommodation.

          But, 10 months had already lapsed but, till date the OPs did not handover the complainant his allocation.  Though complainant requested the OP on several occasions for handing over his allocated portion and also the monthly rental but OP did not pay any heed to that and also did not hand over the allocated portion of 500 sq   .ft. in the newly constructed flat and no explanation is made by the OP.  On the contrary OPs did not pay a sum of Rs.42,000/- towards rental charges which was agreed to be paid by the OPs to the complainant as per the said agreement.

          Subsequently, by a demand notice dated 31-01-2013 complainant demanded Rs.42,000/- and for handing over the allocation of the complainant but OPs did not respond for which the cause of action arise on 26-05-2011 when the said agreement was executed by and between the parties and thereafter on 31-01-2013 when the demand notice was sent as usually the OPs did not pay any heed to that.  So, the complainant was compelled to file this complaint for violation of the terms and condition of the contract or agreement and also for negligent and deficient manner of service.

          On the contrary OPs by filing written version submitted that the entire complaint is false and cock and bull story and at the same time it is submitted that OP as per said terms and condition already handed over the possession to other co-owners but other co-owners verbally requested not to give physical possession to Mr. Dilip Kumar Roy until their internal problem is sorted out and the developer agreed on that and told them to resolve the matter quickly as the developer is paying the rent of the owners and as the owners’ allocation is ready so the bearing the rent for the owners is unnecessary but the owners failed to solve their internal problem and when the developer requested the owners to take owners’ allocation, as the developer could not hand over the flats to the intending purchasers and as such the other three co-owners of the land sent a letter through their Ld. Advocate not to issue any original documents or deliver owners’ allocation in favour of Sri Dilip Kumar Roy as he kept all the original documents relating to the title of the land and on receipt of the letter the developer talked with all owners and they agreed to take possession of the owners’ allocation with a condition that the issue Possession Letter in original shall be made in front of all the co-owners and the complainant was also ready for the same and accordingly the owners’ allocation was then physically handed over to the owners in the first part of month of August, 2012 but as per request and demand of all the owners no possession letter was issued in favour of the owners and the copy of the said letter dated 10-06-2012 sent by the co-owners of the complainant is also filed in this case.  Accordingly, OP has alleged that it is evident from the aforesaid fact that OP is already paid 5 months extra rental chares i.e. already spent Rs.26,000/- for the reason owners unnecessarily delayed the matter but suddenly in the month of February, OP received a letter on 31-01-2013 from the complainant demanding possession and also demanded Rs.42,000/- from the OPs and on receiving this letter the OP called the complainant and the complainant replied that if the OPs did not give all the original documents held by OPs along with original possession letter of the owners’ allocation, then he will take action against the OPs.  On hearing the same the OPs replied that it is not possible to give the complainant the same as per verbal conversion as well as per letter dated 10-06-2012 sent by the complainant’s other co-owners and so the complainant filed this baseless case, which is not tenable either in fact or in law.

          It is further submitted that complainant with some ill motives falsely submitted this false case and, in fact, complainant has not made OPs other co-owners as because they are necessary parties and it is joint property of other co-owner including the complainant and further they shall have to say about complaint and in that case it would be further found that complainant has appeared before this Forum not with clean hand and in the result the complaint should be dismissed.

