No. 3/23.08.2011.

HON’BLE JUSTICE SRI PRABIR KUMAR SAMANTA, PRESIDENT.

Appellant and Respondent No. 1 are present through their Ld. Advocates.  Respondent No. 1 files supplementary Affidavit.

This appeal is by the Complainant against the order of dismissal of his complaint.  It is the case of the Complainant that he entered into an agreement for purchase of a flat with the O.Ps on 30.01.2008 and in terms of the said agreement paid an earnest money of Rs.1,50,000/-.  It is evident from the materials on record that the Complainant that apart from payment of the aforesaid earnest money no further amount has been paid by him to the O.Ps in terms of the said agreement till the date of filing of the above complaint case.  In the above complaint it has been alleged that the building plan has though been sanctioned for construction of a building but the O.P. No. 1 failed to handover the scheduled flat to the Complainant upon completion of construction within the period mentioned in the said agreement.

It appears from the records of this case that after the aforesaid agreement dated 30.01.2008 was entered into by and between the parties, the Complainant had not made any further payment to the O.P. No. 1 in terms of the said agreement.  For which the O.P. No. 1 has filed Title Suit No. 145 of 2010 in the Second Court, Civil Judge at Howrah for declaration that the aforesaid agreement for sale dated 30.01.2008 executed by and between the parties became unenforceable, cancelled and for further declaration that the same has stood rescinded with consequential prayer for permanent injunction restraining the Complainant – defendant including his men, agents and associates from dispossessing the plaintiff from the scheduled flat and also for restraining him from disturbing the possession of the plaintiff – O.P. No. 1 in the suit property. 

It is not in dispute that the said suit is still pending for adjudication before the aforesaid Civil Court.  In view of the pendency of the aforesaid suit with the prayer for declaration that the said agreement has become unenforceable between the parties in law, the question of deficiency of service, if any by the O.P. No. 1 towards the Complainant for not handing over the flat in question to the Complainant within the period mentioned in the said agreement dated 30.01.2008 does not arise at this stage. 

We are, therefore, in agreement with the Forum below that this Complainant on the allegation as aforesaid, in view of the pendency of the above civil suit as above is not maintainable at this stage.  The appeal is accordingly dismissed.