Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 30.09.2016
Smt. Karishma Mandal
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to pay Rs. 19,55,000/- (Rs. Nineteen Lakh Fifty Five Thousand only) as compensation.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that he is the owner of the land bearing S.Plot No. 384, Khata No. 109, Tauzi No. 5281, Samiti Plot No. D/16, D/17, D/18, D/19 at Vijay Nagar, Rukanpura, P.S. Danapur, Patna. Thereafter, the complainant and opposite party entered an agreement on 06.05.2004 and thereafter the complainant handed over the possession of land for map Plan preparation etc. to opposite party. The aforesaid agreement was an executed agreement and as per agreement the opposite party was to construct the apartment ( Magestic Triveni ) and was to hand over the possession of land owner area within the period of five years inclusive one year grace period which expired on 06.05.2009. In order to get the loan amount sanctioned, another agreement was registered on 25.09.2006 in Para – 33, 38 of which the existence of earlier agreement was mentioned.
It is further case of the complainant that due to non completion of apartment and also the land owner share, the complainant sent a legal notice to opposite party on 25.06.2009 vide annexure – 2. In Para – 13 of the complaint petition the complainant has asserted specifically that flat no. 305 and 306 which were given to the complainant for living, was incomplete and the complainants have themselves invested Rs. 2,00,000/- for full furnishing of the flat. In Para – 14 of the complaint petition it has also been specifically stated that two flats bearing no. 301 and 303 were also incomplete but due to agreement for sale, the complainant has sold the said flats to both the purchasers and both the purchasers had deducted Rs. 1,00,000/- respectively from the said amount of the flat.
On behalf of opposite party a counter affidavit ( written statement ) has been filed stating therein that as per clause 20 of the agreement vide annexure – 1 cost of transformer etc. was to be paid proportionately by builder and land owner but till date complainant have not paid the share of installing the transformer. It is also stated in Para – 8 of counter affidavit that extra work has been done by opposite party as per development agreement of the share of land owners of the flat no. 404, 405 and 406 in which Rs. 1,50,000/- cost has been expanded by the opposite party and extra marble cost of the flat no. 305 and 306 to the tune of Rs. 60,000/- has not been paid by the complainant till date. In reply to the fact mentioned in Para – 7 of the complaint petition the opposite party in Para – 15 of counter affidavit has asserted that on agreement of 26.05.2004 there was a negotiation of both parties and a new agreement of development has been made afresh in registered agreement dated 25.09.2006. In reply to the fact mentioned in Para – 13 of the complaint petition the opposite party in Para – 21 of the counter affidavit has asserted that flat no. 305 and 306 were handed over to the complainant in June 2008 in fully completed way as per registered development agreement and the difference amount of extra work to the tune of Rs. 60,000/- has not been paid by the complainant. It has been also stated by the opposite party that flat no. 301 and 303 are sold by the complainant as his own share to Umesh Rai and Sanjay Kumar Sinha. In Para – 25 of counter affidavit it has been mentioned that complainants have fraudulently made another development agreement with other person before the said development agreement and that person has filed a complaint case being no. 707 (c) 2005 and one of the complainant namely Triveni Prasad was in judicial custody and other two complainants are on anticipatory bail vide annexure – G.
We have narrated the facts of the case briefly stated by both parties. From order sheet dated 16.03.2012 it transpires that the complainant has not filed rejoinder to the aforesaid counter affidavit deliberately.
However the complainant has filed a rejoinder to the counter affidavit of opposite party Shabnam Kumari dated 22.09.2010 in which broadly the question of maintainability of the case was raised. On the ground that same was joint venture of both sides and hence the complainant is not consumer. However the complainant in his rejoinder has relied on the decision of the Hon’ble Supreme Court of India reported as 2008 (10SCC 345) Fakir Chand Gulati Vrs. UPPAL Agencies Pvt. Ltd and Others from perusal of which it transpires that the complainant will be covered under the definition of consumer and as such this case is maintainable.
As clearly stated above, the complainant has not filed rejoinder to the counter affidavit ( written statement ) dated 11.07.2011 which is detailed reply on the facts of the case by opposite party.
The complainant has asserted that opposite party has not completed the flat in time despite agreement and as such the complainant has been put to loss and damage by opposite party and hence the complainant is entitled to receive the damage mentioned in the complaint petition.
The complainant has asserted that the agreement dated 25.09.2006 was a fresh agreement and as such the earlier unregistered agreement has no relevancy. It has been further asserted by opposite party that she has completed and handed over the flat in time but it is the complainant who has not paid the extra amount of Rs. 1,50,000/- and Rs. 60,000/- incurred by her due to extra work done with the consent of the complainant.
Apart from it, opposite party has alleged that the complainant has not paid the cost of transformer etc. as per agreement.
From perusal of complaint petition as well as counter affidavit dated 11.07.2011 it is crystal clear that complainant had sold some of flats of his share and from annexure – G it appears that the complainants are facing criminal case by some other person and it has been asserted by the opposite party that prior to agreement with the opposite party the complainant had entered into an agreement with some other persons.
The aforesaid fact clearly shows that there are several disputed facts which cannot be decided by this Forum.
It goes without saying that the complainant himself admitted that he has sold two flats of his share.
For the discussion made above, we find and hold that there are several disputed facts which cannot be decided by this Forum.
It is needless to say that we are not giving finding with regard to the disputed facts asserted by both parties and hence parties are free to approach competent jurisdiction in this regard for redressal of their grievance on merit.
This complaint petition stands dismissed as not being maintainable.
Member President
