DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 496/2014
Date of Filing: Date of Admission Date of Disposal:
03.09.14 09.09.2014 12.05.2015
PETITIONER = Vs. = O.Ps.
Sri Amitava Banerjee, 1. Sri Satya Dulal Dasgupta,
S/o. Late Debdas Banerjee, S/o. Late Krishnalal Dasgupta
23, Harey Krishna Seth Lane, 23, Harey Krishna Sett Lane,
P.S. Sinthee, P.S. Sinthee,
Kolkata- 700050. Kolkata- 700050.
2. Sri Sibasish Das,
S/o. Sri Sibasish Das,
S/o. Sri Sanjib Chandra Das,
28/1E, Hare Krishna Sett Lane,
Kolkata- 700050.
3. Sri Gautam Das,
S/o. Sri Nityananda Das,
Kedarnath Das Lane,
Kolkata- 700030.
4. Sri Sankar Sahoo,
S/o. Aswani Sahoo,
8B, Kedarnath Das Lane,
Kolkata- 700030.
O.P. Nos. 2,3 & 4’s business
Place and office at-
M/s. Adyama Construction,
72D, South Sinthee Road,
Kolkata- 700050.
J U D G E M E N T
The fact of the case, in short, is that the O.P. No.1 was the absolute owner of a plot of land measuring about 2 Cottah 15 Chittack 11 Sq.ft more or less together with a two storied old building situated at premises No. 23, Harey Krishna Sett Lane, P.S. Sinthee, Ward No.2, Kolkata – 700050 in the district of North 24 Pgs.
Dictated and corrected Contd. …. 2/-
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The complainant stated that the complainant was and / or is a tenant since a long time in respect of the entire ground floor of the said old building measuring about 1800 Sq.ft and the complaint was paying the monthly rent regularly.
The complainant further stated that the landlord entered into a Development Agreement in respect of the said premises on 15.04.10 with the O.P. Nos. 2,3 & 4 for development of the said property after demolishing the old building thereon. The owner also executed a registered General Power of Attorney on 16.04.2010 in favour of the aforesaid developers i.e. the O.P. Nos. 2, 3 & 4 and the said development agreement and the power of attorney are still operative and enforceable.
The complainant also stated that at the time of said agreement there was a long discussion between the complainant and all the O.Ps and it was decided in the said discussion that the complainant / tenant shall vacate the said premises in favour of the said O.Ps during construction of the said proposed building and the complainant shall issue ‘No Objection Certificate’ as and when required for sanction of the building plan at the said premises and the complainant will not also raise any objection at the time of construction of the building and in lieu of such ‘No Objection’, the O.Ps jointly agreed to allot a complete flat in the ground floor of the said building measuring around 500 Sq.ft carpet area free of any cost including the registration cost for the said flat and the complainant and the O.Ps entered into an agreement to that effect on 22.12.2010.
The complainant further stated that the developer above named have completed the building and delivered the possession of the said flat to the complainant on 20.06.13 but on repeated requests the O.Ps are failed and neglected to execute and register the deed of conveyance in favour of the complainant since the possession has been delivered.
The complainant also stated that having no other alternative the complainant served a notice on 28.02.14 on all the O.Ps through his Ld. Advocate Mr. Debashish Ghosh by registered post with A/D and O.Ps received the said notice on 05.04.14, wherein the complainant once again requested the O.Ps to execute the Deed of Conveyance but even then the O.Ps did not pay any heed to the said requests of the complainant. Hence the complaint.
The O.P. No.1 have contested the case by way of filing written version.
Dictated and corrected Contd. …. 3/-
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The O.P. Nos. 2,3,& 4 submitted written version and admitted the complaint case.
The O.P. stated that the father of the complainant was a tenant in one room in the ground floor of the old building and on his death, the complainant’s mother, Smt. Uma Banerjee was recognized as Tenant in the said room at a monthly rental of Rs. 250/- payable according to English Calender month.
The O.P further stated that the same mother of the complainant is still alive. She at one time preferred an application before the Rent Controller against this O.P and his co-sharer.
