JUDGEMENT

          Complainant by filing this complaint has alleged that she entered into a verbal contract with ops for purchasing the flat measuring more or less 442 sq. ft. super built up area on the ground floor of the said G+2 storied building in Block ‘B’ at the premises No.53/1M, Chawlpatty Road, Kolkata – 700010 and total consideration was fixed of Rs. 5 lakhs and complainant paid the full consideration amount of Rs. 5 lakhs and the final deed of conveyance prepared and signed by all concerned in the month of July-2011 for registration.  But thereafter op did not execute the deed of conveyance though the market value/chargeability Assessment slip of the flat was procured vide query No./Yr.-014249/2011 dated 18.07.2011 and got the flat to be valued at Rs.7,51,400/- and stamp paper payable Rs.45,104/- and registration fee payable Rs.8,359/-.

          But fact remains op delivered peaceful kash possession of the vacant flat but formal possession letter, C.C. sanctioned plan copy and other relevant documents and papers which are yet not supplied and after taking possession of the flat, complainant understood that the quality of the materials used and other articles and fittings and fixtures are of poor quality and below standard and action and in action on the part of op tantamount to deficiency of service and non registering or non-execution of the deed of conveyance even after the full payment and non-delivery of the necessary papers/documents which proves that the complainant is inexplicable mental agony and heavy tension and in the above circumstances, complainant has prayed for decision and for directing the op for execution of the Deed of Conveyance.

          On the contrary op Kalidasi Sardar land owner by filing this written version has submitted that version of paras-4, 5 & 6 of complaint are admitted and para- 7 of the complaint is partly admitted and it is stated that the alleged flat is measuring 170 sq. ft. but not 440 sq. ft. but some malafide intention the measurement of the flat has been false stated in the complaint.  But admitted fact is that verbal agreement was made in the year March-2009 and also admitted that the possession of the flat was given.

          It is further submitted that in Misc. Appeal No. 42/2010 pending before Ld. Court of Addl. Dist. Judge at Sealdah is well known to the complainant and said Appeal was arisen out T.S. No.150/2009 and by that order of the Ld. District Judge, ops are hereby restrained from entering into sale transactions with each other and there cannot be no sale or transaction or execution of conveyance of Deed by the op no.1.

          Further it is submitted that the total consideration price has not been yet paid in full and there is no amount of consideration price still dues from complainant and op further submitted that he never asked to prepare any deed of conveyance and op no.1 has never sent the deed of conveyance as alleged.  Lastly it is submitted that it is possible for the op for execution of the Deed of conveyance in view of the standing order of the Ld. Addl. District Judge, Sealdah.  So there was no deficiency on the part of the op and noted that all other allegations are false and prayed for dismissal of this case.

          Whereas op no.2 by filing written statement submitted that one Sri Biman Sen and others are filed the Civil Suit before the Ld. 1^st Civil Judge Court, Sealdah praying for ad-interim order of injunction making the present op as party defendant.  But Ld. Civil Judge 1^st Court, Sealdah did not allow the ad-interim injunction order against that Biman Sen in Misc. Appeal No.42/2010 before the Ld. District Judge, Sealdah and the Ld. Addl. District Judge, Sealdah passed an order of Status-quo directing both Kalidasi Sardar and Amit Bhattacharya the present ops not to sale/transfer/create any 3^rd party interest in any flat raised upon the said premises till disposal of Injunction Petition vide Order dated 06.01.2011 and against that order Kalidasi Sardar moved before Hon’ble High Court being C.O. No.1057/2011 was preferred.  But the Hon’ble High Court did not interfere with the order passed by the Ld. Addl. District Judge Court, Sealdah.  So, after passing such order by Hon’ble High Court in the said C.O. No. 1057/2011, Kalidasi Sardar and present op no.2 were restrained to dealt with the selling/transfer/executing any deed in respect of the present flat including other flats.  But Kalidasi Sardar violated the order of Ld. Addl. District Judge as well as Hon’ble High Court deliverately.  Present op no.2 was not aware about the dealings in between Kalidasi Sardar and Susmita Mullick and moreover there is no allegation against the op no.2 and even after existence of standing status-quo order passed by the Ld. Addl. District Judge, Sealdah confirmed by the Hon’ble High Court that Kalidasi Sardar dared to sign the Deed of Conveyance and received payment and handed over possession.  But anyhow Kalidasi Sardar has no right to execute such a deed or to take any money from the complainant and so the present complaint against op no.2 is not maintainable and he is falsely implicated in this case for which the complaint should be dismissed.

