Judgment  dated 01-07-2016

            This is a complaint made by Shri Prithiviraj Singh against OP Shri Arup Mukherjee and Shri Basudev Dutta, Shri AmarDas, Smt. Susama Chakraborty and Shri Tapan Kumar Ghosh land owners praying for a direction upon the OPs to deliver the physical possession of flat in habitable condition as per agreement for sale dated 20/09/2013 and also to register the Deed of Conveyance in favour of the Complainant, for permanent injunction restraining the OPs from transfer the said flat to third party, permanent injunction and in taking forcible possession of the flat and c0ompensation to the tune of Rs.3,50,000/- and litigation cost of Rs.50,000/-.

            Facts in brief are that OP No.1 entered into an agreement with OP No.2,3,4 & 5for development of premises No.141/2, Prince Golam Hossain Shah Road. Complainant while in search of a suitable accommodation contacted the OPs and agreed to purchase a flat of 700 Sq. ft. super built area at prices of Rs.12,50,000/-. Complainant entered into an agreement on 20/9/2013 and paid Rs.7,00,000/- as booking money. Complainant has paid in total Rs.9,00,000/- to the developer. OPs agreed to hand over possession and register the deed but did not do so. Complainant was already willing to pay the rest of the amount as per agreement for sale. Since Complainant did not get possession he filed this complaint. OP Smt. Susama Chakraborty has filed written version wherein she has denied all the allegations. She has submitted that Complainant is a person of that area only and he was aware of the illegal construction made by OP No.1. Despite being aware he entered into an agreement for sale with the developer. So, the complaint be dismissed. Other OPs have not filed any written version. OP No.4 have participated during the hearing of the case by filing questionnaire against affidavit-in-chief by the Complainant.

            Decision with reasons

            Complainant has filed affidavit-in-chief to which OP has filed questionnaire. Argument has been filed by Complainant. OP No.4 has not filed argument.

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

            First prayer of Complainant is for a direction upon the OPs for delivery of possession of the flat in habitable condition. As per agreement for sale dated 20/09/2013 and also to execute and register the Deed of Conveyance in favour of the Complainant.

            In affidavit-in-chief Complainant has stated that he has paid Rs.9,00,000/- to the developer as per annexure ‘D’ and OPs agreed to hand over possession to him after which Complainant would pay rest of the amount as mentioned in an agreement for sale.

            In this case OP No.4 has filed written version who is one of the owners. She has denied the allegation of the complaint. Further she has stated that Complainant was aware of the illegal construction being made by OP No.1 and agreement for sale was executed between OP No.1 & Complainant in order to defeat other OPs. So, the prayer made by the Complainant cannot be and against OP No.2 to 5.

            In affidavit-in-reply Complainant has stated that the money he paid to the developer OP No.1. Complainant has submitted brief notes of argument also wherein he has stated the fact that which he has mentioned in complaint petition.

            Original copy of the agreement for sale is not filed. On perusal of the Xerox copy of the agreement for sale it appears that it has been signed by Complainant and OP No.1. It has not been signed by any of the OPs between OP No.2 to 5. So, the obligation is of OP No.1 is only towards Complainant.

            Complainant has made party to landlords also who are OP No.2 to 5. On perusal of the questionnaire filed by OP No.4 it appears that there was some problem in making construction of the building which was to be constructed by OP No.1 on the land of OP No.2 to 5. As such the prayer for handing over possession of the flat cannot be allowed. Since OP No.1 has not contested and rebutted the allegation the order for refund against OP No.1 can be made. So far the compensation of Rs.3,50,000/- and litigation cost of Rs.50,000/- are concerned it appears that there is no ground for allowing this. Accordingly, this complaint has to be allowed ex-parte against OP No.1 in part and has to be dismissed ex-parte against OP No.2, 3 & 5 and on contest against OP No.4.

            Hence,

            O R D E R E D

            CC/26/2015 and the same is allowed ex-parte against OP No.1 in part and dismissed ex-parte against OP No.2, 3 & 5 and on contest against OP No.4. OP No. 1 is directed to refund Rs.9,00,000/- to the Complainant within two months of this order with interest of 12% p.a. from the date of filing of this complaint till realization.