This is a complaint made by one Sri Samya Priya Banerjee, son of Late Swapan Kumar Banerjee, residing at Flat No.3A, 57/1, Kalikapur Borakhola Road, Lahari, EM Bypass, P.S.- Purba Jadavpur, Kolkata-700 099, represented by his lawful constituted attorney Sri Shibobrota Acharya, son of Late Bidhu Bhusan Acharya residing at Flat No.2A, 57/1, Kalikapur Borakhola Road, Lahari, EM Bypass, P.S.-Purba Jadvpur, Kolkata-700 099, against (1) Sri Swapan Kumar Bhattaharya, son of Late Badal Chandra Bhattacharya, residing at 52, Sahidnagar, P.O.-Naktala, P.S.-Jadavpur, Kolkata-700 047, OP No.1, (2) Sri Gautam Dhar Chaudhuri, son of Sri Sisir Dhar Chaudhuri, residing at E/46, Baghajatin, P.O.-Baghajatin, P.S.-Patuli, Kolkata-700 086, OP No.2, (3) Sri Joyprakash Mondal, OP No.3, and (4) Sri Suprakash Mondal, OP No.4, both are sons of Dr. Birendra Nath Mondal and residing at 57/1, Barakhola, P.O.-Kalikapur, P.S.-Purba Jadavpur, Kolkata-700 078, praying for direction upon the OPs to execute registered sale deed and to pay Rs.3,00,000/- as compensation for harassment both mental and physical.
In course of proceeding of the instant complaint the OP No.1 had been died and subsequently substituted by the legal heirs namely Kalyani Bhattacharjee, wife of Late Swapan Kumar Bhattacharya and Sri Aniket Bhattacharjee, son of Late Swapan Kumar Bhattacharya, accordingly, their names are inserted as OP No.1A & 1B in the cause title of petition of complaint.
Facts in brief are that Complainant having a desire of suitable residential accommodation was in search of a flat. OP No.1 & 2 are the partners of the developer firm namely M/S Subhabas Enterprise and the lawful constituted attorney of the land owner, OP No.3 & 4.
Complainant being approached by OP No.1 & 2 having consultation with them accepted their offer and proposed to avail housing construction service to be provided by the said OPs in respect of a flat to be constructed on the 3rd floor, in Block ‘A’ flat No.3A of the building, measuring super built up area 850 sq.ft. more or less consisting of two bed rooms, one dining-cum-living room, one toilet, one kitchen and one W.C. one Verandah together with an open car parking space measuring about 140 sq.ft. more or less at the KMC premises No.57/1, Kalikapur Borakhola Road, Lahari, EM Bypass, Kolkata-700 094.
Developer agreed to sale the flat for a value of Rs.11,00,000/-. As per terms and condition of agreement for sale Complainant paid 90% of the total consideration out of Rs.11,00,000/- and since 2.10.2008 the Complainant have been enjoying possession of the flat.
Complainant requested the OP to register the sale deed in his favour. But, despite receiving 90% of the total consideration money OP No.1 & 2 did not do the same in favour of the Complainant and also did not complete the work of the building. The common areas are blocked by OP No.1 & 2 for his commercial purposes, the plan for drainage and sewerage is not delivered to the KMC as per the record by OP No.1 & 2. Car parking spaces are not defined specifically and also sold out to 11 persons, whereas in reality there is no space.
For the sale deed, Complainant requested the OP. But, OP did not make registered deed. After requests, Complainant sent lawyer’s notice on 28.1.2015, but of no use. So, Complainant filed this complaint.
OP No.3 & 4 filed written version and denied all the allegations of the complaint. OP No.3 & 4 submitted that agreement for sale dated 28.6.2007 was executed between the Complainant and OP No.1 & 2 and with the developer and they are not bound by it.
Further, they have alleged that the agreement for sale was not executed according to the sanctioned plan of the KMC. They have also alleged that OP No.1 & 2 have not completed the entire work of the building according to the specification and further they have not completed the boundary wall. Further, they have alleged that OP No.1 & 2 developer have not worked in accordance with the terms of the development agreement. There are various works in respect of the said property and so they have prayed for passing necessary order.
OP No.2 has filed written version separately and denied the allegations of the complaint. OP No.2 has stated that in terms of the agreement dated 29.2.2008 the developer completed the subject property but the Complainant did not pay full consideration of Rs.11,00,000/-. The developer did some extra work for which he has not been paid. Developer is entitled to get the rest of the money. Further this OP stated that this written version be treated as counter claim and there is no deficiency on the part of the OP in making construction.
OP No.1 has filed separate written version wherein he has denied the allegations of the complainant. He has also stated that Complainant has not made full payment and he did some extra work for which he has not been paid. In such circumstances, this OP has also prayed for dismissal of the complainant.
Written version has also been filed by OP No.1A & B after amendment of the complaint. These two OPs have also denied the allegations of the Complainant and they have submitted that Complainant did not pay the balance money and there is no latches on their part. So, they have prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief. All the OPs filed questionnaire against the affidavit-in-chief of the Complainant. Complainant has also replied against the questionnaire of OP No.3 & 4 and also against the other OPs. OPs have also filed affidavit-in-chief against which Complainant has filed questionnaire to which OPs have replied.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for. Complainant has filed written argument wherein he has stated the facts which he has mentioned in the complaint petition. Sanctioned plan has also been submitted for adjudication of this case.
On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for registration of the sale deed in favour of the Complainant and also for compensation of Rs.3,00,000/-.
Further, on perusal of the copy of agreement for sale, it appears that the agreement was entered on 29.2.2008. There is no dispute that Complainant did not pay 90% of the amount of the consideration money. It is also not disputed that possession was not handed over to the Complainant. Complainant has alleged that he received the possession at a very early date just after about a year of the agreement for sale which is clear from the letter dated 28.1.2015 which Complainant wrote to the OP.
On behalf of the OPs, we do not find any document to establish that the possession was not handed over to the Complainant.
Further, it appears that OPs have disputed that balance consideration money is still due and since Complainant did not pay the amount the registration could not be made.
In such circumstances, it will be proper to direct Complainant to pay balance consideration amount to the OPs, after which the registration will be made.
Accordingly, we are of the view that Complainant be directed to pay the rest consideration money after which the OP shall register.
So far as the grant of compensation and litigation cost are concerned, it appears that the fault is with both the parties and so in such circumstances the question of granting compensation or litigation cost does not arise.
Hence,
ordered
RBT/CC/170/2016 is allowed in part in contest. OPs are directed to make conveyance deed within six months of this order after receiving the balance amount from the Complainant.