                                                Decision with reasons

          After hearing the Ld. Lawyers of both the parties and also considering the submission of the complainant and further considering the disputed deed of conveyance, it is found that Deed of Conveyance was prepared in a document dated 26.07.2011.  But no agreement to sale dated 25.07.2011 is proved.  But it is admitted by the op no. Kalidasi Sardar that there was no oral agreement and he received Rs. 5 lakhs from the complainant and singed in documents but he never entered into any agreement for sale in respect of 400 sq. ft. or area and further it is submitted that she has no capacity to execute any sale deed in view of the present standing order passed by the Hon’ble Addl. District Judge, Sealdah in Misc. Appeal No. 42/2010 which has confirmed by the Hon’ble High Court.  But truth is that complainant is in possession of the property and that was delivered by the op no.1.

          Now the question is whether the complainant has been able to prove whether there was no negligence or deficiency on the part of op no.1 for registering the Deed or not.  In this regard we have gathered that Deed of sale was no doubt executed by Kalidasi Sardar after receipt of Rs.5 lakhs in respect of flat on the ground floor on the Northern side at premises No.53/1M, Chaulpatty Road, Kolkata-700010, P.S.-Beliaghata, Ward No.33 under Kolkata Municipality and it is proved that as vendor Kalidasi Sardar singed in all papers and witnesses were Minu Banerjee and Aparna Sardar and no doubt that Deed was typed and prepared on 26.07.2011.  But it is also admitted by Kalidasi Sardar that oral agreement in between the complainant and op no.2 was made in the year 2009.  So, apparently, it is found that there was an oral agreement on the basis of which this Deed of Sale was prepared by op no.1 and signed it but fact remains that op no.2 was not party in the said Deed.

          Further after considering the order of the Hon’ble High Court passed in C.O. No.1057/2011 (Kalidasi Sardar – Vs – Biman Sen & Ors) on 20.07.2011, it is found that Hon’ble High Court confirmed the order of the Addl. District Judge, Sealdah passed on 06.01.2011 restraining the defendant of the said suit from entire sale transaction constructed in the Suit Property.  So, it is clear that Kalidasi Sardar has no legal right to execute any sale Deed on and from 06.01.2011 in respect of any flat even if the possession is transferred to any such flat owners after receiving any money.

          But peculiar factor is that the present deed was prepared and signed on 26.07.2011 and in the said deed, Kalidasi Sardar signed and was admitting acceptance of Rs.5 lakhs as consideration.  But in view of the order passed by the Hon’ble High Court and Addl. District Judge, Sealdah passed on 06.01.2010 we find that after that order Kalidasi Sardar had no legal right to transfer any property in favour of any one and for which Kalidasi Sardar did not register the said document and that is no doubt being restrained by the Hon’ble High Court’s order.

          So, in this regard we find that under any circumstances, this Forum cannot pass any such order in this regard in respect of this present case and practically Kalidasi Sardar is being restrained by the order of Hon’ble High Court and to transfer and execute or register of any Sale Deed and when that is the fact, then it is proved that complainant has failed to prove any sort of deficiency or negligency on the part of the op no.1 Kalidasi Sardar and there is no question of harassing the complainant by the op no.1 on the ground the entire dispute in respect of the land in question is in session at Civil Court at Sealdah and Kalidasi Sardar and other ops are made party and they are restrained by the order of the Ld. Addl. District Judge, Sealdah and fact remains till the decision of the said Title Suit No.150/2009, Kalidasi Sardar is barred to take any further action regarding execution, registration of the Deed and as per order of the Hon’ble High Court passed in C.O. No.1057/2011, Kalidasi Sardar (op no.1) of this case has no legal right to execute or to register any sale Deed.

          But truth is that op no.1 has admitted that he received Rs.5 lakhs and delivered kash possession to the complainant.  But now she is unable to execute and register the final Sale Deed.  So in the above situation, the present complainant has failed to prove the deficiency and negligence on the part of the op no.1 and most vital factor is that in view of the present pendency of the Civil Suit regarding the total of the land in question for which the present building which constructed by preparing flats are allotted to separate persons after executing documents.  The present Forum has no jurisdiction to decide the present complaint and to give any relief to the complainant.  But complainant may appear before this Forum after dismissal of Civil Suit and if in that suit Kalidasi Sardar fails to establish his title in that case the complainant’s fate shall be decided by that suit.  But in this regard we are convinced to hold that it would be safe for the complainant to be added as party in the said Civil Suit to protect her interest, otherwise in future he shall not get any relief in the present Forum.

          In the light of the above observation, we are convinced to hold that such a present complaint cannot be decided by this Forum.  In view of the fact the total dispute in respect of the land upon which the flat is situated which is a subject matter of dispute for determination in Civil Court and for which this Forum has no jurisdiction to entertain such complaint at this stage.

          Hence, it is

                                                          ORDERED

That the complaint be and the same is dismissed on the ground lying prior to filing of this complaint regarding the total of the land upon which the present flat is situated is a subject matter of dispute in between Kalidasi Sardar and other persons who are claiming their title otherwise.  But anyhow no cost is awarded in this case in view of the above fact.