Judgment : Dt.22.2.2017

            This is a complaint made by one Anit Chowdhury, son of Late Anadi Nath Chowdhury residing  at premises No.94/1, Bonomali Naskar Road, P.S.-Parnashree, Kolkata-700 060 against (1) Smt. Alka Devi Bhywalka, wife of Bharat Bhywalka residing at premises No.3A, New Road, P.S.- Alipore, Kolkata-700 027, OP No.1, (2) Sri Bishnu Chowdhury, residing at premises No.H/7, New Alipore Road, Kolkata-700 053, OP No.2, (3) The Secretary, Loknath View Flat Owner’s Forum No.100 A, Bonomali Naskar Road, P.S.-Purnasree, Kolkata-700 060, OP No.3 and (4) Sri Dipak Sarkar, 100A, Banamali Naskar Road, P.S.-Purnasree, Kolkata-700 060, OP No.4, praying for necessary direction upon the OP No.1 to complete the construction of the car parking space by erecting brick built walls on its three sides together with fitting a shutter gate in front of the said car parking space and by cementing of the floor of the said car parking space, a direction upon the OP to deliver vacant possession of the car parking space to the Complainant and to pay compensation of Rs.5,00,000/- and cost and other reliefs.

            In brief the facts are that on the strength of the deed of conveyance dt.16.1.2015, OP No.1 sold one car parking space having an area of 120 sq.ft. more or less in the building Loknath view at a cost of Rs.3,25,000/-. Further, Complainant has alleged that in the said deed the price of the car parking space has been shown as Rs.2,00,000/-. But, actually OP No.1 took Rs.3,25,000/- as consideration money. Complainant paid total cost of the car parking space to the OP No.1. In the said deed the car parking space has been mentioned as covered car parking space. But, at the time of registration it was actually un-covered and OP No.1 assured Complainant that after registration she would cover the said car parking space with brick built wall with cemented plaster on its three sides and to fi one shutter on the front side of the said car parking space. In the said deed, it has been mentioned that the possession of the said car parking space was handed over to the Complainant. But since there was no construction, Complainant did not take any possession. Further Complainant has alleged that this is an unfair trade practice and, so, Complainant filed this complaint.

            OP No.3 & 4 filed written version and denied the material allegation of the complaint. They have, further, stated that Complainant in collusion with the OP No.1 illegally converted the common area of the ground floor into car parking space. These OPs have also contended that it is the Complainant who is in collusion with OP No.1 and so the complaint should be dismissed.

            OP No.1 also filed written version wherein she has denied the allegations of the Complainant and stated that as prayed the deed of conveyance one car parking space measuring about 120 sq.ft. was sold to Complainant on a consideration of Rs.2,00,000/-. Further, OP No.1 has stated that Complainant is not entitled to any compensation and so this complaint should be dismissed.

Decision with reasons:

            Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. All the OPs have filed questionnaire to the Complainant. To these questionnaires Complainant has replied. Similarly, OPs have filed affidavit-in-chief to which Complainant has put questionnaire to which OPs have made reply.

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

            On perusal of the prayer portion, it appears that the first prayer of the Complainant is a direction upon the OP No. to complete the construction of the said car parking space by erecting brick built walls on its three sides together with fitting a shutter gate. Further, on perusal of the registered deed, it appears that registration was made of a car parking space which is mentioned in the schedule B of the copy of the deed which makes it clear that one cemented floor covered car parking space having an area of 120 sq.ft. in the premises No.100 was sold  that means Complainant purchased a covered car parking space and hence there does not arise any auction. Subsequently, that Complainant will rebut the facts mentioned in the conveyance deed which was made before the Sub-Registrar and the deed was registered.

            This is settled principle that the contents of the deed can be challenged before a Civil Court and not before this Forum.

            Accordingly, the first prayer cannot be allowed.

            The second prayer of the Complainant is for delivery of vacant possession of the said car parking space. This prayer also appears to be inconsistent as because when the deed of conveyance was made, the handing over of the possession of the car parking space was also made. It cannot be presumed that Complainant made payment without getting possession of the car parking space.

            As such, we are of the view that this prayer of the Complainant cannot be allowed.

            Finally, Complainant has prayed for compensation of Rs.5,00,000/-.

            On perusal of the affidavit-in-chief, questionnaire and reply of the respective parties, it appears that there is no ground that compensation can be allowed. It is because the latches are on the part of the Complainant who purchased car parking space in a building where he did not purchase the flat. This in itself reveals that the Complainant and the OPs have some otherwise reasons where both were compelled to make this conveyance deed.

            In the aforesaid facts and circumstances, we are of the view that there is no ground to allow these prayers.

            Hence,

ordered        

            CC/212/2016 and the same is considered and dismissed on contest.