Judgment : Dt.30.6.2017

            This is a complaint made by one Smt. Jaya Sengupta, daughter of Late Kalisankar Dasgupta, wife of Late Mrinal Kanti Sengupta, of 2^nd floor, Flat No.3B, 8/80, Bijoygarh, P.S.-Jadavpur, Kolkata-700 032 against Sri Abhijit Guha Thakurta, OP No.1, Sri Tejesh Kanti Nag, OP No.2 and Jadav Chandra Sarkar, OP No.3, praying for a direction upon the OPs to execute a registered sale deed of the flat and pay compensation of Rs.1,00,000/- for deliberate mental agony, distress and deficiency in service upon the Complainant, cost and other reliefs.

            In brief the facts are that Complainant for an urgent need of accommodation, contacted OP No.1 who represented himself as Developer of the under-construction multi-storied building at 8/80, Bijoygarh, having development agreement with owners OP No.2 & 3. OP No.1 has also right to sale Developer’s allocation. OP No.1 agreed to sale a flat measuring 450 sq.ft. super built-up area, being flat No.3A at 8/80, Bijoygarh under Jadavpur P.S. Thereafter, paid the entire consideration to OP No.1 by Account Payee cheque. OP No.1 issued a possession letter under letter head dt.25.6.2006 and handed-over the said flat on the 2^nd floor being flat No.3B in favour of the Complainant. Complainant had obtained electricity bill in her name and gas connection. Complainant is possessing the flat, but, it has not been registered in her name. Complainant pursued OP No.1 on several occasions, but, of no use. So, Complainant filed this case.

            OP No.1 filed written version and denied all the allegations of the complaint. Further, OP No.1 has stated that Complainant did not remain ready for bearing the registration cost and she is not entitled to compensation. OP No.2 & 3 did not contest the case by filing written version and so the case is heard ex-parte against them.

Decision with reasons

            Complainant filed affidavit-in-chief wherein she has reiterated the facts mentioned in the complaint petition. Against this OP No.1 has filed questionnaire. Against that questionnaire, Complainant filed affidavit-in-reply. OP No.1 filed evidence wherein he has stated the fats mentioned in the written version. Complainant has filed questionnaire. Against that questionnaire, OP No.1 has filed affidavit-in-reply.

            Main point for determination is whether Complainant is entitled to the reliefs which she has prayed for.

            At the outset, it is worthwhile to mention here that Xerox copy of death certificate has been filed in respect of Jadav Chandra Sarkar died on 7.7.2008. Another Xerox copy of certificate issued by burning ghat, that Tejesh Kanti Nag also died.

            On perusal of the cause title of the complaint, it appears that this complaint has been filed against Tejesh Kanti Nag as OP No.2 and Jadav Chandra Sarkar as OP No.3 on 11.8.2016 i.e. if the Xerox copies of the certificates, mentioned above, are believed, it can be safely said that this complaint was wrongly and illegally filed against OP No.2 & 3 who died sometimes in about 2008 and so the question of relief against these two OPs does not arise by any stretch of imagination.

            OP No.1 is the alleged Developer who has contested this complaint. On perusal of the complaint, it appears that Complainant has mentioned about one possession letter. Further, Complainant has mentioned in Paragraph 2 that she got possession of flat No.3B on the 2^nd floor. On the strength of the possession letter which was issued on 25.6.2006 the one and only relief sought by Complainant is that the flat has not been registered in the name of the Complainant till now.

            No doubt, if the property is not registered by the Developer, it is a continuing cause of action. However, here no schedule is mentioned in the complaint to establish the area and No. of the flat.

            On perusal of the affidavit-in-chief, questionnaire filed by both the sides and affidavits-in-reply, it appears that there is clear cut ambiguity in the number of the flat. This ambiguity is of 3B and 3A.

            Xerox copy of receipts have been filed which reveal that Developer was paid Rs.3,80,000/-, one possession letter which reveals that possession of flat of 3B was given to the Complainant on 25.6.2006. A copy of electricity bill has been filed, which reveals that she paid electricity bill for Flat No.3A. Further, it appears that the Advocate of the Complainant issued a letter to OPs mentioning flat No.3A. This letter was issued in 2016. This act shows that Complainant instructed illegally to mention 3A. So, there is a clear discrepancy about the flat number.

            Further, one general power of attorney has been filed in order to establish that at the relevant point of time OP No.2 & 3 gave power of attorney in favour of OP No.1. This power of attorney has nothing to do with the Complainant. Surprisingly, there is no agreement for sale filed in the record which could have establish that Complainant entered into agreement with OP No.1, alleged Developer and she has filed this case for registration of the flat mentioned in the agreement for sale.

            Accordingly, we are of the view that Complainant failed to establish the allegations made out in the complaint and so she is not entitled to the reliefs.

            Hence,

ordered

            CC/370/2016  and the same is dismissed on contest.