Judgment : Dt.21.9.2017
Shri S. K. Verma, President.
This is a complaint made by one Smt. Sandhya Maity, wife of Sri Joydeb Maity residing at 25B, Padmapukur Road, P.S.-Jadavpur, Kolkata-700 047 against Sri Ranjit Ghosh, son of Sri Dhiren Chandra Ghosh, 192B, Aswani Nagar, Police Station-Jadavpur, Kolkata-700 040, OP No.1, Sri Sudip Sardar, OP No.2, Sri Sandip Sardar, OP No.3, both sons of Late Sukumar Sardar, Smt. Sukla Adhikary, wife of Sri Jaydeb Adhikary, OP No.4, Sri Soumen Sardar, OP No.5, Smt. Soma Sardar, OP No.6, Smt. Anju Sardar, wife of Late Sukumar Sardar, OP No.7, all of 21C, Padmapukur Road, P.S.-Jadavpur, Kolkata-700 040, praying for a direction upon the O.P.s to execute and register the deed of conveyance in respect of the property mentioned in schedule B and a further direction upon the OPs to pay a sum of Rs.1,00,000/- as compensation and litigation cost.
Facts in brief are that OP No.2 to 7 are the joint owners of land measuring 3 cottahs 5 chittacks 20 sq.ft., situated at Mouza-Raipur, Khatian No.307, Dag No.350, Premises No.21C, Padmapukur Road, P.S.-Jadavpur, Kolkat-700 047, under KMC ward No.98. OP Nos.2 to 7 while having possession of this land entered into a development agreement with OP No.1 with a view to construct a multi storied building on certain terms and conditions. In pursuance of the said agreement for development, OP Nos.2 to 7 executed a power of attorney in favour of the developer. Developer completed the construction work G+3 storied building upon the land on 2.8.2004. Complainant is a monthly tenant under the OP Nos.2 to 7 in respect of a shop room measuring 60 sq.ft. on the ground floor. For raising a multi storied building upon the land, OP Nos.2 to 7 and the Complainant mutually settled for such construction. As a result of negotiation and discussion the Complainant and the OPs entered into a memorandum of agreement dt.15.12.2004. On the basis of the said agreement, it was settled that OPs shall handover and deliver a shop having 60 sq.ft. super built up area on the ground floor of premises No.21C, Padmapukur Road, P.S.-Jadavpur and this shop room is a subject matter of this case.
OP No.1 completed the construction of the building upon the land after receiving the entire consideration amount and handed over the possession of the shop room to the Complainant. In terms of the agreement, Complainant requested the OPs to execute and register the deed of conveyance in favour of the Complainant. But the OP No.1 did not comply such request. Having no other alternative, Complainant issued a legal notice for making the conveyance deed in her favour. Complainant stated that she is ready and willing to bear all expenses for execution and registration of the conveyance deed. Complainant has legal right to get the deed in her favour.
OP No.2 to 4 & 7filed written version and denied all the allegations of the complaint. It is the contention of these OPs that the complaint application is barred under the law. Complainant is not entitled to any relief which he has prayed for in the prayer portion of the complaint petition. Further, these OPs have stated that they never agreed to sell any shop room to the Complainant namely Sandhya Maity, they never received any consideration money. This complaint has been filed for unlawful gain. So, these OPs have prayed for dismissal of the complaint.
OP No.1 did not contest the case and so the case is heard ex-parte against OP No.1.
Decision with reasons
Complainant filed affidavit-in-chief to which contesting OPs filed questionnaire against which Complainant filed affidavit-in-reply. Similarly, contesting OPs filed evidence against which Complainant filed questionnaire to which 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 OPs to execute and register the deed of conveyance in favour of the Complainant in respect of the property mentioned in schedule B. Further, on perusal of the schedule B of the complaint, it appears that it is one shop room comprising an area of 6’ X 10’ sq.ft. on the ground floor of the newly constructed building situated at Mouza-Raipur, Khatian No.307, Dag No.350, premises No.21C, Padmapukur Road, P.S.-Jadavpur, Kolkata-700 047. However, a specific allocation of the shop room is not mentioned and demarcated by mentioning north, south, east and west of the shop room. Complainant has alleged that on the strength of an agreement for sale Complainant is entitled to this. There is a Xerox copy of agreement for sale is filed which reveals that this agreement for sale was entered on 15.12.2004 wherein the mentioning of schedule B is in the same way as it is mentioned in the complaint petition and no specific boundary of the shop room is provided. Further, there is no document to establish that Complainant was a tenant over the land where the building was constructed. Complainant has herself stated in paragraph 5 of the complaint petition that Complainant is a monthly tenant under the OP Nos.2 to 7 in respect of the shop room measuring 60 sq.ft. and he is entitled for that in terms of the agreement. There is no paper filed to establish that Complainant was ever assured by the developer that after construction he will be getting that shop room. Further, it appears that the building was completed on 2.8.2004 that is mentioned in the paragraph 4 of the complaint and the agreement for sale was entered into between the parties on 15.12.2004. That means, this is simply an agreement for sale of alleged shop room over which this Forum has no jurisdiction and it is governed by the specific provision of the specific relief act.
In the aforesaid facts and circumstances, we find that Complainant failed to prove the allegations which he brought in the complaint.
Hence,
ordered
CC/518/2016 and the same is dismissed on contest against OP Nos.2 to 4 & 7 and ex-parte against other OPs.
