This is a complaint made by one Sri Mano Ranjan Roy, son of Late Ramani Mohan Roy of 17, Bagmari Lane, B.R.S.10, Block-2, Flat No.20, Kolkata-700 054, presently residing at Metropolitan Co-operative Housing Society, Sec-B, Plot No.92, Kolkata-700 105, against Sri Sanjib Dey, son of Sri Subhas Chandra Dey, residing at E-44, Kalachand Para, P.S.-Regent Park, P.O.-Garia, Kolkata-700 084 also of plot No.52, Block-H, Baisnabghata Patuli area Development Project, P.S.-Patuli, M/G-2, Kolkata-700 084 and also of 40, South Roy Nagar, P.O.+P.S.- Bansdroni, Kolkata-700 070, praying for direction upon the OP to handover the possession of the entire 2nd and 3rd floor of the building and 200 sq.ft space of the ground floor of the building at Plot No52, Block-H, Baisnabghata Patuli Area Development Project, P.S.-Patuli, M/G-2, Kolkata-700 084 as mentioned in the Schedule B and also a direction upon the OP to pay compensation of Rs.1,00,000/- and restraining the OP from transferring, alienating and handing over possession of the suit property and litigation cost.
Facts in brief are that by an indenture of a lease dt.22.8.1991 registered at ADSR Alipore, vide Book No.1, Volume No.35, Pages 376-387, Deed No.1541 for the year 1991, the Calcutta Metropolitan Development Authority, granted a lease for a period of 999 years in respect of a plot of land measuring 135 M 2 be the same a little more or less being Plot No.l52 in the Block-H, in category MIG-11 of Baishnabghata Patuli Area Development Project, under P.S. – Jadavpur, now under the limits at the KMC, Ward No.101, in favour of the Complainant.
Complainant is lawfully in possession of the said land and being desirous to construct a G+3 storied building on the said leasehold land entrusted the development work to OP with certain terms and conditions. A memorandum of understanding was executed on 10.12.2010 between the Complainant and the OPs with a view to raise a G+3 storied building. Complainant also executed a power of attorney in favor of the OP. It was agreed that on completion of the constructed building, Complainant shall be entitled to get the entire second floor of the proposed G+3 storied building and half of the 3rd floor and 200 sq.ft. more or less of the car parking space at the South West side on the ground floor at the proposed building. OP, in lieu of the cost of the construction, will be entitled to get the entire first floor and half of the 3rd floor and remaining car parking space on the ground floor.
Said G+3 storied building shall be constructed by the developer at his own cost and expenses as per the plan to be sanctioned by the K.M.C. and Complainant shall not invest any amount for such construction. Complainant shall pay an amount of Rs.5,00,000/- to the developer towards purchase of the rest half portion of the 3rd floor of the said building from the developer’s allocation portion. Initially an amount of Rs.1,00,000/- will be given by the Complainant to the developer after commencement of the construction and remaining amount will be given by the Complainant to the developer after completion of the construction of the said building. In schedule B the said entire 2nd and 3rd floor of the building and 200 sq.ft. more or less car parking space are mentioned.
As per the terms the building shall be completed within 18 months from the date of sanctioned building plan and as per specification of the construction no further grace period will be provided to the developer. According to the building sanctioned plan, the developer has completed the construction of the building upon the ground floor and 1st floor. But the OP has not yet handed over the possession of the allocated share of the Complainant by completing the construction in all respect.
Complainant on several occasions requested the OP to hand over the allocation of the Complainant’s share in respect of the said building. But, with some ulterior motive OP avoided the handing over the possession. Complainant is a senior citizen aged about 75 years and is prejudiced due to the act and conduct of the OP, having no other alternative Complainant, through his Ld. Advocate Mr. Rajib Mohan Chatterjee sent a letter on 8.12.2015 to the OP to handover the owner’s allocation as per the terms. But of no use.
Further, Complainant has come to know that OP is making attempt to transfer the flats of Complainant’s allocation to the other persons. So, Complainant filed this case.
OP filed written version and denied all the allegations of the complaint. Further, OP has stated that Complainant entrusted the property to OP for constructing a G+3 storied building and to that effect Memorandum of Understanding was executed between the parties on 10.12.2010. In terms of the Memorandum of Understanding Complainant was to get the entire 2nd floor of the said G+3 storied building and half of the 3rd floor and 200 sq.ft. more or less on the ground floor car parking space.
Further, as per the Memorandum of Understanding, OP in lieu of the cost of the construction will get entire first floor and half of the third floor and remaining car parking space area. Developer OP got the plan sanctioned. Developer also paid tax and started constructing the building in terms of the agreement. Complainant did not execute the documents in respect of the allocation of OP as per the terms of the Memorandum of Understanding. Further, OP has alleged that the case is not maintainable and Complainant cannot allege deficiency in services. OP has stated that he constructed the building on his own cost and expenses and requested Complainant to accept the possession of his share and also requested to execute the documents in favour of the nominees of the developer. But, Complainant did not pay any heed to that. In stead, Complainant alleged that developer has no right to transfer the flats of his allocation also OP already invested Rs.40,00,000/- for construction of the building. But, due to the non-cooperation of Complainant he could not sale his share. So, OP has prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Against this, OP has put certain questions to the Complainant which Complainant has replied. OP has also filed evidence on affidavit stating the facts mentioned in the written version, against which Complainant has put certain questions to which OP has replied.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of this complaint, it appears that the first prayer of the Complainant is for a direction upon the OP to hand over the possession of the entire 2nd and 3rd floor of the building and 200 sq.ft. space of the ground floor of the building at Plot No.52 .
In this regard, it appears that both the parties have in their complaint and written version respectively as well as in affidavit-in-chief of the Complainant and of OP have agreed that there was a Memorandum of Understanding by which OP was required to construct the G+3 storied building and Complainant was to get 2nd floor and half of the 3rd floor and 200 sq.ft. car parking space and rest was to be of the OP. It is allegation of the Complainant that till now possession has not been given to him by OP.
OP has asserted in his written version as well as in affidavit-in-chief that the building has been constructed as per the sanctioned plan of the K.M.C. The only allegation of the OP is that Complainant has not executed the document so that OP can sell his portion to the purchaser. Further allegation of the OP is that he has invested Rs.40,00,000/-. But, he could not sale his portion flat to any person due to the interference by the Complainant. So, it appears that dispute relates to the Memorandum of Understanding. A Xerox copy of the Memorandum of Understanding is filed which reveals that the facts which are mentioned in the complaint petition and written version are there in it.
Further, in paragraph 10 of the Memorandum of Understanding, it has been mentioned that the lease holder and the developer have entered into this agreement purely on contract basis and nothing herein contained shall be deemed to construed as a partnership between the parties in any manner nor shall the parties constitute any association of persons.
OP has mentioned in his written version that Complainant failed to execute the document by which he could have sold his portion to the purchaser and so OP is compelled not to sell his portion to the purchaser.
Further, we do not find any power of attorney in favour of the developer OP by the Complainant which perhaps is creating hindrance to the developer OP in selling his allocation of flats and so the dispute has arisen and OP has not handed over the possession to the Complainant.
Further, it appears the Memorandum of Understanding was entered into between the persons that is the Complainant and the OP and as per the averment of the Memorandum of Understanding it is a contract and so in terms of the provisions of Consumer Protection Act is not applicable to the present case as there are other Forums where this has to be adjudicated.
In view of that we are of the opinion that Complainant is not entitled to the reliefs.
Since Complainant is not entitled to the relief No.1 the question of granting of compensation and litigation cost does not arise.
Hence,
ordered
CC/250/2016 is dismissed on contest.
