This is a complaint made by one Sri Sajni Kant Sinha son of Late Madan Gopal Prasad of flat no.3, 1st floor, 98, Deshbandhu Road, P.S. Jadavpur, Kolkata-700 032 against Smt. Rina Banejree and Sri Prasun Kumar Banerjee of 6/3, Chittaranjan Colony, P.S. Jadavpur, Kolkata-700 032 praying for order directing the OP to execute and register the Deed of Conveyance in favour of the Complainant in respect of the said schedule flat along with car parking space and to pay compensation of Rs.50,000/- and litigation cost.
Facts, in brief, are that Complainant entered into an agreement on 16/1/2004 with the husband of OP No.1 and father of OP No.2 Late Prasad Kumar Banerjee now deceased who constructed the multi storied building as per sanctioned plan for purchasing a flat measuring about 980 Sq. ft. on the first floor being flat No.3 and one car parking space like Maruti (Garage) on the ground floor at premises No.98, Deshbandhu Road. The husband and father of OP No.1 and OP No.2 handed over possession of the flat with car parking space to the Complainant after receiving the total consideration money to the tune of Rs.8,80,000/- . Complainant requested the OP to execute and register the Deed of Conveyance on the basis of agreement dt.16/01/2004. Complainant issued a notice on 31/05/2010 by the Ld. Advocates Mr. Tapan Kumar Basu and Mr. Amitabha Kahali and Late Prasad Kumar Banerjee responded to it through a letter on 15/6/2010 but did not pay any heed to request of the Complainant. Even after death of Prasad Banerjee Complainant requested in writing. OP No.1 & 2 on 28/8/2015 &16/9/2015 for registering the Deed. So, OP made deficiency in service and unfair trade practice. OP No. 1 & 2 filed written version and had admitted. Prasad Kumar Banerjee was the owner of the land on which the building has been constructed. During the construction of the project the Complainant approach the OPs predecessor in interest, Prasad Kumar Banerjee and expressed his intention to purchase a flat and Prasad Kumar Banerjee entered into an agreement on 16/1/2004. Prasad Kumar Banerjee handed over the possession of the flat in or about 2005. As per sanctioned plan there are only two covered garages in the building. Car parking space does not mean covered garage in the building. Besides this two covered garages there is no car parking space available. Complainant was satisfied with the space for car parking. Therefore, Prasad Kumar Banerjee requested Complainant on different occasions to get the registration done to avoid any future complications. Apart from the aforesaid two car parking space, one covered garage is of owner Prasad Kumar Banerjee.Now inherited by his successor. OP is paying tax to the Kolkata Municipal Corporation in respect of the said covered garage. Complainant in collusion with another flat purchaser with the malafide design covered the south eastern and western side car parking space by grill gate with the view to enjoy some areas. Prasad Kumar Banerjee vide letter dt.15/6/2010 expressed his willingness to execute the Deed of Conveyance provided the Complainant restored the car parking. OP in original possession before they were covered. On the death of Prasad Kumar Banerjee Complainant remained silent regarding the dispute. After one year he has again started dispute by sending letters on 22/8/2015, and 12/9/2015 except this OP has denied all the allegations of the Complainant.
Further, they have stated that the word garage in the agreement has been loosely stated and it is nothing but a car parking space. So, OP has prayed for dismissal of this case.
Decision with reasons
Complainant has filed affidavit-in-chief stating the facts which he has mentioned in the complaint. Against this OP filed questionnaire to which Complainant has filed reply on affidavit. Similarly, OP has filed affidavit-in-chief wherein he stated the facts which they have mentioned in affidavit-in-chief to which Complainant filed questionnaire and OP has replied to the questionnaire.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint it appears that Complainant has prayed for direction upon the OP to execute and register the Deed of Conveyance. As per the complaint petition the possession was handed over in and around 2005. Complainant filed this complaint on 23/12/2015 that means after about ten years.
On perusal of the written version and affidavit-in-chief on behalf of OP it appears that dispute relates to car parking. OP has clearly stated on affidavit that pre predecessor in interest handed over possession of the flat and car parking space to the Complainant in 2005 and term garage used in the agreement is nothing but car parking space.
Further, OP has stated that Complainant created mischief by covering grill gate and so they did not request for registration and they did not get it done.
After the death of Prasad Kumar Banerjee again they have raised the dispute and harassing the OP by filing this case.
Further on perusal of letter dt.15/6/2010 Annexure “E” it is clear that Prasasd Kumar Banerjee the OP have covered all the car parking space in the above mentioned premises and Prasad Kumar Banerjee has requested to bring the car parking space in original position after which the registration of the Deed shall be made.
Thereafter, the Complainant did not take any step in this regard and after lapse of about five years issued a letter to the heirs of Prasad Kumar Banerjee to execute the Registration Deed. This makes it clear that Complainant did not approach the Forum with clean hands and he delayed the registration due to best known to her.
In the aforesaid facts and circumstances it is clear that since Complainant did not approach the Forum with clean hands he is not entitled to any relief.
Hence,
O R D E R E D
CC/102/2015 and the same is dismissed on contest.
