Briefly stated the Complaint Case is that O.P NO. 2 was seized and possessed of and/or otherwise well sufficiently and absolutely entitled to all the piece and parcel of bastu land measuring about 1 cottah 14 chitaks 31 Square feet. Be the same a little more or less, comprised in lying and situated in Mouza Sinthee, J.L No. 22, Touzi no. 1298/2833, RS Katian no. 2A comprised in RS daag no. 629/1508 also comprised in South Dumdum Municipality holding no. 17, Boroda Kanto Road, P.S- dumdum P.O- Purba Sinthee, North-24-pgs, Kol-700030. Morefully, described in schedule ‘A’ of the petition of complaint.
O.P No. 2 entered into a development agreement with O.P No. 1 intending to develop schedule ‘A’ of the land by constructing a multi-storied building thereon and said Development Agreement was duly registered. That apart O.P No. 2 executed a Power of Attorney in favour of O.P No. 1/ developer for the purpose of raising construction on the land in question.
Complainants also states that her husband, since deceased, during his life time was a monthly premises tenant under the previous land lady namely Anjali Kundu, for the last 30 years at a portion of the old construction in schedule ‘A’ mentioned premises. And her husband died on 24.12.2014 leaving his wife, the Complainants herein as his legal heiress who became premises tenant, occupier or other status whatsoever. At the time of Development Agreement Complainants came to know that O.P No. 2 is the land lady of the schedule ‘A’ property under the Provisions of W.B.P.T. Act, 1997.
Before commencement of construction work both the O.Ps assured Complainants that they would sale, convey and transfer a self-contained flat at a token price of Rs. 101/- and to that effect Complainants has to vacate the occupied portion of her tenancy to facilitate the construction work and the said self-contained flat has been mentioned as schedule ‘B’ in the petition of complaint.
Complainants allege, that untimely developer/O.P. No.1 completed the construction work of the multi-storied building on schedule ‘A’ land.
The Complainants also states that as per Agreement for Sale the O.P herein agreed to sale, transfer and convey a self-contained flat with a covered area of 300 Square feet being flat no. A of the ground floor of the said multi-storied building expecting staircase and service area consisting of one bedroom, one dining room, one kitchen, one toilet and one balcony together with undivided proportionate share of land relating to said multi-storied building. Thereafter, O.P No. 1/ developer after completion of construction got completion certificate from South Dumdum Municipality on 20.07.2018. Thereafter, O.P No. 1/ developer delivered possession of the flat in question to the Complainants and since then Complainants is residing there, but O.P No. 1/ developer did not give any possession letter to the Complainants in respect of the flat in question.
Complainants further states that O.Ps for the reasons best known to them avoiding execution and registration of Deed of Conveyance in respect of said flat although a registered Agreement for Sale was executed between the so called land lady, the developer in one side and the Complainants in other side and said Agreement for Sale was executed on 07.07.2015 and the O.Ps agreed to sale and transfer and convey the said flat in question to the use of Complainants at a nominal consideration amount of Rs. 101/-. The Complainants paid the said amount of Rs. 101/- to the said developer and he issued memo of consideration thereto.
Ultimately, Complainants wrote letter dated 09.01.2019 to the developer and at the address to the partnership firm of the developer whereby Complainants requested developer to take necessary and consequential steps to complete registration and to issue possession letter to the Complainants in respect of said flat. Complainants further states that the developers by letter dated 22.01.2019 for the best reasons known to them denying their liability and intimated to the Complainants that the said flat was a part of owner’s allocation in the Development Agreement. It is also stated in that letter that the said Agreement for Sale was illegal and was prepared by the Complainants.
Now, Complainants states that if the developers were aware of the fact that they did not have authority to sale and transfer of the said flat on behalf of the land lady why they have executed and registered the same of behalf of the land lady in respect of flat in question. Complainants also apprehends that there is unholy understating between the developers and the so called land lady.
Complainants also states that it is the duty of the O.Ps to register the said flat in question in favour of the Complainants. And Complainants also states that even it is presumed that this developers did not have authority to sale the flat in question then also developer is bound to sale transfer and convey a similar flat with similar facilities to the Complainants at their own cost and expenses out of the developers allocation and the developers cannot be allowed to take advantage at their own wrong.
Complainants states that in the above backdrop Complainants under compelling circumstances has instituted this case praying for following reliefs:-
- A direction be issued upon O.Ps to issue possession letter in favour of the Complainants in respect of the flat in question.
- A direction be issued upon the O.Ps to register the proposed Deed of Conveyance in favour of Complainants in order to sale, transfer and convey the said flat in question, alternatively any flat with similar facilities and amenities on the said premises in favour of the Complainants at the same consideration amount.
- A direction be issued upon the O.Ps to pay litigation cost to the tune of Rs. 20,000/- to the Complainants.
- A direction be issued to the O.Ps to pay damages to the tune of Rs. 1,00,000/- to the Complainants for mental agony and inconvenience suffered by Complainants for deficiency in service and for unlawful trade practice adopted by the O.Ps.
- Such other order or orders as may think fit and proper for the ends of Justice and equity.