Decision with Reasons

On maturity of the entire case and also after hearing the Ld. Lawyers of both the parties and further on an overall evaluation of documents including the complaint and defence of the OP it is found that an undisputed fact is that there was an agreement in between the parties in respect of the case holdings and it is undisputed fact that the OP already handed over the allocated flat of the other co-owners which has been admitted by the complainant by his demand letter dated 31-01-2013 and it is also admitted and it is proved that OP already completed the construction as per agreement and handed over owners’ allocation and they handed over to the other co-owners but that co-owners are not made party in this case.  At the same time it is also proved that a complication arose amongst the co-owners and for which Ld. Lawyers of the co-owners wrote a letter to the OP Subhojit Chakraborty not to hand over the possession to the complainant because copy of vital documents are in his custody and he was not handing over the same and practically OP was confused after receipt of that letter on 10-06-2012 but from that letter it is also proved that on the third floor there are three flats being 3A, 3B and 3C and another flat on the ground floor i.e. GA and by that letter the other co-owners asked the OP too handover the flats in presence of all co-owners and Dilip Kumar Ropy and admitted position is that other co-owners have got their flats and their possession and after considering the material it is found that other co-owners received the flats in the month of August, 2012 and from that letter dated 10-06-2012 it is found that prior to taking possession by other co-owners in the month of August, 2012 complications started in the month of June, 2012 and from the letter dated 10-06-2012 it is clear that other co-owners asked the OP to hand over the possession to all the co-owners i.e. including the present complainant in their presence that means other got possession of the flat in presence of the complainant and it is within the knowledge of the complainant but complainant has not stated which flats were taken by other co-owners.  But from the letter of the other co-owners dated 10-06-2012 it is proved that there are four flats for allocation of the co-owners and same are 3A, 3B and 3C on the third floor and GA on the ground floor.  GA was taken by the complainant’s sister whereas other two flats are taken by other two brothers of complainant but complainant has suppressed it.  However, OP has stated that they have handed over all the flats but they have not taken the possession certificates.  Now, the OP is willing to hand over the possession certificate before this Forum because possession is already taken by all co-owners if an inspection is held it would be found that they possess the flats including the complainant but as because at this stage they are not wiling to take the possession certificate this complaint is filed.  Considering the entire facts and materials we have gathered complainant has not appeared before this Forum with clean hand because in his demand letter dated 31-01-2013 he has informed that other co-owners got possession and it is fact then question is which is out of them is the complainant’s flat and number of flat is not noted in the complaint.  Another fact is that for what reason the complainant is not getting the flat as per agreement when others have got it.  It indicates that some unfair path has been taken by the complainant or there is certain complications in between the complainant and the OPs and the other co-owners.  Another factor is that for that reason the complainant has not included the other co-owners in this case to express their opinion in respect of the present complaint but whatever it may be we have gathered that complainant has no doubt entitled to get one flat.  So, we find that complainant shall have to take the flat out of three flats, 3A, 3B, 3C which shall be found vacant when other two flats are possessed by his two other brothers and OP shall have to collect possession certificate from all of them in one sitting after handing over the possession certificate to all the brothers and sister who shall have to sign and it shall be made under the supervision of the complainant and complainant shall have to do that and in all respect OP shall have to mature the matter within one month and complainant shall have to help OP and in such a process the matter shall be settled by them because we have gathered somehow other co-owners are took possessing but as because the possession certificate has not been signed by the complainant, complainant filed this complaint.  But anyhow we have gathered that complainant has some duty when they did not receive the possession certificate but ought to have send letters to them along with copy of possession certificate by signing the same and for returning the same to the OP by the co-owners with their signatures but that has not been done whatever it may be it is a very simple matter and others co-owners are not objecting then invariably complainant’s desire to get some money from the OP what the OP is not willing to pay, for which dispute is cropped up.

          In the result, the complaint is decided finally by allowing partly.

Hence,

Ordered

That the case be and the same is allowed partly on contest but without any cost against the OPs.

          OPs are directed to send a letter to the complainant and other co-sharers along copy of possession certificate duly signed by him for signing by the all co-sharers who are allotted flats and also by the complainant and complainant shall have to go to that flat along with OP and issue such possession certificate at once by signing and OP shall invariably before that sent letter to all the co-owners including complainant and thereafter, if it is found that complainant is creating any trouble in that case OP shall have to report to this Forum and in that occasion OP shall have to in detail submit what is flat number what is the area of the flat whether it is under lock and key and if it is under lock and key in that case OP to place another lock of the OP and OP shall have to seal the same by another  lock and report if complainant does not sign the possession letter even after that.

          Parties are directed to settle this matter within one month failing which OP shall have to submit detail report with all documents and papers by which he shall have to say what action has been taken by the OP as per this order and after that this Forum shall take action.  But if complainant in any reason or otherwise even after taking possession of his flat creates trouble in that case stern action shall be taken by this Forum to regularize the matter to complete delivering of possession matter of the complainant’s flat.

          Parties to follow the order strictly within stipulated time.