This is a complaint made by one Smt. Chandana Roy against Smt. Eti Mondal and Sri Rathin Mondal, praying for a direction upon the OPs to register a Deed of Conveyance in respect of the concerned flat in favour of the Complainant, further direction upon the OPs to complete the construction of concerned flat and handover a copy of the completion certificate, another direction to pay to the Complainant a sum of Rs. 14,00,000/- along with interest @ 18% p.a. since the date of agreement and to pay compensation of Rs. 2,00,000/-.

Facts, in brief, are that Complainant entered into an agreement for sale on 25-07-2012 with the OPs to purchase Flat No. 2A measuring approx. an area of 750 sq. ft. on the Northern portion of Second floor of Premises No. 144, Chakdah Govt. Colony ‘A’, Police Station Regent Park, Kolkata – 700 093.  The OP No. 1 is the owner of the plot of land and the OP No. 2 is the Developer appointed by the said owner of the plot of land.  In pursuance of the consideration agreed upon by and between the parties, Complainant has already paid the total consideration amount of Rs. 14,00,000/-.  It is further stated that in pursuance of the terms and conditions of the said agreement, possession of the flat was to be handed over within 18 months from the date of agreement.  It is alleged that although the OPs were repeatedly approached by the Complainant to handover possession of the flat, it did not yield any positive result, compelling the Complainant to initiate this case for relief.

Both the OPs contested the case by filing WV separately and denied all the allegations of the complaint.  It is further stated that during construction of the building, various problems cropped up that halted due progress of the building at different stages.  It is also stated that after completion of the building, the OP no. 1 completed other formalities and handed over possession of the respective unit flats to the owner/OP No. 2 and other purchasers after duly executing and registering the Deed of Sale.  However, in the meantime, the OPs came to know that an area of 160 sq. ft. of vested land was encroached while constructing the building.  Thereafter, OP No. 2 made an application for settlement of the said land to the B.L.&L.R.O. which is pending for disposal.  For such reason there are some difficulties in the area.  It is stated that the Complainant has not made payment of total consideration money to the OP No. 1.It is alleged that time and again the Complainant has been requested to get the flat registered in her name after paying rest of the consideration amount.  However, the Complainant is not willing to do so.  It is claimed by the OPs that there is existence of electricity connection in the said premises.  However, the meter can only be installed in the name of the Complainant once she gets the flat registered in her name.

Decision with reasons

Complainant filed Affidavit-in-Chief wherein she has reiterated the facts stated in the petition of complaint.  Thereafter, OP No. 1 filed questionnaire, to which the Complainant filed Affidavit-in Reply.

Be it mentioned here that although the Complainant described Smt. Eti Mondal and Sri Rathin Mondal as Owner of land and Developer, respectively, on going through the photocopy of Agreement for Sale on record, it transpires that actually, Sri Rathin Mondal is the owner of the land and Smt. Eti Mondal the developer. It further transpires from the said Agreement for Sale that the same was executed in between the Complainant and Smt. Eti Mondal and that Sri Rathin Mondal did not sign anywhere in the said agreement.  As such, we see no reason to ascribe any liability upon Sri Rathin Mondal.

The first prayer of the Complainant is for a direction upon the OPs to register the Deed of Conveyance in favour of the Complainant.  In this regard, it is claimed by the Complainant that she has paid the entire consideration money of Rs. 14,00,000/-.  To substantiate such claim, Complainant has submitted photocopies of some money receipts and one Memo of Consideration containing details of payments made by her to the OP No. 1 on different dates.  Although OPs have disputed the claim of the Complainant in this regard, significantly, they have not called in question the authenticity of the Memo of Consideration or either of the money receipts on record that shows payment of entire consideration money on different dates.  That being so, we see no reason to disbelieve the contention of the Complainant as regards payment of entire consideration money.

However, it appears that a dispute has arisen over alleged encroachment of 160 sq. ft. of vested land and OP No. 2 claimed to have made an application for settlement of the said land before the B.L.&L.R.O. concerned and the matter is still pending.  In such circumstances, it appears, any order to direct the OP No. 1 execute the Deed of Conveyance in favour of the Complainant at this juncture would not be viable under the law. As such, on due consideration of the facts and circumstances of the case, we are of view that in case OP No. 1 is not in a position to set her house in order from all respects in the near future, she should refund the entire consideration money along with interest.

Hence,

O R D E R E D

that CC/66/2016 be and the same is allowed in part on contest against the OP No. 1 and dismissed against OP No. 2.  OP No. 1 is directed to either handover possession of the flat in question in favour of the Complainant within two months of this order, else refund the entire consideration money of Rs. 14,00,000/- together with interest to the Complainant @ 12% p.a. from the date of receipt of the same from the Complainant till full and final settlement is made.