Judgment : Dt.28.11.2017

Shri S. K. Verma, President.

            This is a complaint made by one Sri Uttam Kayal, son of Sri Bijoy Kayal, residing at 445/1, West Rajapur, 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 5/14, Ajoy Nagar, P.S.-Purba Jadavpur, Kolkata-700 075, OP No.5  praying for possession of the flat mentioned in the 2^nd schedule and 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 for handing over the completion certificate of the building and further direction upon the OP to compensation of Rs.2,00,000/- for unfair trade practice and direction upon the OP No.1 to pay Rs.80,000/- for increased stamp duty and Rs.20,000/- 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. OP No.1 agreed with the proposal and entered into an agreement for assignment on 11.12.2012 for transfer of one flat measuring 700 sq.ft. on the 1^st  floor south east side at the premises and proportionate right of stair case, common passage, roof of the building and other common facilities at a consideration of Rs.17,00,000/-. Complainants have stated that as per agreement dt.11.12.2012, Complainant paid Rs.15,80,000/-.  Complainant has further stated that on several occasions he requested OPs to handover possession of the schedule flat and to execute and register the deed of assignment in favour of the Complainant. But OPs failed and neglected to do so. Complainant also stated that OPs in collusion and conspiracy with each other all are avoiding to handover the schedule flat and they are not ready and willing to hand over the same to the Complainant in terms of the agreement and they are avoiding and neglecting to execute the deed of assignment though they are under obligation to do so. But the OPs did not do so. Complainant submitted that he performed all his obligations but the OPs are willfully and deliberately neglecting to discharge their service and by their unfair trade practice put the Complainant in serious hardship, inconvenience and mental agony. 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 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 dated 11.12.2012, 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.17,00,000/-. Further, it appears that OP No.1 received Rs.3,00,000/- as advance money from the Complainant at the time when this assignment was signed. Complainant has not filed any receipt showing payment.

            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 second schedule that it is a flat located in south east side on the 1^st floor. Further, there is no explanation as to whether there are other flats on the 1^st  floor and that others are located in the east, west and north of this flat.

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

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

Hence,

ordered

            CC/43/2017 and the same is dismissed ex-parte against OP No.1 and on contest against OP No.2 to 5.