Date of filing : 30.04.2019

Judgment : Dt.21.1.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Sumanta Das alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely Sunita Chowdhury.

            Case of the Complainant, in short, is that OP was the owner in respect of the property being J. L. No.40, R.S.No.32, R.S.Khatian No.343, L.R.Khatian No.398, R.S. and L.R.Dag No.131 under Maheshtala P.S. OP decided to develop the said land by way of construction of a multi storied building with several self contained residential flats . During the work of the construction of the building, Complainant approached the OP to purchase a self contained flat measuring 500 sq.ft. and thus an agreement for sale was entered into between the parties dt.18.12.2016, whereby the Complainant agreed to purchase the flat described in the schedule of the complaint at a consideration of Rs.7,00,000/-. Complainant paid a sum of Rs.1,08,000/- by cheque and further paid a sum of Rs.42,000/- by cheque dt.22.7.2016. The delivery of possession of the flat was to be delivered within six months from the date of execution of the agreement. But, neither the flat has been handed over to the Complainant nor the deed has been executed in his favour. It was agreed between the parties that the balance consideration amount of Rs.5,50,000/- was to be paid by the Complainant to the OP as and when asked for. As the Complainant has not been delivered the possession and the deed has not been executed, the present complaint has been filed for directing the OP to execute and register the deed of conveyance in respect of the flat on receiving balance consideration of Rs.5,50,000/-, to deliver the possession, to pay Rs.50,000/- as compensation and litigation cost of Rs.10,000/-.

            Complainant has filed copy of the deeds relating to devolution of the property upon the OP, a copy of the agreement for sale entered into between the parties dt.18.12.2016 and also an agreement has been filed dt.18.8.2015 entered into between the Complainant with one A.G.Global Developers.

            On perusal of the record, it appears that notice was sent to the OP. But, no step was taken by the OP. Neither any written version was filed and so vide order dt.23.7.2019, the case was directed to be proceeded ex-parte.

            During the course of the trial, by filing a petition, Complainant prayed for treating the complaint petition as evidence and thus ultimately argument has been advanced by the Ld. Advocate appearing for the Complainant.

            So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

Decision with reasons

It is claimed by the Complainant that he agreed to purchase the schedule flat at a consideration of Rs.7,00,000/- from the OP and towards the part payment he paid Rs.1,08,000/- and Rs.42,000/- totaling Rs.1,50,000/-. In order to support his claim, Complainant has filed the agreement dt.18.12.2016, whereby it appears that OP agreed to sale the flat as described in the schedule B of the agreement to the Complainant at a consideration of Rs.7,00,000/-. However, it may be pertinent to point out that an agreement for sale dt.18.8.2015 has been filed which appears to have been entered into between the Complainant and one A.G.Global Developers being represented by its proprietor Abtabuddin Pailan. On a careful scrutiny of the said agreement, it appears that the said A.G.Global Developers being the agent of the owner agreed to sale a land measuring 4 cottahs from Part of Dag No.1212, under Khatian No.1222 Plot No.A-14 & 15, at a consideration of Rs.3,60,000/- and the said developer had taken an advance of Rs.1,08,000/- from the purchaser therein namely the present Complainant. The price of the said land was settled at Rs.90,000/- per cottah. The payment detail in the said agreement further reveals the payment was made of Rs.1,08,000/- to the said developer on 18.8.2015. Complainant has filed a copy of the receipt in order to show the payment of Rs.1,08,000/- on 18.8.2015 which indicates the payment was made to the A. G. Global Developers towards the purchase of the plot as agreed in the agreement dt.18.8.2015. So, if the said money receipt is taken into consideration then it is evident that the sum of Rs.1,08,000/- was paid towards the purchase of the plot of land and not towards the purchase of the flat as claimed by the Complainant. Said receipt has been issued by the  A.G. Global Developers towards payment for plot No.A-14 & 15. There is no evidence before this Forum as to how the A. G. Global Developers is related to the present OP who is the owner of the property agreed to be sold by an agreement dt.18.12.2016. The Complainant has claimed in this case that he made payment of Rs.1,50,000/- towards the purchase of the flat, but the document or the money receipt filed by him speaks that Rs.1,08,000/- was paid for the plot. So, his claim that he made the part payment of Rs.1,50,000./- for the flat cannot be accepted. In such a situation, claim of the Complainant that in spite of making part payment, the possession of the flat has not been handed over and thus he is entitled to the possession and execution of the deed cannot be allowed.

So, the present complaint is liable to be dismissed, as the fault is on the part of the Complainant because he has not made any payment for the flat, barring Rs.42,000/-, towards consideration of Rs.7,00,000/-.

            Hence

                        ordered

            CC/243/2019 is dismissed ex-parte.