Judgment : Dt.20.11.2017
Shri S. K. Verma, President.
This is a complaint made by one Smt. Purnima Kundu, w/o Sri Jiban Kundu, resident of 2/47C/2 Vidyasagar Colony, P.S.-Netajinagar, Kolkata-47 at present residing as tenant at 2/52, Vidyasagar Colony, P.S.-Netajinagar, Kolkata-47 against Sri Dilip Kumar Dhar, S/o late Hemaja Ranjan Dhar of 1/23, Vidyasagar Colony, Kolkata-47, OP No.1 and Sri Dilip Kumar Ghosh, s/o Late Nagendra Chandra Ghosh of 1/29, Vidyasagar Colony, P.S.-Netajinagar, Kolkata-47 praying for stopping performance of illegal acts by stopping construction immediately by considering that the OPs are guilty of doing unlawful acts on the schedule property and direction upon the O.P. to continue the payment of Rs.5,000/- for the accommodation in which the Complainant along with her son was housed till the handing over the schedule property and direction to pay Rs.4,00,000/- as compensation and litigation cost of Rs.50,000/-.
Facts in brief are that Complainant is the absolute owner of the schedule property gifted to her by her husband Jiban Krishna Kundu by virtue of a deed of gift executed and registered in the office of ADSR, Alipore, in book No.1 CD Volume No.1 pages 1042 to 1053 being No.00058 for the year 2013. Complainant being the absolute owner used to possess it, OP No.1, Dilip Kumar Dhar approached the Complainant and proposed for constructing a new building on the land on joint venture basis and Complainant accepted this proposal. During continuance of the talk OP No.1 drew a sketch plan by own hand for consideration of Complainant in presence of her son, and the Complainant approved that sketch plan and thereafter OP No.1 asked the son of the Complainant to write down items which the Complainant will be provided by the developers after which OP No.1 dictated the six items which Complainant’s son reduced under the instruction of OP No.1. These six items are an agreement between Purnima Kundu and Dilip Kumar Dhar, searching of the schedule property was to be done by the developers, previous years unpaid tax of the property was to be paid by OP No.1, power of attorney was to be executed between the parties of the suit, for shifting of the Complainant, one rented house has to be found out for the accommodation of the Complainant and the rent will be paid by the OP No.1 per month and 50:50 of the total FAR will be divided between the Complainant and the OP. In another sheet of the same paper OP No.1 Dilip Kumar Dhar detailed 19 items to form the basis of specification of what the owner’s allocation shall contain : two bed rooms,. One dining room, one kitchen, two bath and toilet, verandah (at the back side and front side of the building where the Complainant will be provided with her accommodation), one shop room, doors and windows will be made with sagun wood, in every room four windows would be fixed, collapsible gate will be fixed in front of the main door, outside brick walls of the building will be 10”/8” and wall will be completed and made with putti and damp prove articles, wall almarahs, floor of bath room will be made with khoa of anti skit, the kitchen will be provided with boxes wherein materials can be pull alongwith exhaust chimney, deities room will be made with marble, drinking water line will be fixed separately one for kitchen and another outside the kitchen, geyser, linton, basin.
On 17.3.2016 OP No.1 called on Complainant at night and told the Complainant that on the day following an agreement for construction and general power of attorney would be executed and registered at ADSR, Alipore and asked the Complainant to sign those two documents instantly and the Complainant was compelled to sign those documents without having any opportunity to go through the contents of the document so placed and without having any opportunity to compare those with the offer previously made by OP No.1. Complainant asked why OP No.2 Dilip Kumar Ghosh was absent. On the following day both the documents were registered at the office of ADSR, Alipore on 18.3.2016. Complainant had no opportunity to examine the documents concerned. The well wisher of the Complainant an elderly man namely Nitya Ranjan Mazumder aged about 84 years was not informed also, although the OPs had taken his help a few days earlier for settlement of the matter. The son of the Complainant also kept in dark but his signature on the documents were procured and on false pretext and he was made to sign on the documents as witness. Thereafter, OPs demolished the previous construction of the Complainant’s premises by taking possession and the construction work was started by the OPs by gross violations of the previous undertaking as was given by OP No.1. The construction work was started with utmost haste without letting the Complainant know about it. The assured 50% construction area reduced to about 33%. The outside wall have been reduced from 10”/8” to 5” only. The main entrance door for ingress in and egress out from the house has been made measuring about 2 ft. wide making it unfit for use of human being. Similarly, OPs made many constructions which appeared to the Complainant illegal. Being aggrieved by the immoral and unlawful acts of the OPs, Complainant served a legal notice through her Advocate to stop the construction. But OPs did not stopped the construction. OPs stopped payment of house rent to the Complainant. So, Complainant filed this case.
