Judgment : Dt.25.9.2017
Shri S. K. Verma, President.
This is a complaint made by one Sri Animesh Seal, son of Sri Narayan Seal, residing at 2/2-Z, Picnic Garden Road, P.S.-Tiljala, Kolkata-700 039 against Sri Samir Das (developer), son of Dilip Das, residing at 143/158A, Picnic Garden Road, P.S.-Tiljala, Kolkata-700 039, OP No.1(a), Sri Rudram Banerjee (developer), son of Sri Biren Banerjee, residing at 196E/1, Picnic Garden Road, P.S.-Kasba, Kolkata-700 039, OP No.1(b), Haidar Ali Khan (Developer), son of late Fida Hussain Khan, 77A, Tapsia Road, P.S.-Tiljala, Kolkata-700 039, OP No.1(c), Sri Gopal Das (Owner), son of Sri Prafulla Chandra Das, residing at B/5, Ganga Nagar, P.S.-Purba Jadavpur, Kolkata-700 099, OP No.2, praying for a direction upon the OPs to execute and register the deed of conveyance in respect of flat mentioned in 2nd schedule and also handover possession of the flat and a direction for payment of compensation to the tune of Rs.3,00,000/-, Rs.1,00,000/- for increasing stamp duty and Rs.20,000/- for litigation cost.
Facts in brief are that OP No.1 series is a reputed promoter and has been carrying on business of development and construction since many years. OP No.2 is the owner in respect of the land measuring about 3 cottahs 13 chittaks, comprised in Mouza – Kalipur, J.L.No.20, Dag No.375(P), premises No.B/5, Ganga Nagar, P.S.-Purba Jadavpur, Kolkata-700 099. OP No.2 is the land owner. OP No.1 & 2 entered into agreement for sale on 7.5.2015. Land owner also executed a general power of attorney in favour of the developers. OP No.1(c) is the partner of the OP No.1(a) and 1(b) and OP No.2 is the land owner. Complainant requested the developer to provide him one flat measuring about 600 sq.ft. super built up area at the ground floor. Developers agreed to enter into sale agreement on 8.1.2016 for selling the flat measuring 600 sq.ft. super built up area, at a price of Rs.12,60,000/-. Complainant as per the terms and conditions of the sale agreement dt.8.1.2016 paid Rs.10,00,000/- to the developers at the time of execution of the sale agreement and the balance consideration was to be paid at the time of registration of the sale deed. Complainant made request on several occasions to hand over the possession, but of no use. OPs in collusion neither handed over possession nor made a deed of conveyance in favour of the Complainant. So, Complainant filed this case.
OP No.1(c) and OP No.2 filed written version and denied all the allegations of the complaint. These OPs have stated that they are aware about the fact of payment of Rs.10,00,000/-. Further, they have stated that the development agreement which was executed on 7.5.2015. But, the developers did not complete the construction work as per terms and conditions OP No.1(b) intimated OP No.2 that they are not in a position to complete due to illness of OP No.1(a), so, they want to appoint another promoter and because OP No.2 himself was in distress, he does not know about any payment of Rs.10,00,000/-. They are not under obligation to execute and register the deed and hand over possession also. Complainant is not entitled to any relief. So, these OPs prayed for dismissal of the complaint. OP No.1(a) & (b) did not contest the case by filing written version and so the case is heard ex-parte against them.
Decision with reasons
Complainant filed affidavit-in-chief to which OP No.1(c) and OP No.2 filed questionnaire to which Complainant filed affidavit-in-reply. Similarly, OP No.1(c) and OP No.2 filed affidavit-in-chief to which Complainant filed questionnaire and OP No.1(c) and OP No.2 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 a direction be given to OPs to execute and register the deed of conveyance in respect of the flat mentioned in the 2nd schedule. Further, on perusal of the 2nd schedule of the complaint, it appears that it is about a flat measuring about 600 sq.ft. super built up area consisting of two bed rooms, one dining, one kitchen, one balcony and one bath cum privy of the four storied building in the ground floor, north west side with proportionate share. There is no specific boundary of this flat. Further, it appears that one Xerox copy of development agreement is filed, which is between Gopal Das, Samir Kumar Das and Rudram Banerjee. Samir Das is OP No.1(a) and Rudram Banerjee is OP No.1(b) and Gopal Das is the owner. It does not talk about OP No.1(c). Similarly, one general power of attorney has been filed, which reveals that OP No.1(a) and 1(b) have signed on it and OP No.2 Gopal Das has signed. There is no mention of OP No.1(c).
The agreement for sale is also between Samir Kumar Das and Rudram Banerjee on the one hand and Complainant on the other. This agreement for sale states that purchaser agreed to purchase a 600 sq.ft flat at a consideration of Rs.12,60,000/- and on the date of execution of this agreement for sale, Complainant paid Rs.10,00,000/- in cash. No receipt is filed of payment of Rs.10,00,000/- in cash. Further, it appears that the development agreement and power of attorney were executed on 7.5.2015 and agreement for sale was executed on 8.1.2016 that means after about 7 and 8 months of the authority given to OP No.1(a) and OP No.1(b) for constructing the building. Surprisingly, on this day Complainant paid Rs.10,00,000/- in cash. It is also mentioned that the flat would be ready within 18 months of the development agreement that means Complainant was to be handed over the possession by June, 2017. It appears from the record that Complainant filed this case on 21.12.2016 i.e. Complainant did not approach this Forum with clean hands. Also, the property mentioned in 2nd schedule is not specific and if any order in favour of the Complainant is passed it would be an in-executable order.
So, we are of the view that Complainant failed to prove the allegations.
Hence,
ordered
CC/620/2016 and the same is dismissed on contest.