Point for decision
Is the Complainants entitled to get relief/s as prayed for?
Decisions with reasons
To proof her case Complainants has tender her written examination in chief supported by affidavit and she also field photocopies of all relevant documents in support of her case.
We have gone through the said evidence of the Complainants and the documents filed by her.
Be it mentioned that Complainants has filed BNA and it is also pertinent to note that O.P No. 2 also filed BNA.
It is to be pointed out that at the time of ex parte hearing Ld. Counsel appearing for the Complainants argued and Ld. Counsel appearing for the O.P No. 2 also argued in respect of hearing ex parte argument relating to this case.
Ld. Counsel appearing for the Complainants submits that from the very inception of after receiving of notice the O.Ps purposely have tried in so many ways to disturb the Complainants so that smooth advancement of this case may be hampered. He also argued that Complainants in support of her case has elaborately adduced evidence by submitting affidavit in chief and photocopies of documents filed on behalf of the Complainants which will speak a volume in support of the Complainants’s case. It is also submitted by Ld. Counsel of the Complainants that O.P 2 without contesting the case at the eleventh hour of ex parte hearing of argument is trying to resist so that prayers of the Complainants may be frustrated. Further he argued that in all fairness it can safely be said that Complainants has succeeded in proving her case.
Per contra, Ld. Counsel appearing for the O.P No. 2 highlighted that the land lady executed an Agreement for Sale with the Complainants and registered it as a confirming party.
Another point is raised on behalf of the O.P No. 2 that Complainants claim herself as a legal wife of the concerned deceased person which requires certain legal documentation and the relation between previous land lady, Smt. Anjali Kundu and present land lady Smt. Jayanti Pal is debatable and has to be gone through by proper investigation.
He also argued that doctrine of inadequacy of consideration cannot be construed as giving unfair advantage to the buyer over the seller.
It is also argued on behalf of O.P No. 2 that the agreement holder (Complainants) after taking possession in pursuance of the agreement and holding possession /premises held entitled to protection under Section 53A of T.P Act.
It is also argued that Complainants enjoys possession of the said flat in question by giving inadequate consideration to the O.P No.1(a) and O.P No.1(b) herein on good faith signed agreement for sale on behalf of the land lady as a constituted attorney and also for themselves as a confirming party.
It is also argued on behalf of the O.P No.2 that the instant case filed by the Complainants is barred by the law of the limitation under the Limitation Act.
It is also argued on behalf of the O.P No. 2 that Hon’ble Supreme Court observed that the payment of price is essestial part of sale. If a Sale Deed in respect of an immovable property is executed without payment of price and if it soes not provide for the payment of price at a further date, it is not a sale at all in the eyes of Law.
Regard being had upon the submissions of the Ld. Counsel of the rival parties and going into the materials on record carefully it may be pointed out that it is specifically argued on behalf of the O.P No. 2 that Complainants herein enjoys possession in the said flat in question by giving inadequate consideration to O.P No.1(a) and O.P No.1(b) and O.P No.1(a) and O.P No.1(b) herein on good faith signed Agreement for Sale on behalf of the land lady as a constituted attorney and also for themselves as a confirming parties. So, it can easily be inferred that O.P No.1(a) and O.P No.1(b) are with their full knowledge made an Agreement for Sale with the Complainants and that Agreement for Sale has also been registered. Photocopy of which Complainants has submitted in support of her case. Obviously, at this stage, O.Ps cannot shift from their original point which they did/acted consciously and with full knowledge. Mere allegation is not a proof. The allegation must be proved with cogent and convincing evidence. Herein we find that none of the O.Ps has come forward to contest the case. Whereas the unchallenged testimony on behalf of the Complainants including the photocopies of documents forthcoming before this Commission coupled with other materials on record speak a volume in support of the Complainants’s case. Thus, this Commission cannot appreciate the argument advanced on behalf of the Ld. Counsel appearing for the O.P No. 2 at the time of ex part hearing of the argument. On the other hand we find force and spirit in the argument advanced the Ld. Counsel appearing for the Complainants.
In the above backdrop it can safely be concluded that Complainants had succeeded in proving her case thus she is entitled to get relief as prayed for.
Hence, it is,
ORDERED
that the instant case be and the same is allowed on ex parte against the O.P No. 1(a) and 1(b) and O.P No. 2 with cost.
O.Ps are hereby directed to issue possession letter in respect of the flat in question to the Complainants within 45 days from the date of this order.
O.Ps are directed to execute and register the proposed Deed of Conveyance relating to the flat in question in favour of the Complainants and /or to sale, transfer and convey any alternative flat with similar facilities and amenities on the premises in question in favour of the Complainants at the same consideration amount and to pay the cost of stamp duty and registration fee within 45 days from the date of this order.
O.Ps are directed to pay Rs. 20,000/- to the Complainants jointly and severally for mental agony and inconvenience suffered by the Complainants and for deficiency in service and unlawful trade practice adopted by the O.Ps within 45 days from the date of this order.
O.Ps are directed to pay the Complainants litigation cost of Rs. 10,000/- to the Complainants within 45 day from the date of this order.
Let copy of this order be given to the parties free of cost.
Dictated and corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
