Judgment : Dt.27.6.2017
This is a complaint made by one Smt. Ranu Paul, wife of Sri Samir Ranjan Paul of 201, Jadunath Ukil Road, 1st floor, flat No.2 of Haridevpur P.S. against (1) Sri Debasish Saha, OP No.1, (2) Smt. Dipti Pal, OP No.2, (3) M/s Pushpadeep Construction, OP No.3 and (4) Sri Satyabrata Chowdhury, Proforma OP, praying for a direction upon OPs to hand-over the entire possession of flats to the Complainant as per agreement dt.2.7.2014 together with the Completion Certificate from the concerned authority and a compensation of Rs.7,00,000/- for the loss sustained by the Complainant an award for mental agony Rs.3,00,000/- an award for harassment Rs.1,00,000/- and litigation cost of Rs.1,00,000/-.
Facts in brief are that Complainant was absolute owner of land measuring 1 cottah 8 chittak at premises No.201/A, Jadunath Ukil Road and Proforma OP No.4 was owner in respect of 1 cottah 4 chittak near the Complainant’s land. Both Complainant and Proforma OP No.4 approached OP No.1 to 3 for development of their land and OP No.1 and 2 agreed to develop the said premises for construction of new building. Accordingly, on 2.7.2014 a registered agreement for development entered into between OP No.1 & 2 and power of attorney was also executed by Complainant and proforma OP. Thereafter, it was agreed that OP No.1 & 2 shall handover to Complainant two flats completing in all respects each measuring 600 and 650 sq.ft. super built up area, one on the first floor and the other on the ground floor as per the sanctioned plan. As per the sanction plan OP No.1 & 2 constructed two flats in each floor. But, on the ground floor two single room flats were constructed violating sanctioned plan. Complainant objected to this. Thereafter, dispute arose between the Complainant and OP No.1 & 2. OP No.1 & 2 wanted to handover possession of one flat on the first floor without completion certificate. Complainant vacated the tenanted premises. But, she was not handed over possession of the flats in terms of the development agreement.
OPs filed written version and denied the allegations of the complainant. However, they have admitted that Complainant and proforma OP for the purpose of developing and constructing jointly a pucca multi storied building in respect of their premises approached the OP No.1 & 2 representing the OP No.3, who agreed to develop the land. The OP has also admitted that Complainant as one of the owners of the aforesaid premises was allocated two flats measuring 600 and 650 sq.ft. of super built up area one on the first floor front side and other in ground floor back-side. Proforma OP was allocated 400 sq.ft. on the ground floor along with an amount of Rs.3,00,000/-. Further, OP has stated that OP No.3 was allocated remaining portion of the constructed area. It was also agreed that OP would provide accommodation to Complainant. Thereafter, OP No.1 & 2 started construction and two flats measuring 600 and 650 could not be built and in that place two flats of 730 sq.ft. and 702 sq.ft. were built. On this OP No.1 & 2 asked Complainant to pay @ Rs.5,000/- per sq.ft. being the market price of the excess area. But, Complainant refused.
Complainant has filed a title suit No.645 of 2016 before the 5th Court of Civil Judge, Junior Division at Alipore, on the same ground, which is still pending. In that title suit the Ld. Civil Judge has passed an injunction order. Despite that Complainant filed this case just to harass the OPs.
Decision with reasons
Complainant filed affidavit-in-chief against which OP filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire and OP filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint petition, it appears that Complainant has prayed for a direction upon the OP to handover the entire possession of flats to the Complainant as per agreement dt.2.7.2014.
The dispute relates to OP No.1 & 2 and the Complainant, on the ground that OP No.1 & 2 did not handover possession of two flats, measuring 600 and 650 sq.ft. In this regard, it is the contention of OP No.1 & 2 that two flats of this measurement could not be made and actually the two flats were excess in area, measures about 730 and 702 sq.ft. For this, OP No.1 & 2 asked Complainant to pay charges for the excess area which was not agreed upon. But, Complainant did not agree to pay charges. So, the dispute began and Complainant intends to have the two flats without making any payment of the excess area, which OP No.1 & 2 were ready to handover.
For this purpose, Complainant filed a title suit before the Civil Court. The copy of the plaint has been filed.
On perusal of the copy of the plaint, it appears that Complainant filed a suit for declaration and injunction in the Civil Court praying for declaration that the plaintiff is absolute owner of two flats one on the first floor front portion and other on the ground floor of the building including proportionate area as per the agreement dt.2.7.2014 and injunction restraining the OP their men, agent from transferring or alienating of the said two flats of the building, which was constructed as per the agreement dt.2.7.2014.
That means the prayer made in the Civil Suit and the prayer made before this Forum are by and large are same. Further, it appers that Complainant filed Civil Suit before filing of this complaint. As such, we are of the view that if the allegations of Complaint are adjudicated here it would amount to multiplicity of proceeding. Furthermore, there is no material to establish as to whether Complainant paid the amount of the area which was constructed in excess of the agreed terms i.e. agreement dt.2.7.2014.
As such, we are of the view that Complainant is not entitled to the reliefs.
Hence,
ordered
CC/333/2016 and the same is dismissed on contest.
