Judgment : Dt.7.3.2017
This is a complaint made by Smt. Runu Bhowal, wife of Shyamal Chandra Bhowal, residing at 82/41, Prince Golam Hossain Shah Road, P.S.-Jadavpur, Kolkata-700 032 against (1) Sri Pradip Kumar Das, son of Sri Narayan Chandra Das, residing at 209, Bikram Garh Colony, P.S.-Jadavpur, Kolkata-700 032, OP No.1, (2) Prasanta Kumar Das, son of Late Ramnath Das, OP No.2, (3) Nilima Das, wife of Late Sujit Kumar Das, OP No.3 and (4) Miss Namita Das, daughter of late Ramnath Das, 82/41, Prince Golam Hossain Shah Road, P.S.-Jadavpur, Kolkata-700 032, OP No.4, praying for a direction upon the OPs for execution and registration of deed of conveyance in favour of the Complainant and an order for completion of the finishing work of the building and compensation of Rs.25,000/, cost of Rs.50,000/-, another compensation of Rs.1,60,000/- for unfair trade practice and also interest @ 2% p.m. on the awarded amount.
Facts in brief are that Complainant agreed to purchase one flat from OP No.1, developer, having 340 sq.ft. on the 2nd floor (back side) of Golam Hossain Shah Road at the consideration money of Rs.2,72,000/-. On 5.7.2006 OP No.1 received the entire consideration money and on 2.9.2013 stopped the finishing work of the building. Complainant requested the OP to complete the finishing work and execute and register the deed of conveyance. But, found that OP No.1 constructed the flat with an area of 270 sq.ft/311 sq.ft. instead of 340 sq.ft. in terms of the agreement. The deficit area was valued of Rs.25,000/-. As per the agreement, OPs are obliged to finish the completion work and register the flat in favour of the Complainant. Since OPs did not register the flat, Complainant sent a notice and no result could be yielded. So, Complainant filed this case.
OP No.2 to 4 filed written version and denied the allegations of the Complainant and prayed for dismissal of the case. Further, they have stated that OP No.1 did not hand over the owner’s allocation and he is trying to evade from performing his obligation. On the contrary, OP No.1 has handed over possession of the flats of his allocation. Further these OPs have stated that since they have not been made parties to the agreement for sale, Complainant is not entitled to the relief. OP No.1 has not filed written version and so the case was heard ex-parte against OP No.1.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against that OP No.2 to 4 filed questionnaire to which Complainant replied. OP No.2 to 4 filed affidavit-in-chief against which Complainant filed questionnaire to which OP No.2 to 4 replied.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for making the conveyance deed in his favour. It is mentioned in the complaint petition and affidavit-in-chief that Complainant is in possession of the flat. Further, on perusal of the agreement for sale, it appears that there was an agreement between the Complainant and the OP No.1, wherein OP No.1 agreed to sale the flat mentioned in the map annexed to the agreement for sale. Further, it appears that there is no document to establish that Complainant made payment of the consideration amount. Since, OP No.1 did not file written version and did not contest the case, it is difficult to ascertain as to whether Complainant paid the money or not. It is settled principle of law that for getting relief Complainant has to establish the allegation made in the complaint petition, which is absent here. As such, we are of the view that Complainant is not entitled to the reliefs prayed for.
Hence,
ordered
CC/358/2016 is considered and dismissed on contest against OP No.2 to 4 and ex-parte against OP No.1.
