Samiksha Bhattacharya, Member
The instant case has been filed Under Section 17(1) (a) (i) of C.P.Act ,1986 by the Complainant against the Opposite Parties alleging deficiencies in service.
Facts of the Case, in brief, are that the OP No. 1 is a Company engaged in the business of real estate activities represented by its sole propritress namely Smt. Debjani Ghosh, who is the OP No.2 of the instant Case. OPs. No. 3 to 5 being the joint owners of a plot of land measuring more or less 02 (two) Cottahs 08 (eight ) Chhitacks and 24 (twentyfour) sq.ft. lying and situated in the district of 24 Parganas(South), P.S. Bansdroni, Sub-Registry Office at Alipore, Parganah - Magura, Mouza-Roynagar, J. L.No. 47, Touzi No. 6 comprised in RS Dag No. 97 under RS Khatian No. 476 and Dag No. 97 under Khatian No. 315 now within the limits of KMC Ward No. 112, being KMC Premises No. 86, Subodh Park , Kolkata €“ 700 070, entered into development agreement with the OP No. 1 represented by OP No. 2 on certain terms and conditions on 08.04.2011. Accordingly, OP Nos. 3 to 6 being the joint owners of the schedule property have executed and registered a General power of attorney in favour of OP No. 1 and OP No. 2 on 08.04.2011 registered in the office of DSR 1, Alipore, recorded in Book No. IV, CD Volume No. 1, pages from 4039 to 4049 being No. 00343 for the year 2011, empowering the OP No. 1 to enter into an agreement for sale with the intending purchaser/purchasers in respect of the schedule €œA€ property and to take full consideration money against valid money receipt. OP No. 1 & 2 got a sanctioned building plan from KMC for construction of a G+3 storied building at the said premises. During construction of the said proposed building for want of fund, the OP No. 1 declared to sell the entire 3rd floor /top floor flat and car parking space on the ground floor being the part of developer€™s allocation. One Smt. Priti Ghatani entered into an Agreement for Sale on 05.11.2011 with the developers to purchase the entire 3rd/top floor measuring about 1200 sq.ft. super built-up area along with the one car parking space measuring about 120 sq.ft. on the ground floor for total consideration of Rs. 22.00 lakhs (Rupees twenty-two lakhs) on payment of Rs.4.00 lakhs (Rupees four lakhs). Due to paucity of fund and personal problem, Smt. Priti Ghatani declared to assign the said flat lying and situated on the 3rd floor measuring more or less 1200 sq.ft. super built-up area along with the said car parking space for Rs. 10.00 lakhs (Rupees ten lakhs). The Complainant proposed to the developers and said Smt. Priti Ghatani to purchase the said flat and car parking space on payment of Rs. 25,10,000.00 (Rupees twentyfive lakhs ten thousand) to the OPs 1 & 2 and also agreed to pay Rs. 10,000,00 (Rupees ten lakhs) to said Smt. Priti Ghatani towards consideration for the flat and car parking space, in question. Considering the proposal of the Complainant, the developer and said Smt. Priti Ghatani agreed and accepted the proposal of the Complainant and agreed to sell the said flat and car parking space to the Complainant and accordingly the developer, said Priti Ghatani and the Complainant had entered into an Agreement for Sale on 22.11.2013. As per agreement dated 22.11.2013 the Complainant, being the purchaser of the said flat and car parking space, had paid Rs. 25,10,000.00 (Rupees twenty-five lakhs ten thousand) to the developer on different dates by way of several cheques and also paid Rs. 10.00 lakhs ( Rupees ten lakhs) to the assigner Smt. Priti Ghatani. The said Smt. Priti Ghatani handed over the possession of the flat and car parking space to the developers on receiving Rs. 10.00 lakhs (Rupees ten lakhs) from the Complainant and informed the Complainant and the developer that she is ready to appear before the concerned Registration Office to sign as second confirming party. It was mentioned in the page No. 7 of the agreement that the proposed G+3 storied building including the top floor flat and car parking space of the ground floor would be completed within 18 months from the date of Agreement for Sale and the possession would be delivered to the Complainant. After the expiry of the period of 18 months, Complainant approached the developer for completion of the said flat and car parking space as well as said building in all respect and to register the flat and car parking space. But till the date of filing of the complaint case Ops have not completed the water connection, drainage connection, electrical wiring, doors and windows, metal fittings on stairs, etc. of the proposed building. The main allegation is that the developers have been obstructing the complainant to enter the said premises by way of illegal means. The complainant had already sent Advocate€™s notice dated, 23.08.2018 to all the Ops.
