MRIDULA ROY, J. - (1.)
(2.) THE instant appeal is directed against the judgment and order dated 14.3.2013 passed by learned District Forum, South 24 Pargnas in CC Case No. 234/2012 dismissing the same on contest without cost. Being aggrieved by the impugned order the Complainant has preferred the instant appeal on the grounds, inter alia, that the Complainant -Appellants and other co -owners had given the power of attorney to the Respondent -Developer to get approval of the plan from the KMC on their behalf, but the Respondent -developer never disclosed whether and when the building plan was sanctioned and the construction work was completed, learned District Forum considered that the Owner No. 4 (Appellant herein) instead of owner's allocation shall take an amount of Rs. 2,00,000 only by cash and the said amount would have to be paid by the Developer - Respondent to the Appellant at the time of handing over possession of the 1st floor flat to the owner No. 3 failing which, the developer shall provide one flat measuring about 300 sq.ft. super built -up area to the Appellant from the developer's allocation but in the instant case the developer did not pay the scheduled amount of Rs. 2,00,000 to the Appellant within stipulated time nor did handover possession of a flat measuring about 300 sq. ft. from developer's allocation. The case of the Complainant (Appellant herein) in brief, is that she and her three brothers being the owners of the lands measuring about 3 cottahs situated at P.S. -Kasba, Mouza - Dhakuria, J.L. No. 18, appertaining to Dag No. 626/1831, Khatian No. 769, within the Kolkata Municipal Corporation No. 94, Banerjee Para Lane, Kolkata -700 031 entered into a joint venture vide agreement dated 4.3.2009 with the O.P. to construct a building in the said premises. Subsequently, a supplementary agreement dated 27.8.2010 was also executed by and between the landowner and the developer by which the developer agreed to construct a two storied building in the said land from his own expenses and in consideration of the said land the owner No. 3 i.e. one of the brothers of the Appellant was entitled to get one flat measuring 600 sq. ft. on the first floor and the Complainant was entitled to get Rs. 2,00,000 by cash which was to be paid by the developer at the time of handing over possession of the said flat to the owner No. 3 failing which the developer was to provide one flat measuring 300 sq. ft. super built -up to the Complainant from the developer's allocation portion. The Complainant has further stated that the O.P. - developer handed over the possession of flat on the 1st floor to the owner No. 3 on 30.9.2011, but as per terms of the two agreements O.P. did not provide the sum of Rs. 2,00,000 by that date. However, the Complainant served Advocate's letters dated 22.9.2011 and 14.11.2011. The O.P. - Developer did not send reply to that but, instead, sent a bank draft of Rs. 2,00,000 along with a forwarding letter dated 25.11.2011 which the Complainant received and encashed but did not spend the amount and the same has been lying with his bank account. However, the Complainant specifically alleged that since the O.P. - Developer did not pay the amount of Rs. 2,00,000 within the stipulated time he should, as per terms of the Agreement, deliver a flat measuring about 300 sq. ft. of super built -up area from the Developer's allocation. Accordingly, the Complainant has prayed for execution and registration of a sale deed in respect of 300 sq. ft. super built -up area flat in the schedule of premises in favour of the petitioner failing which to pay the present market price of said 300 sq. ft. flat to the petitioner, to pay @ Rs. 6,000 per month from March, 2009 to the date of delivery of Khas possession of the said flat or date of payment of the said sale proceed to the petitioner, to pay @ Rs. 2,000 per month from June, 2010 till date of issue of completion certificate issue by K.M.C. after adjustment of Rs. 2,00,000 which kept with the petitioner, to pay compensation of Rs. 50,000 to the petitioner and to pay litigation cost of Rs. 10,000, etc.
(3.) IN course of hearing of the appeal learned Advocate for the Appellant has submitted that the terms of the contract are binding upon the parties and, therefore, the Respondent is bound to deliver possession of a flat of about 300 sq. ft. super built -up area since he failed to pay Rs. 2,00,000 within the stipulated time. Learned Advocate for the Respondent has submitted that the Appellant accepted the amount of Rs. 2,00,000 without raising any objection and thus, she has no case at all.;