Judgment : Dt.3.11.2017

Shri S. K. Verma, President.

            This is a complaint made by one Sri Manish Kumar Routh son of Sri Chitra Sen Rauth, residing at 156, Prince Golam Hossain Shah Road, P.O.- Jadavpur, P.S.-Jadavpur, Kolkata-700 032 against Smt. Shila Mondal (Das), wife of Bhaskar Mondal, proprietor of “Design O Execution” of 26A, Lake Terrace, P.O.-Santoshpur, P.S.-Survey Park, Kolkata-700 075, OP No.1, Smt. Usha Rani Das, wife of late Sudhanya Das, OP No.2, Sri Dilip Das, OP No.3, Sri Pradip Das, OP No.4, both nos. 2 & 3 sons of Sudhanya Das, Smt. Ratna Das, daughter of late Sudhanya Das, OP No.5 all nos.2 to 5 are residing at 5/124, Ajoy Nagar, P.O.-Mukundapur, P.S.-Purba Jadavpur, Kolkata-700 075, OP No.5  praying for execution of registration of deed of assignment in favour of the Complainant in respect of the flat mentioned in the 2^nd schedule and one car parking and for handing over the completion certificate of the building and further direction upon the OP to compensation of Rs.2,30,000/- for unfair trade practice and direction upon the OP No.1 to pay Rs.80,000/- for increased stamp duty and Rs.40,000/- as litigation cost and also 2% per month interest till realization.

            Facts in brief are that OP No.1 is a developer. OP No.2 to 5 are the owners of the land measuring 4 cottahs 2 chittaks 14 sq.ft. more or less lying and situated at the premises  No.47 Ajoy Nagar, P.S.-Purba Jadavpur, Kolkata-700 075 and one car parking space at the ground floor. OP No.1 agreed with the proposal and entered into an agreement for assignment on 14.12.2015 for transfer of one flat measuring 700 sq.ft. on the 2^nd floor at the premises and proportionate right of stair case, common passage, roof of the building and other common facilities at a consideration of Rs.13,00,000/-. Complainant requested OP No.1 to make interior decoration of his flat and finish with Italian marble floor bath tub, modern shower and OP No.1 demanded another Rs.2,00,000/- and for this purpose in terms of the agreement for assignment dt.14.12.2015 and  over verbal agreement for making  such interior decoration Complainant paid the consideration money and interior decoration of Rs.14,00,000/- to the OP No.1. Complainant in terms of the agreement again paid Rs.1,50,000/- for purchasing one car parking space measuring an area of 135 sq.ft. situated on the ground floor of the building  south west side. On several occasions, Complainant requested the OPs to complete the construction works of the building in due time and hand over the vacant possession of the flat with car parking. Thereafter, OP handed over the vacant possession of the flat and car parking space, but, did not execute and register necessary deed of assignment. OPs are avoiding and neglecting to execute and registering the deed of assignment in respect of the 2^nd schedule. In terms of the agreement for assignment dt.14.12.2015 another document dt.31.1.2017 the OPs are in obligation to execute and register the deed of assignment in favour of the Complainant. But they willfully and deliberately failed and neglected to execute. Complainant, at least 10 times requested the OPs to complete the construction work. But, OPs failed and neglected to execute the registered deed. Complainant performed his all obligations as per assignment. But, OPs willfully failed and neglected to execute and register the deed. So, Complainant filed this case.

            OP No.2 to 5 filed written version and has submitted that they being land owners and OP No.1 being developer entered into a development agreement on 19.1.2010 for construction of a multi storied building. OP No.2 to 5 being the land owners executed a general power of attorney in favour of the developer OP No.1. Subsequently, OP No.1 developer started construction work. OP No.2 to 5 being the land owners further have submitted that they are ready and willing to register the assignment deed in favour of the Complainant.

            OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against OP No.1.

Decision with reasons

            Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against this OP No.2 to 5 did not file questionnaire and filed a petition for fixing a date for argument.

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

            On perusal of the prayer portion, it appears that Complainant has prayed for a direction upon the OPs to execute and register deed of assignment in favour of the Complainant in respect of the 2^nd schedule one flat and one car parking space and to deliver the completion certificate of the building. In this respect, Complainant has filed only affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Further, it appears that OP No.2 to 5 got the land from the Govt. of West Bengal on lease in the year 1985 and they entered into development agreement with the OP No.1 proprietor of ‘Design O Execution’ for construction of flat. Further, it appears that owners made a power of attorney in favour of Smt. Shila Mondal (Das). A copy of the agreement for assignment is also filed. This agreement for assignment is dt.14.12.2015. On perusal of this agreement for assignment, it appears that developer agreed to assign and purchaser agreed to purchase a flat with proportionate rights mentioned in schedule B of this agreement at a price of Rs.13,00,000/-. Further, it appears that OP No.1 received Rs.10,00,000/- from the Complainant at the time when this assignment was signed. It is the case of the Complainant that he has received possession of the flat. Complainant has also filed copy of receipts of making payment which reveal that Complainant made payment in 2015, on 14.3.2016 and last payment is 18.1.2017. The payment dt.18.1.2017 as per Complainant relates to the payment of car parking.

            Now, the question is if Complainant made total payment at the time of execution of agreement for assignment why he delayed to payment for car parking. There is no explanation to that effect.

            At the outset, it is necessary to appreciate as to whether an agreement for assignment relates to agreement for sale. In this regard, it is stated that assignment agreements relate to transfer of certain rights like rights of person over intellectual property or rights of a person over actionable claim. Assignment agreement gave right to legal and equitable rights in law and is not meant for transfer of title in immovable property. If that be so, the agreement for assignment cannot be treated as a substitute for the agreement for sale. No doubt prima facie it appears that Complainant made the payment. But, such payment cannot confer a right to the Complainant of the title in a immovable property.

            Furthermore, it appears on perusal of the schedule of the property mentioned in schedule B that it is a flat located in north side on the 2^nd floor. Further, there is no explanation as to whether there are other flats on the 2^nd floor and that others are located in the east, west, south and north of this flat.

            Accordingly, we are of the view that schedule B is not identifiable and so no relief can be granted to the Complainant over this flat.

            Complainant has also prayed for compensation, one car parking space measuring about 135 sq.ft. situated on the ground floor. For this car parking Complainant made payment in 2017 as it is clear from the Xerox copy of one statement of Shila Mondal, which is dt.31.1.2017. Further, the receipts reveal that on 18.1.2017 OP No.1 received Rs.1,50,000/- for car parking. This discrepancy makes it clear that Complainant did not come to this Forum with clean hands.

            Accordingly, we are of the view that Complainant failed to prove the allegations which he brought.

Hence,

ordered

            CC/133/2017 and the same is dismissed ex-parte against OP No.1 and on contest against OP No.2 to 5.