The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the behest of a purchaser against the developer/ promoter (Opposite Party No. 1)and the Landowner (Opposite Party No. 2) on the allegation of deficiency of services, primarily on the part of developer in a dispute of housing construction.
Succinctly put, complainant’s case is that on 04.07.2008 he purchased one self-contained flat measuring about 1100 sq. ft. super built up area being flat No. 3A on the 3rd floor along with one covered car parking space on the ground floor in the building lying and situated at premises No. 55/1, Paddapukur Road, P.S.- Bhowanipore, Dist- South 24 Parganas, Kolkata- 700020 within the local limits of Ward No. 72 of the Kolkata Municipal Corporation at a total consideration of Rs. 19,80,000/-. The complainant has alleged that the OP No. 1/developer has handed over him the possession of the flat but not the car parking space and in this regard all his requests and persuasions went in vain. Hence, the complaint with prayer for several reliefs, viz.- (a) to direct the OP No. 1 to handover the covered car parking space to the complainant in terms of Deed of Conveyance dated 04.07.2008, (b) to pay litigation costs of Rs. 30,000/- etc.
The Opposite Party No. 1/developer by filing a written version has stated that after completion of construction of building upon the premises in question, they have executed and registered the deed of conveyance dated 04.07.2008 in favour of the complainant and delivered the possession of the flat and car parking space and since then the complainant has been using and enjoying the flat and car parking space without any disturbance. Therefore, the complaint should be dismissed.
On the basis of submission of the complainant, the contents of petition of complaint supported by affidavit were treated as evidence on the part of complainant. The complainant has also given reply against the questionnaire set forth by Opposite Party No. 1.
The Opposite Party No. 1/developer has filed evidence on affidavit in support of his case. However, no questionnaire has been filed by the complainant to test the veracity of statement of OP No. 1. Either of the parties has not filed any brief notes of argument in support of their respective cases.
The pleadings of the parties and the evidence on record make it abundantly clear that OP No. 2 is the owner of a piece of land measuring more or less 4 cottahs 8 chittaks along with standing structure thereon lying and situated at premises No. 55/1, Paddapukur Road, P.S.- Bhowanipore, Dist- South 24 Parganas, Kolkata- 700020 within the local limits of Ward No. 72 of the Kolkata Municipal Corporation. Admittedly, in order to raise construction of a G+4 storied building over the said property, the OP No. 2 being land owner had entered into an agreement for development with OP No. 1 on 29.04.2005.
After completion of construction, on 04.07.2008 OP No. 1being developer has sold away one self-contained flat measuring about 1100 sq. ft. being flat No. 3A on the 3rd floor along with one covered car parking space on the ground floor together with undivided proportionate share and interest in the building in favour of the complainant from developer’s allocation at a total consideration of Rs. 19,80,000/-.
It is the complainant who alleges that though the flat in question as mentioned in Schedule ‘B’ to the Deed of Conveyance was handed over in favour of him but the covered car parking spaces has not yet been handed over in favour of him. On the contrary, the OP No. 1/developer has categorically mentioned that he has handed over the flat and car parking space in favour of the complainant. In this regard, the recital of inner page 8 of Deed of Conveyance dated 04.07.2008 appears to be relevant which reproduces below:
“AND WHEREAS pursuant to the said Agreement the said Confirming Party herein duly constructed the said building at Premises No. 55/1, Paddapukur Road, Kolkata, morefully described in the First Schedule hereunder written and duly complied his part of Performances in favour of the Vendor, which the Vendor accepted and acknowledged as per terms and conditions of Agreement dated 29th day of April, 2005 and the Owner/Vendor and Confirming Party also delivered and released possession of the proportionate share of the land and common spaces and the said newly constructed flat being Flat No.3A, on the Third Floor together with the said car parking space to the Purchasers herein morefully described in the Second Schedule hereunder written.”
What is apparent that is real. Therefore, from the Deed of Conveyance itself it would reveal that on the date of execution of sale deed, OP No. 1 has also handed over the possession of the flat and car parking space as mentioned in Schedule ‘B’ to the Deed of Conveyance in favour of the complainant.
In a questionnaire put on behalf of the complainant as to whether the developer has completed the construction of building upon the said land according to the sanctioned building plan in all respect, the complainant has answered ‘yes’. In his evidence, OP No. 1 has specifically mentioned that after completion of construction of the building upon the said premises they have executed and registered the Deed of Conveyance dated 04.07.2008 in favour of the complainant and delivered possession of the flat and car parking space. The OP No. 1 has also categorically mentioned that since 04.07.2008 the complainants have been using the said flat and car parking space without any disturbance and interference from anybody else.
The said piece of evidence of OP No. 1 remains unchallenged. Therefore, when OP No. 1 has filed affidavit by way of evidence but the complainant did not file any questionnaire to cross-examine the statement of OP No. 1, in such circumstances, keeping in view the proposition of law, the allegation of the complainant shall disprove his case.
The evidence on record also speaks that over the self-same issue, the complainant earlier filed a complaint before the District Consumer Forum being CC/323/2015 and the said complaint was dismissed on 28.10.2016. The complainant along with some others have also filed one suit being TS No. 72/2015 in the court of Ld. Civil Judge (Junior Division) 4th Court at Alipore in respect of the property in question and the same is still pending for consideration. It further appears that the complainant and his wife being plaintiffs have earlier instituted one suit being TS No. 136/2015 against the developer and the landowner i.e. OPs before the Ld. 4th Civil Judge (Junior Division) at Alipore being TS No. 136/2015 with prayer for a declaration that they are the sole an
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d absolute owner of the covered car parking space measuring about 150 sq. ft. lying and situated at premises No. 55/1, Paddapukur Road, P.S.- Bhowanipore, Kolkata- 700020 and a decree for permanent injunction to restrain the OPs/defendants from creating any third party interest over the said property and the said suit is still pending for consideration. Therefore, on evaluation on materials on record and having heard the Ld. Advocate appearing for the parties I am of the view that the complaint being devoid of merit should be dismissed. As a result, the complaint is liable to be dismissed. Consequently, the complaint is dismissed on contest against OP No. 1 and ex parte against OP No. 2. However, there will be no order as to costs.