This is a complaint made by Sri Biju Pillai, son of Sri Shankar Muniyappan Pillai, residing at ZC/4, 3rd floor, Niva Park, Phase-4, Brahmapur, Kolkata-700096, against (1) Smt. Bela Sarkar, wife of Sri Nirmal Kumar Sarkar, 10, Satindra Pally, P.S.-Regent Park, Kolkata-700 084, (2) M/s Neo Construction, 66, Subhas Pally, Kolkata-700 084, (3) Sri Nirmal Kumar Das, son of late Narayan Chandra Das, 23/7, Naktala Road, Kolkata – 700 047 and (4) Sri Indranil Chatterjee, son of late Tamal Chatterjee, 7B, Bhuban Chatterjee Lane, P.S.-Girish Park, Kolkata-700 006, praying for a direction upon the OP to deliver the suit property to the Complainants and also an order directing the OP No.2, 3 & 4 to make payment Rs.2,00,000/- as compensation and Rs.50,000/- as litigation cost and also interest to the tune of Rs.1,10,294/-. It appears in the prayer portion (iv) Rs.50,000/- has been mentioned twice, perhaps it has been done inadvertently. So, this may be ignored.
Facts, in brief, are that OP is absolute owner in respect of land measuring about 6 Cottah 5 Chittack 34 Sq.ft. at premises No.10, Satindra Pally under the Kolkata Municipal Corporation Ward No.111. OP No.2 is a partnership firm represented by his partner, OP No.3 & 4.
OP No.1 entered into development agreement with OP No.2, 3 & 4 for constructing a building on the premises. OPs got sanctioned plan on 1.2.2011 from the Kolkata Municipal Corporation. OPs entered into an agreement with the Complainants whereby they agreed to sale and Complainants agreed to purchase a flat on the second floor bearing No. S/3 measuring about 745 Sq. ft. super built up area including the common areas at the said premises No. 10, Satindra Pally, Ward No.111, P.S. Regent Park at a consideration of Rs.10,24,375/- . Payment was to be made in terms of the agreement. OP Nos. 2, 3 &4 have completed the work up to ‘F’ level and partly completed the work up to ‘G’ level. So they are entitled to 75% agreed consideration money. But Complainant has paid a sum of Rs.9,93,281/- . OP No.2, 3 & 4 requested Complainant for some time for completing the construction. Complainant paid extra amount of Rs.2,25,000/- to OP No. 2, 3 & 4 agreed to hand over the possession within 18 months but failed. On several request since OP did not handing over the possession, Complainant filed this case.
Against this OP No.1 has filed written version and denied all the allegations of the complaint. In paragraph 10 of the written version OP No.1 has stated that statement made in paragraph 7 to 11 are partly true and partly related with OP No. 2 to 4. Further, OP No.1 has alleged that OP No.2 to 4 violated the terms of the agreement dt.24.01.2011. The Power of Attorney given to them was cancelled and so the delay in making construction was made. Thereafter, again the Power of Attorney was given. So OP No. 2 to 4 has prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief wherein they have reiterated the facts mentioned in the complaint. Against this OP No.1 has filed questionnaire to which Complainant has replied. Similarly, OP Nos. 2, 3 &4 have filed affidavit-in-chief to which Complainant filed questionnaire and OP replied.
On perusal of this it appears that their dispute is relating to the violation of terms and conditions of the agreement for sale.
Main point for determination is whether Complainant is entitled to the reliefs sought for.
In this regard it appears from Xerox copy of the agreement for sale that there was an agreement between Smt. Bela Sarkar as owner and Sri Nirmal Kumar Das and Sri Indranil Chatterjee as developer on the one hand and Sri Biju Pillai on the other hand. It appears that agreement has been signed by OP No.3 & 4. Complainant put his signature on first and last page of the agreement. On the basis of the agreement this complaint has been filed. Further, Complainant has filed Xerox copy of certain receipts showing that he paid about Rs.9,42,500/- to the OP Nos.2, 3 & 4. Further it appears that Complainants have not made prayer for refund of any money which they have paid. They have prayed only for delivery of possession of the said flat. They have also not prayed for registration of the suit flat in their favour. This is very much surprising as to why neither the Complainant prayed for refund of the money nor for registration of the flat.
It appears from the record that owner revoked the Power of Attorney in favour of the developer on 8/4/2015 and thereafter again on 27/12/2015. Development agreement took place between owner Bela Sarkar and M/s. Neo Construction. These facts have not been mentioned in the complaint.
Further, it appears that the Deed of Conveyance in favour of the Complainants as per the agreement dated 29.1.2012 was to be executed.
However, no explanation in the complaint is furnished as to why Complainant did not explain in the complaint, the reason for delay in handing over possession and registration of the flat that means it is clear that Complainant paid significant amount of money but by not praying the refund of money and also for registration of the flat did not approach the Forum with clean hands and so Complainant is not entitled to any reliefs.
Hence,
O R D E R E D
CC/97/2015 and the same is dismissed on contest.
