Judgment dt.18-08-2016
This is a complaint made by Smt. Gouri Das wife of Shri Barid Baran Das residing at 46, Basudevpur Road, P.S. Behala, Kolkata-700 061 against Shri Partha Mukherjee, Shri Pratip Mukherjee, Shri Swapan Halder (Constituted Attorney Holder) and M/s. Rupam Construction praying for a direction upon the OP to execute and Register Deed of Conveyance in favour of Complainant regarding the relevant flat and car parking space after receiving the rest consideration amount from the Complainant and also passing decree to pay compensation to the tune of Rs.55,000/- with interest and litigation cost of Rs.35,000/-.
Facts in brief are that OP No.1 and 2 were the owners of one property measuring about 12 Cottahs 6 Chittacks 19 Square feet in R.S.Dag No.372/4052 of Mouza Paschim Barisha. OP No.1 & 2 being the owners of property entered into an agreement for development on 29/12/2009 with OP No.4 and subsequently executed one registered Power of Attorney in favour of OP No.3.
Complainant entered into an agreement on 25th January, 2011 with the OP for purchasing a flat being no.1”F” having super built up area of 825 Sq. ft. in the first floor and also car parking measuring about 120 Sq. ft. on the ground floor on a total G + IV storied. At the time of agreement for sale Complainant paid Rs.1,10,000/- as part payment of total consideration money of Rs.9,00,000/- on 25th January, 2011 and 4/12/2011 respectively. After completion of the building OP failed and neglected to deliver the flat and car parking space in favour of the Complainant. Complainant on several occasion requested the OP for delivery of the said flat and car parking space but of no use. Thereafter Complainant issued notices through her advocate but even then OP did not comply the terms and condition of the agreement for sale.
OP No.1 filed written version wherein he has denied all the materials allegations of the complaint. Further it is stated in this written version that Point No.5 in the agreement for sale it is mentioned that both purchaser and vendor agreed that sale shall be made after completion of the proposed building or within 18 months of the said agreement. Though the building was completed within time but Complainant did not show any interest for purchasing the flat. Complainant never contacted OPs. So OP No.1 has prayed for dismissal of this complaint.
OP No.3 & 4 also filed written version and denied all the allegations of the complaint. They have stated that no deficiency of service can be alleged on them because they did not construct the building and as such they also prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint. Against this OP No.1, 3 & 4 filed separate questionnaire. Thereafter Complainant filed affidavit-in-reply. OP also filed evidence on affidavit.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the complaint it appears that Complainant has prayed for a direction upon the OP to execute and register deed of conveyance in favour of Complainant regarding relevant flat which is mentioned in the schedule of the complaint and car parking.
It appears that Xerox copy of the agreement for sale which has been filed before this Forum has been signed only by Partha Mukherjee. Even in the last page one Swapan Halder is a proprietor of M/s. Rupam Construction has signed. But Complainant has not signed on the agreement for sale. In paragraph 4 of the complaint it is clear that the agreement was signed on 25/1/2011. Xerox copy of the agreement for sale mentioned this date but surprisingly Smt. Gouri Das has not signed on this.
Accordingly, in our view this agreement for sale cannot be an agreement in favour of the Complainant and it cannot be binding on OP No.2 & 3. Further it appears that Complainant has prayed for execution of registered deed of conveyance by OP after receiving the rest consideration money. As per Complainant she has paid Rs.1,10,000/- which appears to be mentioned in Xerox copy of the agreement for sale but for which no receipt has been filed that means rest of the amount is to be paid by the Complainant if alleged agreement is believed which comes to Rs.7,90,000/-. Further Complainant has not prayed for refund of the money paid by her.
Since agreement does not appear to be effective and binding we are of the view that prayer for registration cannot be allowed.
Similarly, prayer for compensation and litigation cost do not deserve to be allowed because the complaint has been filed without any basis.
Hence,
O R D E R E D
CC/27/2016 and the same is dismissed on contest.
