This is a complaint made by Smt. Mamata Malakar, W/o Samir Malakar against Tamal Krishna Kundu, S/o Lt. Sanjani Mohan Kundu, residing at L/1/22-A, Vidyasagar Colony, P.O. Naktala, P.S. Netaji Nagar, Kolkata – 700 047, praying for a direction upon the OP to complete the sale by executing and registering Deed of Conveyance in respect of the property mentioned in Schedule ‘B’ and ‘C ‘of the Agreement for Sale and for an order directing the OP to pay a compensation of Rs. 50,000/- and litigation cost Rs. 30,000/-.
Facts, in brief, are that OP is the absolute owner of the ‘A‘ schedule property and raised a structure in the said property. Owing to urgent need of money, OP offered to sale the entire first floor of the building in an incomplete state, to which the Complainant agreed and accordingly, an Agreement for Sale was executed by and between the Complainant and the OP on 21-08-2005. In terms of that, OP was required to complete the sale of Schedule B property by executing and registering Deed of Conveyance by 01-03-2010. As per this agreement, Complainant had to incur substantial amount to make the same habitable.
Further, Complainant has asserted that in terms of Clause 7 of the Agreement for Sale, in the event of failure of the OP to construct on the available land on the South-Eastern portion of the premises by his own arrangement and responsibility and out of own resources of the OP, within the period of one year from the date thereof, Complainant could acquire the right to raise construction up to roof of the 3rd floor at her cost and responsibility and use and enjoy the entire first floor of the same. It is stated that as the OP failed to discharge his part of responsibility, so, exercising her right, the Complainant completed the construction out of her own resources totaling more than Rs. 6,00,000/- and got possession of entire first floor flat. It is further stated that OP failed to raise pillars and roof up to the second floor in terms of the Agreement for Sale. Complainant stated to have made several requests to the OP for fulfilling his part of the construction, but he failed to do so. Complainant issued notice upon the OP and thereafter, filed this case.
OP filed written version against the complaint and denied all the material allegations. Further, OP has asserted that the Agreement for Sale has no legal validity as it was not registered. It was done on a Rs. 10/- non-judicial stamp paper. According to the OP, it was nothing but a Leave and License Agreement. The property was registered in favour of the OP by the Government of West Bengal. An amount of Rs. 5,15,000/- has been retained by the owner as one time license fee as well as security deposit and the said Leave and License Agreement was to continue up to 28-11-2010. The money, which the Complainant gave, was spent towards treatment of Rupan Kundu, son of the OP. It is admitted that the Complainant is living on the first floor. It is alleged that taking undue advantage of the financial constrain of the OP, the Complainant tried to grab the property by compelling him to sign the so called Agreement for Sale. Further, it is stated that husband and son of the Complainant are in the habit of grabbing land and that, there was no Agreement for Sale between the parties. So, the OP prayed for dismissal of this case.
Decision with reasons
Complainant filed Affidavit-in-Chief, wherein she has reiterated the facts mentioned in the complaint. Against this, questionnaire is filed from the side of the OP, to which the Complainant submitted Affidavit-in-Reply.
Main point for determination is whether the Complainant is entitled to the reliefs as prayed for in the complaint petition.
First relief sought for by the Complainant is for a direction upon the OP to complete the sale by executing and registering a Deed of Conveyance in respect of the Schedule B and C property. Schedule B is the property situated on the first floor of the building which is admittedly in the possession of the Complainant and Schedule C is the property mentioned in Clause No. 7 of the agreement.
It is stated in Clause 7 of the Agreement for Sale that if the First party decides to raise construction on the available land on the South-Eastern portion of the premises by his own arrangement and responsibility and out of his own resources, within a period of one year from the date of execution of the Agreement for Sale, he will raise pillars and roofs thereon up to the roof of the third floor and handover the first floor thereof making arrangement for free access to the Second party free of cost. Further, it is stated therein that in that event, the Second party shall complete the same by raising walls and fixing doors and windows at Second party’s cost for his/her own use and occupation and for the use and occupation of the members of his/her family. Now, in the said agreement, First party was the OP and Second party was the Complainant.
Now, the question arises, whether an Agreement for Sale can be made in respect of a property that is not specific and not ready. In our view, Agreement for Sale cannot be made in respect of a property which is likely to occur in terms of the Transfer of Property Act. So, Clause 7 of the Agreement for Sale appears to be written baselessly and such type of agreement cannot take place. We see eye to eye with the OP in this regard as asserted in his WV and Affidavit-in-Chief.
From the evidence of the OP, we find that he has asserted that the Agreement for Sale is nothing but an Agreement for Leave and License Agreement and in that event, the prayer of the Complainant for a direction upon the OP to make registration of the property cannot be allowed.
Further, it is mentioned in the Agreement for Sale that the Second party shall have full right to enjoy the said property as mentioned in Schedule B till 28-02-2010 as a licensee and get adjusted the interest on the advance towards license fee, payable by him. This averment makes it clear that this document is not an Agreement for Sale per se. Also, it is mentioned that the Second party shall enjoy the said property mentioned in the Schedule B on the basis of license agreement executed on 21-08-2005 till the expiry of the period mentioned therein.
Accordingly, the agreement in question makes it clear that this is not an Agreement for Sale in the true sense of the word and on the basis of such agreement, we cannot give any direction to the OP to oblige the Complainant in the manner sought for by her.
As such, we are of view that the Complainant does not deserve any relief.
Hence,
O R D E R E D
that CC/61/2015 be and the same stands dismissed on contest against the OP, but without any cost.
