Judgment : Dt.5.12.2017

Shri S. K. Verma, President.

            This is a complaint made by one Sri Sitaram Rajak, son of Late Bunde Rajak, residing at 36, Prince Rahimuddin Lane, Tollygunge, P.S.-Charu Market, Kolkata-700 033 against Sk. Faqruddin @ Gora, son of Late Sk. Gullu, residing at 33, Taltola Lane, P.S.-Taltola, Kolkata-700 016 also residing at 4, Topsia Road, Parna Building, P.S.-Topsia, Kolkata-700 039, OP No.1, Mr. Murshid Alam, s/o Late Sk. Ashir Uddin, residing at Vill-Jagannathpur, P.S.-Sonarpur, Dist.- 24 Pgs (South), Kolkata-700 150, OP No.2 and Angur Bibi, w/o Late Abdul Motaleb, residing at 36, Prince Rahimuddin Lane, Tollygunge, Ward No.89, P.S.-Charu Market, Kolkata-700 033, OP No.3 praying for a direction upon the O.P. to deliver/handover the said room at the schedule premises including and to execute and register the deed of conveyance in the name Complainant, alternatively return the sum of Rs.75,000/- to the Complainant and direction to pay compensation of Rs.2,00,000/- for mental harassment and litigation cost of Rs.1,00,000/-.

            Facts in brief are that OP No.1 & 2 are land developer/promoter and the OP No.3 is land owner. OP No.1 & 2 entered into a development agreement with OP No.3. Complainant entered into an agreement for sale with OP No.1 & 2 for purchasing a room measuring about 105 sq.ft. covered at the ground floor, road side, South Eastern corner together with the undivided proportionate share of land underneath the building along with all easement rights and common facilities and amenities attached in the said building and having specifications in the schedule E/ 5^th Schedule of the registered agreement for sale. Complainant and OP No.1 & 2 made a total monetary consideration of Rs.1,05,000/- for the said 105 sq.ft. room. Complainant paid Rs.25,000/- at the time of agreement for sale on 21.7.2010. Complainant made further payment to the OP No.1 & 2 Rs.20,000/- as 2^nd installment and OP No.1 gave a money receipt with his signature. The money receipt dt.14.9.2010 with a revenue stamp. Complainant gave another Rs.30,000/- as 3^rd installment on 15.12.2010 and OP did not give money receipt.

            OPs made a promise to Complainant that the schedule time of making the said building they will provide a rented room for his business and they will give a place to the Complainant beside the said building for his small business and pay the whole rent for that rented room. But after six months OP denied making payment of the rented room, when Complainant was pressurised by the landlord and he made full payment of the rented room for next six months. The rent for four years is unpaid. As per the agreement for sale OP No.1 & 2 have to deliver the schedule property to Complainant within six months from the date of agreement for sale. But, it is already six years, Complainant did not receive the property. Complainant has lost his patience and lodged a complaint at Charu Market P.S.. Complainant also gave information to KMC on 12.9.2013. Complainant informed to the Assistant Director, Consumer Grievance Redressal Cell. The Complainant did not get any relief. So, Complainant filed this case.

            OP No.2 Murshid Alam filed written version and denied all the allegations of the complaint. Further, OP No.2 has stated that the registration of the agreement for sale dt.21.7.2010 was made but the land lady, Aangur Bibi, revoked the power of attorney in favour of the developer, by a registration deed of revocation on 23.4.2012. Since the power of attorney was revoked the OP No.2 has been released and the entire responsibility has been taken by Sk. Fakhruddin. After the revocation of the power of attorney by OP No.3 and subsequent declaration by OP No.1 releasing OP No.2 from the responsibilities makes it clear that OP No.2 Murshid Alam is not liable for any allegation made by the Complainant.

            OP No.1 & 3 did not contest the case by filing written version and so the case is heard ex-parte against them.

Decision with reasons

            Complainant filed a petition praying for treating the complaint petition as affidavit-in-chief against that OP No.2 filed questionnaire to which Complainant filed affidavit-in-reply.  OPs  did not filed any evidence.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the prayer portion of the complaint petition, it appears that the Complainant has prayed for handing over the said room and also execution of deed of conveyance. Alternatively refund of Rs.75,000/- which Complainant has paid. In this regard, on perusal of the copy of agreement for sale, it appears that OPs received Rs.25,000/- which is mentioned in the agreement for sale.

            It also appears that Complainant paid Rs.20,000/- to the OP. However, Complainant has made demand of Rs.75,000/-. On perusal of the original registered agreement for sale, it appears that only Rs.30,000/- was to be paid at the time of handing over the final possession that means OP received Rs.75,000/- of which two receipts showing payment of Rs.25,000/- and Rs.20,000/- have been filed. Ld. Advocate for Complainant submitted that after payment of Rs.30,000/- dispute started and so the OP did not issue receipt and since then neither Complainant received possession nor OP refunded his money which he paid. As such, we are of the view that the claim of Complainant to the extent of Rs.75,000/- appears to be justified. So far as handing over possession and making conveyance deed in favour of the Complainant, it appears that the dispute has cropped to such an extent that there would be not only difficult but it would be impossible for the Complainant to get possession of registered deed in his favour and so he has prayed for refund of the money. Accordingly, we are of the view that if an order of refunding the Rs.75,000/- is passed justice would be served.

            So far as compensation of Rs.2,00,000/- and litigation cost of Rs.1,00,000/- are concerned, we do not find any justification of awarding this amount. Because the circumstances narrated in the complaint petition and affidavit-in-chief do not warrant this.

            Hence,

ordered

            CC/115/2017 and the same is allowed on contest against OP No.2 and ex-parte against OP No.1 & 3. OP No.1 & 2 are directed to pay Rs.75,000/- to the Complainant within  two months of this order, in default the amount shall carry interest @ 10% p.a.