DATE OF FILING                    :     07-01-2014.

DATE OF S/R                            :      05-02-2014.

DATE OF FINAL ORDER      :     27-10-2014.  

Sri Lakshman  Thakur,

son of  late Raghunath Thakur,

residing at 17 now 17/A, Abhoy  Guha  Road,

Liluah, P.S. Belur,  District –Howrah,

PIN – 711 204.---.--------------------------------------------------------------  COMPLAINANT.

-          Versus   -

1.         Sri Bhola Nath Thakur,

            son of late Raghunath Thakur,

            residing at 17,  Abhoy  Guha Road, P.S. Liluah,

            District – Howrah,

            PIN – 711 204.

2.         Sk. Latif,

            son of Md. Rafique, residing at 10, Nand  Ghosh  Road,

            Salkia, P.S.  Golabari,

            District – Howrah,

PIN  – 711 106.-----------------------------------------------------OPPOSITE PARTIES.

                                                P   R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

Member       :     Smt. Jhumki Saha.

                                                 F  I   N   A    L       O   R   D    E     R

1.            Complainant, Lakshman Thakur, by filing a  petition U/S 12 of the C.P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to execute sale deed with respect to 225 sq. ft. covered space in the newly constructed building at 17/A, Abhoy Guha Road under Bally Municipality to pay an amount of Rs. 2 lakhs as compensation and Rs. 50,000/- as litigation costs along with other order/ orders as the  Forum may deem fit and proper. 

2.                  Brief fact of the case is that the Complainant has been a lawful occupier of his

respective portion at the scheduled premises being 17/A, Abhoy  Guha Road, P.S. Liluah, duly owned by o.p. no. 1. As o.p. no. 1 desired to construct a multi storied building the said premises, he entered into a development agreement with o.p. no. 2 in the year 2003. Subsequently on 29-03-2003 vide Annexure P/1 collectively one Memorandum of Agreement was executed between the complainant and o.ps. as to the delivery of possession of a self contained covered space measuring 225 sq. ft. on the north-western side of the ground floor in the newly constructed building. And it was to be delivered within the scheduled time but the construction work was delayed and it was ultimately competed in 2012 and the delivery of possession was made over to complainant only in 2012. But no registered instrument or deed yet has been executed in favour of  the complainant with respect to the ownership of the said covered space by the o.ps. till date. Complainant made several verbal requests to both of them but they pay no heed to his requests. Ultimately, he sent one lawyer’s notice dated 27-12-2013. Although o.ps. received the same, they did not do anything vide  Annexure P/2 collectively. Being frustrated finding no other alternative, complainant filed this instant petition praying for the aforesaid relief.

3.               Notices were served. Both the o.ps. appeared and filed separate  written version. Accordingly, case heard on contest.

4.               Upon pleadings of both parties two points arose for determination :

i)          Is there any deficiency in service on the part of the O.Ps.  ?

ii)                  Whether the complainant is  entitled to get any relief as prayed for ? 

DECISION  WITH   REASONS      :

5.               Both the points are  taken up together for consideration. O.p. no. 1 has denied and disputed all material allegations of the complainant including the agreement dated 29-03-2003 executed by and between the complainant and o.p. no. 1 & o.p. no. 2 vide para 16 of his written version. Accordingly, no promise was made by o.p. no. 1 to handover the possession of the schedule mentioned covered space to the complainant or to execute sale deed in favour of the complainant. And it is the specific plea taken by o.p. no. 2 that he had delivered the smooth and peaceful possession of the agreed portion as per development agreement of the newly constructed building at the scheduled premises to o.p. no. 1 and whether complainant is legally entitled to any portion in the said building is absolutely o.p. no. 1’s consideration. So, o.p. no. 2 has no latches on his part. Here we take a pause and turn our attention to the alleged agreement dated 29-03-2003 entered between o.p. no. 1, owner of the schedule premises as the first part, the instant complainant as the  second part and o.p. no. 2, developer as the third part. We have carefully gone through all the paras of the said agreement specially paras 2, 3, 4 & 5 and noted their contents. O.p. no. 2 had redelivered the covered space of 225 sq. ft. to the complainant as per the terms and conditions laid down in that Agreement dated 29-03-2003. If there  was no existence of that Agreement, why o.p. no. 2 handed over the possession of the covered space of 225 sq. ft. to the complainant at all ? And this plea cannot be taken by either of the o.ps. that complainant had forcefully occupied the portion of the said building as there is no F.I.R. lodged by either of the o.ps. Even there is no eviction suit is pending before any other Court of Law. As the complainant occupied the portion at the said premises with the consent of o.p. no. 1 before construction of the new multi storied building, he became his beneficiary. Now,  only to deprive the complainant, o.p. no. 1 is taking al lame pleas which can never be tenable in the eye of law. So, by not executing & registering the sale deed in favour of the complainant, o.p. no. 1 is found to be deficient in service. This arbitrary action should never be allowed to be perpetuated any more. Accordingly, it is our candid opinion that it is a fit case for allowing the prayer of the complainant in part.   Points under consideration are accordingly decided.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No. 4 of 2014 ( HDF  4 of 2014 )  be  allowed on contest  with  costs  against  the O.Ps. 

      That the  O.P. no. 1 is directed to execute a registered sale deed in favour of the complainant within one month from this date i.d., Rs. 50/- per day shall be imposed upon o.p. no. 1. O.p. no. 2 is  also directed to put his signature as the confirming party. The complainant is to bear all cost of registration including the purchase of stamp duty.

      No order as to compensation.

      The o.p. no. 1 is further directed to pay a litigation costs of Rs. 5,000/- to the complainant within 30 days from the date of this order i.d., 10% interest p.a. shall be imposed till actual payment.   

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.            

DICTATED  &    CORRECTED

BY   ME.  

      (  Jhumki Saha  )                                                                   

  Member, C.D.R.F., Howrah.