Order-14.

Date-29/01/2018.

       Shri Anupam Bhattacharyya, President.

The instant complaint has been filed by the Complainant u/s 12 of the CP Act praying for direction upon the OPs to deliver possession of the flat or to pay the market value of the said flat along with the interest  at the rate of 18 percent and Rs.1,00,000/- for compensation.

The Complainant’s case, in brief, is that Complainant is a co-sharer of the land in question, the OP/developer approached the Complainant and other co-sharer for development of the said property complying with all the legal formalities. Then, the development agreement was notarized on 16.03.2015 thereby Complainant was allotted one self contained flat measuring 600 Sq. ft. super built up area approx. The OP constructed building without sanctioned plan. Then the Kolkata Municipal Corporation and the Complainant filed a Title Suit No.437 of 2015 before the Ld. 1^st Civil Judge (Jr. Divn.) at Alipore against the OP and prayed for injunction which was rejected and the same was rejected up to the Hon’ble High Court and ultimately got injunction. The Ld. Trial Court and the A.D.J 16^th Court, Alipore restraining the OP from transferring the said flat to any third party but the OP after development of the flat already handed over some portion to the third party instead of handing over the same to the owner of the said property. Complainant repeatedly requested the OP to handover the possession of her allocated portion but to no good. On 23.05.2017 the Complainant visited the OPs office for the possession of the flat, the OP clearly denied and demanded Rs.5,00,00/-. Then the Complainant has filed the instant complaint.

The Written Version filed by the OP in brief, is that Complainant is creating disturbances by filing title suit before the Civil Court and the OP filed a revision application before the Hon’ble High Court challenging the order and the Ld. District Judge, Alipur  (16 ADJ) in favour of the Complainant where in the Complainant is a party. The activities of the Complainant caused substantial loss of Rs.5,00,000/- to the OPs. The Complainant manipulated the agreement for development, this Complainant should not be treated as a consumer as per CP Act and prays for dismissal of the case. Hence, the instant instant written version.

Considering the pleading of both sides the following points have been raised.

Point for Decision

1. Whether the case is maintainable in its present form and law?
2. Whether there is any cause of action to file the case?
3. Whether the case is barred by limitation?
4. Whether the complainant is entitled to get the relief as prayed for?
5. What other relief/reliefs the complainant is entitled to get?

Decision with Reasons

Points No.1 to 5  .   All the points are taken up together for the sake of convenience.   The instant complainant is for delivery of possession of the flat or in the alternative to pay market value of the flat along with interest and possession.

            The Complainant’s main case is that the Complainant is co-sharer of the land and they entered with OP for development agreement or construction of 4-storied building observing all legal formalities including the sanctioned plan. He started to construct without sanctioned plan but this Complainant’s injunction registering the OP developer from alienating the flat to 3^rd party.  Complainant repeatedly requested the OP2 for handing over the possession, but no result and ultimately the OP demanded Rs.5 lacs legally.  Hence the instant complaint case.

            On the other hand, the OPs case is that the Complainant creating disturbances by different court cases and he has filed revision petition before the Hon’ble High Court praying interim order, Injunction  order against him where the Complainant’s is a party and for such activities of the Complainant the OP has suffered a lot of Rs.5 lacs.

            To prove the case, both the parties have filed evidence on affidavits along with questionnaires and replies vice-versa along with the relevant documents in support of their respective cases.

            In this case the OPs agent in his written version has raised a question that for the activities of the Complainant as to filing different cases, the OP has suffered a los of Rs.5 lacs but there is no basis as well. No cogent evidence has been adduced by the OP to that effect. The Complainant’s case is that the OP started construction without sanctioned plan where the development agreement is for construction observing all the legal formalities including obtaining  the sanctioned plan and for that he preferred title suit to that effect and ultimately got  ad interim  injunction restraining OP from alienating his flat in question to any third party and from the OPs averment in the w.v. it appears that they preferred revision before the Hon’ble High Court, challenging the said ad interim injunction order.

On the basis of above discussion, as a whole we find that all the points have been disposed of in favour of the complainant in part and as such the Complainant is entitled to get possession of the flat within one month and litigation cost of Rs.5,000/-.

The loss as claimed being not proved by cogent evidence we are of view that the complainant is not entitled to get any compensation.

Hence,

             Ordered

That the instant case no.259 of 2017 be and the same is allowed on contest against the OP.

            OP is directed to deliver possession of the flat along with litigation cost of Rs.5,000/- to the complainant. , in default, the OPs 1 and 2 is to pay fine  at the rate ofRs.100/- per day delay and the amount so accumulated should be deposited to this Forum.

            Failure to comply with the order will entitle the complainant to put the order into execution under appropriate provision of the C.P. Act.