Judgment : Dt.9.10.2017

Shri S. K. Verma, President.

            This is a complaint made by one Joydeep Das, son of Bivas Das, 150, Rashbehari Avenue, P.S.-Lake, Kolkata-700 029 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) and Sri Gopal Das, 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 O.P. to execute and register the deed of conveyance in respect of second schedule flat and a direction upon the  OP to hand over possession of the flat and compensation of Rs.1,80,000/- and litigation cost to the tune of Rs.20,000/-.

           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.2 & OP No.1 series entered into a development agreement for sale on 7.5.2015 for construction of a multi storied building. OP No.2 also executed a general power of attorney in favour of the developers, OP No.1 series. OP No.1(c) is the partner of the OP No.1(a) and 1(b). OP No.2 has been accepted the presence of the OP No.1(c). OP No.1(a), 1(b) and 1(c) as developers and OP No.2 as land owner were making construction of the multi storied building. Complainant with developers entered into a sale agreement on 18.1.2016 for a flat on the first floor measuring about 1200 sq.ft. super built up area, at a consideration of Rs.18,00,000/-. Complainant in terms of the agreement paid the entire consideration money in favour of the developers at the time of execution of the sale agreement. On several occasions Complainant requested the OPs to hand over the possession of the flat 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. The OPs in collusion and conspiracy with each other avoided to hand over the flat to the Complainant and also did not make the deed of conveyance. OPs are under obligation to hand over the possession and to make a deed of conveyance. But, since they did not do it, 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 there are aware about the fact of payment of Rs.10,00,000/-. Further, they have stated that the development agreement 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.18,00,000/-. 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 2^nd schedule. Further, on perusal of the 2^nd schedule of the complaint, it appears that it is about a flat measuring about 1200 sq.ft. super built up area under construction. There is no specific boundary mentioned of this flat. Further, it appears that one Xerox copy of development agreement is filed, which has been signed by the OP N.2 and OP No.1(a) & 1(b)and OP No1(c) has not signed it. 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 also signed. There is no mention of OP No.1(c).

            The agreement for sale is between Samir Kumar Das and Rudram Banerjee on the one hand and Complainant on the other hand. This agreement for sale states that purchaser agreed to purchase a 1200 sq.ft flat at a consideration of Rs.18,00,000/- and on the date of execution of this agreement for sale, Complainant paid Rs.18,00,000/- in cash. It is also mentioned that the flat would be ready within 18 months of the Agreement for Sale that means Complainant was to be handed over the possession by June, 2017. It appears from the record that Complainant filed this case on 2.1.2017 i.e. Complainant did not approach this Forum with clean hands. Also, the property mentioned in 2^nd 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/4/2017 and the same is dismissed on contest.