Finding no other alternative, the complainant had sent another Advocate€™s letter on 18.11.2018. The complainant has also stated that she requested a date within seven days for registration of the said flat and car parking space at her cost on payment of the balance consideration of Rs. 8,50,000.00 (Rupees eight lakhs fifty thousand). But the letter was returned with postal endorsement €˜unclaimed /door closed/intimation served€™. Hence,the complainant filed the instant petition of complaint praying for a direction upon the Ops to complete the pending works of the said top floor and car parking space on the ground floor of the said proposed building alongwith registration of the said flat and car parking space and to deliver the possession alongwith compensation of Rs. 3.00 lakhs ( Rupees three lakhs) and litigation cost of Rs. 2.00 lakhs ( Rupees two lakhs).
Though the notice were served upon the OPs. none appeared before this Commission to contest the case. Therefore, the case was heard ex parte.
At the time of final hearing, Ld. Advocate for the Complainant has submitted that during pendency of the complaint case the execution and registration of the Deed of Conveyance has been completed on 15.10.2020, only the possession is due. Therefore, he has prayed for a direction upon the OPs. to handover the possession of the flat to the Complainant along with compensation.
On scrutiny of the records we have observed that the first Development Agreement was executed on 08.04.2011 between the OPs No. 3 to 6 i.e. the land owners of the property with the Rajashree Construction i.e. the OPs No. 1 and its proprietress, Smt. Debjani Ghosh who is the OP No. 2 in the instant case. Thereafter on 05.11.2011 an Agreement for Sale was executed between the OPs No. 1 and 2 i.e. Developer, OPs No. 3 to 6 i.e. landlords with one Smt. Priti Ghatani, the intending Purchaser. Smt. Priti Ghatani paid Rs.4 lakhs out of total consideration of Rs. 22 lakhs. Ld. Advocate for the Complainant has argued that due to paucity of fund said Smt. Priti Ghatani wanted to sell out the flat to the present Complainant in lieu of Rs.10 lakhs. The Complaint was agreed to pay the amount to Smt. Priti Ghatani to purchase the flat and garage in question for a total consideration of Rs. 35,10,000.. Accordingly, an Agreement for Sale was executed on 22.11.2013 between the landlords and the complainant / purchaser with the Developer as the Confirming Party and Smt. Priti Ghatani/ Assignor as Second Confirming Party.The complainant agreed to pay Rs.25,10,000 to the developers and Rs. 10,000,00 to said Smt. Priti Ghatani. On 26.09.2014 the OPs No. 3 to 6 cancelled the power of attorney given to the OPs No. 1 and 2. The development agreement signed by and between the OPs No. 1, 2 and OPs. No. 3 to 6 was cancelled by revoking the power of attorney given to the Developer on 08.04.2011. Thereafter, a Development Agreement was executed on 27.11.2014 between landlords (O.Ps No. 3 to 6) and Makali Enterprise, a proprietorship firm, represented by its sole proprietor, Sri Sanjoy Sardar referred to as the Developer. In this agreement dated 27.11.2014 it was mentioned that M/s. Rajashree Construction(OPs. No.1&2) expressed its inability to finish and / or complete the project and accordingly the party of the One Part approached the Party of the Other Part which is a renowned developer in the locality to complete and finish the remaining work of the proposed building. Accordingly, an agreement for cancellation of development agreement and cancellation of power attorney dated 26.09.2014 has been executed by and between O.Ps No. 3 to 6 (landlords) and O.Ps No. 1, 2 (erstwhile developer).