OP No.1 filed written version and denied the allegations of the complaint. Further, OP No.1 has stated that both the parties agreed on the terms and conditions as mentioned in the registered agreement which was the outcome of several sittings and discussions from 22.2.2016 to 17.3.2016. During that period Complainant and her son who is a qualified person had sufficient time to go through the agreement and consider the matter. OP No.1 has also stated that he intended to complete the project within the contractual period. OP No.1 started construction by incurring loan and at this stage OP No.2 who has no contribution except contracting labour at the cost of OP No.1 started conspiring to oust the OP No. 2. On 17.10.2016 the Complainant issued a letter raising some false allegations in collusion and conspiracy with the OP No.2 and directed the OP No.1 to stop construction. Thereafter a proceeding under Section 144 Cr.P.C. before the 2nd Court of Ld. Executive Magistrate. OP No.1 has no capacity to draw any sketch map. This OP has denied the allegations of the Complainant and prayed for dismissal of the complaint
OP No.2 filed written version and denied the allegations of the complaint. Further this OP has stated that he does not have any specific comment. He has prayed for the complaint petition be set aside considering the denial of the allegations mentioned in the complaint petition.
Decision with reasons
Complainant filed affidavit-in-chief against this OP No. 2 filed questionnaire to which Complainant filed affidavit-in-reply. OP No.1 did not file questionnaire OP No.2 filed evidence. Thereafter Complainant filed questionnaire after that OP No.1 left taking step. OP No.2 filed affidavit-in-reply.
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 stopping further performance of illegal acts by stopping construction immediately by considering that the OPs are guilty of committing unlawful acts on the schedule property. So far as this prayer is concerned, we are of the view from the complaint petition that several allegations have been made that OP No.1 has exercised fraud and illegally taking the signature upon the registered agreement without informing the Complainant and her son and without disclosing of which OP No.1 is taking signature. In our view this fact cannot be adjudicated before the Consumer Forum. So, the question of stopping construction on the ground that OPs are guilty of committing unlawful act on the schedule property cannot be allowed.
Second prayer of Complainant is for continuance of the payment of Rs.5,000/- for the accommodation in which the Complainant with her son was housed till the handing over the schedule property to the Complainant in as is wherein basis. This prayer as it appears from the agreement between the parties is that OP No.1 has agreed to pay the rent. In the prayer it reveals that Complainant and her son has left the rented accommodation. No document is filed to establish as to what amount is due which was not paid by OP No.1 as per agreement till the time Complainant remained in the rented accommodation. Unless this is furnished it cannot be allowed.
Furthermore, it appears that the agreement between the Complainant and the developer was made on 18.3.2016 and it was agreed between the parties that in the 6 page of the agreement for sale that the developer shall complete and finish the building within 18 months from the date of getting the vacant possession. Since the agreement was entered on 18.3.2016, it can be presumed that vacant possession was handed over to the OP No.1 either on that day or on the next day which normally occurs. Further, it appears that this complaint was filed on 29.11.2016 which means that after about 8 months only. Whereas, as per the terms of agreement the construction was to be completed within 18 months. So, this complaint has been filed at a premature stage, which, on this ground, cannot be adjudicated.
Accordingly, Complainant is not entitled to this relief also. Complainant has further prayed for compensation of Rs.4,00,000/- and litigation cost of Rs.50,000/-. Since the main prayer is not allowed, the question of granting compensation and litigation cost do not arise.
Hence,
ordered
CC/562/2016 and the same is dismissed on contest.
