This is a complaint by one Sri Tarunendu Majumdar, son of Late Manish Chandra Majumdar and Sri Debrup Majumdar, son of Sri Tarunendu Majumdar, both residing at “Amar Bari”, Block – Dakshina, Flat No.2C, 221, B.B.Chatterjee Road, P.S.-Kasba, Kolkata – 700 042 against Sri Samir Das, Son of Late Ramesh Ch. Das, proprietor of M/s. G. P. Construction, having its office at 132, Avenue South, P.S.-Survey Park, Kolkata – 700 075 and also at 10A, School Road, East Rajapur, Kolkata-700075, P.S.- Santoshpur, now Survey Park, Dist.-South 24-Parganas, praying for direction upon the OP to handover the flat as agreed to the Complainant as mentioned in the schedule and a direction upon the OP to pay the Complainant the amount as per agreement Rs.3,25,000/- along with interest of 12% p.a., direction upon the OP to pay compensation of Rs.2,00,000/- for harassment and mental agony and litigation cost of Rs.50,000/- and also to pass injunction, receiver, attachment and interest.
Facts in brief are that one Manika Majumdar was the absolute owner of the land measuring 3 cottahs 8 chittaks 15 sq.ft. along with structures lying and situated at Mouja – Barhans Fartabad, Touji No.109, J. L. No.47, R.S. No.7, Dag No.3229, Khatian No.1749 under Sonarpur P.S.
Said Manika Majumdar being desirious of making a project on the land entered into agreement with the OP on 22.3.2009. But, unfortunately said Manika Majumdar died intestate on 21.11.2009, leaving behind her husband the Complainant No.1 and a son Complainant No.2. After the death of Manika Majumdar Complainants entered into a development agreement with the OP on 28.7.2010 for development of the said land and to construct to multistoried building thereon.
As per agreement OP agreed to provide to the Complainants a self contained flat measuring about 750 sq.ft. super built up area on the 2nd floor. Developer also agreed to pay Rs.6,00,000/- to the owners i.e. the Complainants on different dates i.e. at the time of agreement Rs.2,25,000/-, at the time of completion of roof Rs.1,75,000/- and after full completion Rs.2,00,000/-.
OP also agreed that the building shall be completed within eighteen months from the date of sanction of the plan. Complainants handed over all ownership documents to the OP and also executed general power of attorney to construct the building after obtaining sanctioned plan from the Municipality. OP already constructed the building. But, did not provide the flats as agreed to the Complainants. OP handed over possession to other buyers by resiling the agreement.
Moreover, OP did not pay Rs.3,25,000/- as agreed. Complainants made repeated requests to the OP for handing over the possession. But, OP did not pay any heed to that. Complainant being harassed of OPs, issued a letter through her Advocate demanding the flat and the money. OP agreed to provide a flat to the Complainant. But did not handover it. Complainants have legal right to get appropriate relief from this Forum. So, Complainants filed this case.
On the basis of the above facts the complaint was admitted and notice was served upon the OP. But, OP did not appear to contest the case and so the case was fixed for ex-parte hearing.
Decision with reasons
Complainants filed affidavit-in-chief wherein Complainants have reiterated the facts mentioned in the complaint petition. Complainants also filed written argument where also Complainants have stated the same facts which they have reiterated in the Complaint petition.
Xerox copy of the development agreement which has been filed before this Forum bears only the signature of one Samir Das with seal of G.P.Construction. However, no signature of either any of the Complainants or mother of the Complainants appear on the development agreement. But, one page is annexed with this development agreement where some finger impressions/L.T.I.s appear to have been put and the name of Tarunendu Majumdar and Debrup Majumdar is written. However, the question is when Complainants put their L.T.I. and gave their photocopies why they did not sign in any other pages of this development agreement. There is no answer or explanation of this on behalf of the Complainants. Accordingly, it appears that it is hard to believe that in the agreement concerned the Complainants were present and they put their signature. This also gets support from the development agreement which has been filed with the complaint. It is because the Xerox copy of the development agreement which was filed by the Complainants with the complaint is of 21 pages and it does not bear signature of any person or any of the parties. As such, it appears that the allegation of Complainants cannot be believed. Further, it appears that the number mentioned on the Xerox copy of the Non Judicial Stamp of Rs.10 is 38AA 023501 where as the development agreement which was filed at the time of argument bears the number is 37AA 823950 that means both the development agreements is not the copy of the original and unless original comes before the Forum, it appears that there is some manipulation at the time of making of the development agreement.
In the circumstances, in the aforesaid facts, we are of the view that Complainants failed to prove their allegation.
Hence,
ordered
CC/382/2016 is dismissed ex-parte.