The O.P also stated that he is not aware of any agreement by and in between the complainant and the developers. The name of this O.P fraudulently mentioned in the so called agreement but in fact this O.P is/ was not aware of any such agreement. The suit flat is in the owner’s allocated flat as per the agreement by and in between the O.P and the developers.
The O.P further stated that the complainant was never attorned as Tenant by this O. P. No.1. The complainant is living with his mother in the schedule flat.
The O.P. also stated that the complainant was never a tenant under this O.P. No.1. The mother of the complainant was a tenant in a portion of the said building. After completion of the building as per the Development Agreement dated 22.12.10, the mother of the complainant has been provided with the schedule flat as a tenant but she failed and neglected to pay rent and refused to pay the monthly rent and she is a defaulter. The O.P has initiated T.s. No. 89/14 in the 3rd Court of Ld. Civil Judge (Jr. Division) at Sealdah against the mother of the complainant for eviction, which is pending before the said Ld. Court.
The O.P further stated that the complainant or his mother never occupied 1800 Sq. ft area in the Ground floor of the O.P demolished building. There is no mutuality of Contract by and in between the complainant and the O.P. The agreement as refused is not binding on this O.P.
The O.P also stated that the claim of the complainant is barred under Section 14(2) of the WBPT Act, 1997. Hence the O.P prayed for dismissal of the case.
Dictated and corrected Contd. …. 4/-
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Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
Both the complainant and O.Ps filed the affidavit-in-chief.
We have perused the copy of the agreement executed between the O.P. No.1 , M/s. Adyama Construction represented by O.P. Nos. 2,3 & 4 and the complainant.
In Clause 18 of the agreement it is written “As soon as the proposed building is completed the developers shall give separate written notice to the tenant requesting him to take physical possession of the said flat and after 30 days from the date of receipt of such notice and at all times thereafter the tenant shall exclusively be responsible for payment of all Corporation rates and taxes and other public outgoing and impositions whatsoever in respect of the said flat”.
From the copy of the agreement, it appears that O.P. No.1 signed as owner in the said agreement. Admittedly, the complainant was a tenant. It is not disputed that O.P. No.1 entered into a development agreement in respect of the premises on 15.04.2010 of the O.P. Nos. 2,3 & 4. For development of the said disputed property by demolishing the old building thereon, annexure ‘C’ filed by the complainant is the copy of the agreement for sale. Annexure ‘D’ is the copy of the original possession letter/ declaration filed by the complainant. It appears that the O.P. No.1 signed the said possession letter. So, now it cannot be said that O.P. No.1 did not sign any document and there was no agreement between the complainant and the O.P. No.1- Satya Dulal Dasgupta who signed the possession letter as witness. When the agreement was executed between the complainant and O.Ps then O.Ps have legal obligation to execute and register the deed of conveyance jointly in favour of the complainant. Whether the complainant’s mother was a tenant in respect of the disputed property and is not the subject matter to be decided in this Forum.
We are convinced that there was an agreement between the complainant and the O.Ps regarding the purchase of 500 Sq.ft carpet area in the ground floor in premises No. 23, Harey Krishna Sett Lane, P.S. Sinthee, Ward No.2, Kolkata – 700050 in the district of North 24 Pgs and he already got delivery of possession of the said flat from the O.Ps and hence the O.Ps are liable to execute and register the deed of conveyance in favour of the complainant.
Dictated and corrected Contd. …. 5/-
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Hence
Ordered,
that the complaint be and the same is allowed on contest against the O.Ps.
The O.Ps are directed to execute and register the deed of conveyance in respect of the flat mentioned in the schedule of the complaint in favour of the complainant within one month from the date of this order, failing which the complainant is at liberty to register the said flat through this Forum.
The O.Ps are also directed to hand over the completion certificate to the complainant within one month from the date of this order.
O.Ps are further directed to pay Rs 10, 000/-as compensation and Rs.3,000/- as litigation cost to the complainants within one month from the date of this order, failing which O.Ps shall have to pay sum of Rs 100/- per days from the date of this order till it realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
