Date of filing :26.3.2018
Judgment : Dt.10.4.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by Partha Pratim Biswas alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) Shri Mahesh Kumar Sharma and (2) Smt. Gita Rani Bose.
The Case of the Complainant, in short, is that OP No.2 being the owner of A schedule property engaged the OP No.1 to develop the said property by constructing a multi storied building and a joint venture agreement was executed between them on 27.3.2017. Registered power of attorney was also executed in favour of OP No.1 on 31.8.2010. Complainant is a Doctor by profession and was a tenant in respect of a shop room measuring around 100 sq.ft. and was running the clinic in the old two storied building. By a tripartite agreement dt.28.4.2011 executed between the Complainant and the OPs, it was agreed that after completion of the newly constructed building and delivery of possession of the newly constructed shop room, the OPs will execute deed of conveyance in respect of proposed shop room in favour of the Complainant on ownership basis for a consideration of Rs.50,000/-. It was also agreed that an amount of Rs.15,000/- will be paid by the OP on account of shifting charges to the Complainant. It was further agreed that the construction would be completed within a period of 100 days from the date of shifting of the existing clinic of the Complainant failing which the OPs are liable to pay compensation of Rs.10,000/-per month. But the OPs have failed to complete the construction work and the possession has not been handed over nor any deed of conveyance has been executed in his favour. So, a notice was sent by the Complainant through his Ld. Advocate. But on receipt of the same the OPs threatened the Complainant over phone. Thus the present complaint has been filed by the Complainant praying to direct the OPs to execute and register the deed of conveyance in favour of the Complainant, to hand over the khans and vacant possession of the shop room described in the schedule B along with Schedule C & D, to pay shifting charges of Rs.15,000/- and Rs.10,000/-per month by way of compensation charges till delivery of possession of the shop room, further compensation of Rs.1,00,000/- and litigation cost of Rs.10,000/-.
Complainant has annexed with the complaint petition, copy of the joint venture agreement dt.27.3.2007, power of attorney, copy of the agreement entered into between the parties dt.28.4.2011 and also the copy of the notice sent by the Complainant through his Ld. Advocate to the OPs.
OP No.2 has contested the case by filing written version denying the allegations made in the complaint petition contending inter alia that car parking space was not included in the said consideration price of Rs.50,000/- and the possession of the shop room has already been handed over to the Complainant long back by handing over him the keys of the shop room. Complainant deliberately neglected to pay Rs.50,000/- towards consideration amount as agreed. So, the Complainant himself remained abstain from the registration work of the deed of conveyance and thus the OP has prayed for dismissal of the complaint.
On perusal of the record, it appears that the notice was served upon the OP No.1 but as no step was taken, vide order dt.30.5.2018, the case was directed to be proceeded ex-parte against OP No.1.
During the course of evidence, both parties adduced their evidences by way of filing respective affidavit-in-chief followed by filing of questionnaire and reply thereto.
Ultimately, argument was also advanced by both the parties. They have also filed written notes of argument.
So, the following points require determination – 1) Whether there has been any deficiency in service on the part of OPs and (2) Whether the Complainant is entitled to the relief as prayed for.
Decision with reasons
Point No.1 & 2 :
Both the points are taken up together for comprehensive discussion and in order to avoid repetition.
It appears from the written version filed by the OP No.2 that the claim of the Complainant that there was a joint venture agreement to raise a multi storied building in place of the existing structure and the power of attorney was executed in favour of the OP No.1, has not been disputed. There is also no dispute that an agreement was executed between the Complainant and the OPs on 28.4.2011. It appears that the father of the Complainant was a tenant in the said tenanted room and after his death the present Complainant has been running the clinic therein. It is apparent from the agreement filed in this case that it was agreed between the parties that after completion of the newly constructed building delivery of possession of the newly constructed shop room by the 1st party and the 2nd party (OPs herein) will execute a deed of conveyance in respect of the proposed shop room in favour of the Complainant on ownership basis at a consideration of Rs.50,000/-. So, it has been rightly argued by the Ld. Advocate appearing for the OP No.2 that the car parking space as prayed by the Complainant was not included in the said consideration price of Rs.50,000/-. The said agreement is very categorical in paragraph J that the parking facility shall be provided to the tenant for parking of 4 wheel vehicle against cost. So, as per the said terms in the agreement, the Complainant has to pay the cost separately towards parking of the said 4 wheel vehicle. Complainant has prayed for directing the OP No.1 to hand over the vacant possession of the shop room mentioned in the Schedule B, but in the Schedule B he has also added parking space for a personal 4 wheel vehicle. But, as per the agreement, since the separate cost is required to be paid and the same has not been fixed as to what would be the actual amount, Complainant can get the possession of the parking only after cost to be paid is decided between the parties and after it is paid by the Complainant.
It may, however, be pointed out that so far as the possession of shop room is concerned, it has been contended by the OP No.2 that keys of the shop room was handed over by OP No.1 to the Complainant about four years back.
It appears that a specific question has been put by the OP to the Complainant and in reply to the question, Complainant has answered that mere possession of one set of keys of the incomplete construction without electrification was handed over. It is stated in reply to question No.18 that OP No.1 handed over one set of keys to him by keeping another set with him of incomplete construction of the shop room. So, the said answer of the Complainant indicates that the possession of the shop room was handed over to him as contended by OP No.2 four years before. So, the keys of the shop room has been with the Complainant. If that be so, then Complainant being in possession of the shop room already, there cannot be any further direction as prayed. According to the Complainant the construction was not completed but it is nowhere stated in the petition of complaint that he refused to accept or did not take the possession of the shop room due to incomplete construction. There is no document filed by the Complainant to show that at any time he wrote to OP to complete the construction. Why he remained silent for four years even after getting the key, has not been explained by the Complainant.
However, admittedly as deed of conveyance has not been executed in respect of the said shop room, the Complainant is entitled to execution and registration of the deed of conveyance in his name in respect of the shop room. He is also entitled to the shifting charge of Rs.15,000/- as agreed by the parties in the agreement. But, since the key of the shop room was handed over to him four years before, the sum of Rs.10,000/- per month as claimed by the Complainant cannot be allowed. In the given facts and situation of this case, there is no justification to award any compensation as prayed by the Complainant, even though he is entitled to the litigation cost.
Thus points are answered accordingly.
Hence ordered
CC/154/2018 is allowed ex-parte against OP No.1 and on contest against OP No.2. OPs are hereby directed to execute and register the deed of conveyance in respect of scheduled shop room as agreed between the parties in favour of the Complainant on receiving the consideration price of Rs.50,000/- from the Complainant within three months from the date of this order. OP No.1 is further directed to pay Rs.15,000/- towards shifting charges and Rs.10,000/- as litigation cost within the aforesaid period of three months, failing which the entire sum shall carry interest @ 10% p.a. till realization.
