Judgment : Dt.30.8.2017

Shri S. K. Verma, President.

            This is a complaint made by one Sri Anirban Sengupta, son of Sri Atunu Sengupta, residing at 196, Picnic Garden Road, E/1, Tiljala, Kolkata-700 039 against – (1)(a) Sri Samir Das, son of Dilip Das, residing at 143/158A, Picnic Garden Road, P.S.- Tiljala, Kolkata-700 039, OP No.1, (1)(b) Sri Rudram Banerjee, son of Sri Biren Banerjee, residing at 196E/1, Picnic Garden Road, P.S.-Kasba, Kolkata-700 039, OP No.2, (1)(c) Haidar Ali Khan son of Late Fida Hussain Khan, 77A, Tapsia Road, P.S.- Tiljala, Kolkata-700 039, OP No.3 and (4) Sri Gopal Das, son of Sri Prafulla Chandra Das, residing at B/5, Ganga Nagar, P.S.-Purba Jadavpur, Kolkata-700 099, OP No.5, praying for a direction upon the O.P. to execute and registration of deed of conveyance in respect of 2^nd schedule property and further direction for handing over possession of the flat in favour of the Complainant, compensation for unfair trade practice to the tune of Rs.3,00,000/- and Rs.1,00,000/- for increase in stamp duty and Rs.20,000/- as cost of proceeding.     Facts in brief are that OP No.1 series is a reputed promoter. OP No.2 is the owner in respect of the piece of land measuring about 3 cottahs 13 chittaks, more or less comprised in Mouza – Kaliapur, J.L.No20, Dag No.375(P), premises No.B/5, Ganga Nagar, P.S.- Purba Jadavpur. OP No.2 is land owner and OP No.1 series entered into a development agreement on 7.5.2015. Land owner OP No.2 also executed a General Power of Attorney dt.7.5.2015 in favour of the developers. OP No.1(c) is the partner of OP No.1(a) and 1(b) and OP No.2accepted this power of attorney in presence of OP No.1(c).

            Complainant requested the developer to provide him one flat measuring 600 sq.ft. super built up area . Developer agreed with the proposal of the Complainant and entered into a sale agreement on 6.12.2015 on a consideration price of Rs.12,60,000/-. Complainant in terms of the said agreement dt.6.12.2015 paid Rs.10,00,000/- in favour of the developers at the time of execution of the sale agreement and the balance amount was to be paid at the time of registration of the sale deed. On several occasions Complainant requested the OPs to handover possession in favour of the Complainant and also requested the OPs to execute and register the deed of conveyance in favour of the Complainant. But the OPs failed and neglected to hand over the possession and did not also execute any registration deed. OP in collusion and conspiracy with each other are avoiding to handover the flat in favour of the Complainant. On 30.11.2016 Complainant requested the OPs to handover possession and execute a sale deed, but, of no use. So, Complainant filed this case.

            OP No.1(c) and OP No.2 filed written version and denied the allegations of the complaint. They have stated that they are not aware of the fact as to whether Complainant paid Rs.10,000/- and if paid to whom. Further, they have alleged that all the allegations made in the complaint are false and baseless and so they have prayed for dismissal of the complaint. Other OPs did not appear for contesting the allegations of the complaint and so against the other OPs the case is heard ex-parte.

Decision with reasons

            Complainant filed a petition praying for treating the complaint as affidavit-in-chief and the prayer was allowed. Against this, contesting OPs filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, contesting parties filed evidence against which Complainant filed questionnaire to which contesting OPs did not file affidavit-in-reply and they also did not participate in argument.

            Main point for determination is whether Complainant is entitled to the reliefs as prayed for.

            On perusal of the petition of complaint, it appears that Complainant has prayed for a direction upon the OPs for executing and registration of the deed of conveyance as well as for handing over the possession of the flat as mentioned in 2^nd schedule.

            On perusal of the 2^nd schedule, it appears that a flat measuring 600 sq.ft. super built up area consisting of two bed rooms, one dining, one kitchen, one balcony and one bath cum privy is the subject matter of dispute. Complainant has filed Xerox copy of development agreement which reveals that there was an agreement between Gopal Das and Samir Kumar Das and Rudram Banerjee. Gopal Das, OP No.2 who is allegedly owner of the land, there are three developers in the complaint. However, this development agreement reveals that it was entered with owner Samir Kr. Das and Rudram Banerjee. Further more, Xerox copy of power of attorney is filed. This power of attorney reveals that Gopal Das made power of attorney in favour of the Samir Das and Rudram Banerjee. Now, copy of agreement for sale has been filed. This agreement for sale has been entered between Gopal Das, Anirban Sengupta and Samir Das and Rudram Banerjee, wherein it is stated that the Complainant agreed to purchase a flat having super built up area of 600 sq.ft. at a consideration of Rs.12,60,000/- and he agreed to pay Rs.10,00,000/- at the time of agreement and rest Rs.2,60,000/- at the time of delivery of possession of the flat. Further, it reveals that Complainant paid Rs.10,00,000/- to the OPs. So, these agreements clearly reveals that there was an agreement for sale between the Complainant and OPs.

            There does not appear any discrepancy in the questionnaires put and reply filed. It is clear that Complainant is entitled to the flat after paying the rest of the money. So far as the compensation of Rs.3,00,000/- and Rs.1,00,000/- for increase in stamp duty are concerned, we are of the view that these can only be allowed if Complainant proves its allegations and approaches this Forum with clean hands.

            On perusal of the paragraph 3 of the agreement for sale, it is clear that the registration for sale transaction shall be completed within 18 months from the date of signing of this agreement. The agreement was signed on 6.12.2015. Accordingly, Complainant would have cause of action for filing this case on 6^th June, 2017. But, it appears that Complainant filed this complaint on 19.12.2016 after about one year of the signing of this sale agreement at a premature stage.

            Accordingly, we are of the view that Complainant is not entitled to any relief because he did not approach the Forum with clean hand.

            Hence,

ordered

            CC/611/2016 and the same is dismissed on contest against OP No.2 and OP No.1(c) and ex-parte against other OPs.