But surprisingly, the Complainant has made the erstwhile developer and its proprietress the parties as the OPs No.1 and 2 but does not make the present developer any party. The landlords i.e. O.Ps 3 to 6 already cancelled the power of attorney with O.Ps. No.1 and 2. In the petition of complaint, the Complainant has stated that the assignor, Smt. Preeti Ghatani handed over the possession of the said flat and car parking space to the developer by taking Rs. 10 lac from the Complaint and informed the Complainant and the developer verbally that she was ready to appear before the concerned registration office to sign as Second Confirming Party as and when be directed.
The Complainant has filed the photocopies of Deed of Conveyance dated 15.10.2020 but in the Deed of Conveyance, Smt. Priti Ghatani has not signed. The Deed of Conveyance was signed by the the OPs No. 1 and 2, the erstwhile developer and the OPs No.3 to 6 i.e. landlords and the Complainant. There is no signature of the present developer. But the Complainant herself annexed the Cancellation of Agreement between O.Ps No. 3 to 6 (the landlords) and O.Ps No. 1 and 2 ( the erstwhile developer). Therefore, after the Cancellation of Agreement with O.Ps No. 1 & 2 we cannot give any direction upon O.Ps No. 1 & 2, since it was mentioned in the Cancellation of Agreement that the landowners and developer both declared that they have no allegation or claim in connection with the Agreement dated 08.04.2011 and Supplementary Agreement dated 04.06.2013
As per the foregoing discussion we think that the present developer i.e. Makali Enterprise and Smt. Priti Ghatani, Purchaser as per first Agreement for Sale must be the parties of the instant case to adjudicate the matter properly. The Complainant has claimed that as per Agreement for Sale dated 22.11.2013 the Complainant has paid Rs. 25,10,000/- to the OPs No. 1 and 2 and Rs.10 lac to Smt. Priti Ghatani by cheque. The Complainant has annexed the photocopy of bank pass book wherefrom we have noticed that the Complainant has not filed the front page of bank pass book so that we can know the name of the bank account holder. Moreover, we have observed that Rs. 10 lac was credited to Smt. Priti Ghatani and Rs. 2 lac was credited to Makali Enterprise, Rs. 13 lac was credited to Rajashree Construction. The amount does not tally with the amount as claimed by the Complainant. In the Agreement dated 22.11.2013 we find that Rs. 8 lakh was paid to O.Ps.No. 1 & 2 and Rs. 10 lakh was paid to Smt. Priti Ghatani. No other money receipt has been filed in support of her p
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ayment that only Rs. 8,50,000 is due as stated in the petitiuon of complaint. In the Agreement for Sale dated 22.11.2013 it was mentioned as €˜MEMO OF CONSIDERATION€™ that €œReceived on and from the within named Purchaser the sum of Rs.8,00,000/- out of Rs.25,10,000/- only and the rest consideration of Rs.10,00,000/- to be paid to the Assignor out of the total consideration of Rs.35,10,000/- being the part consideration money in the following manner :- €œBy cheque vide No.509649 dated 22.11.2013, drawn on UBI€€. Branch€(Branch name not mentioned) signed by O.P No. 2, Debjani Ghosh and €œReceived on and from the within named Purchaser the sum of Rs.10,00,000/- as full and final settlement money against assignment of the €œB€ Schedule flat and Car Parking Space in favour of the Purchaser in the following manner :- By Cheque No. 509644, dated 18.11.2013, drawn on UBI€€ branch€(Branch name not mentioned). In view of the above we think that the Complainant has not come with clean hands. Therefore, Complainant has failed to substantiate her case and as such she is not entitled to any relief. Hence, ORDERED That the C.C. Case No. 3 of 2019 is dismissed ex parte.