West Bengal

South 24 Parganas

CC/130/2015

Umesh Kumar Giri, S/O Debendra Kumar Giri. - Complainant(s)

Versus

1. Ajay Gupta, S/O Shiv Kumar Gupta. - Opp.Party(s)

Pabitra Nath.

22 Sep 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _130_ OF ___2015_____

 

DATE OF FILING : 18.3.2015     DATE OF PASSING JUDGEMENT:  22.9.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :   Umesh Kumar Giri, s/o Debendra Kumar Giri of 212T, Picnic Garden Road,

                                               P.S. Kasba, Kolkata – 39.

 

-VERSUS  -

 

O.P/O.Ps                            :    1. Ajay Gupta,s/o Shiv Kumar Gupta of 212B, Picnic Garden Road, Kol-39

                                                2. Shambhu Shaw,s/o Rajendra Shaw of 3A, C.N. Roy Road, Kol-39.

                                                3.  Bunty Singh, s/o Kishore Singh of 43/11, C.N. Roy Road, Kol-39.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

The instant complaint under section 12 of the Consumer Protection Act, 1986 has been filed by the complainant against the O.P with allegation of deficiency in service.

In a nut-shell, the case of the complainant is that a Development agreement has been entered into between the complainant and the O.Ps on 9.11.2012 regarding the development of landed property situated at Dag no.1610, Khatian no.617, J.L. 13 Mouza Kasba, Premises no.68B, Dr. G.S. Bose Road, P.S. Kasba, measuring 2 katha 5 chittak 37 sq.ft . The complainant and one Hari Narayan Poddar were the joint owners of the said property and they jointly signed the said agreement dated 9.11.2012. As per this Agreement the owner will obtain 50% of total structure and 50% constructed area of each and every floor. Complainant noticed that construction of the building partly completed and measurement of the constructed area of the first floor of the said building is 1200 sq.ft and O.P already agreed to sell out 800 sq.ft . It was also noticed that thickness of exterior brick walls of the flat  was made 5”  instead of 8 “. . Complainant on several occasions met the O.Ps and requested to perform their duties as per agreement dated 9.11.2012 and not to transfer more than 50% of the constructed area of first floor of the said building but the O.Ps did not pay any heed to the request of the complainant. Complainant sent lawyer’s letter dated 5.2.2015 and the matter was also informed to the concerned P.S. but all in vein. Hence, this case.

Inspite of valid service of notices upon the O.Ps, since none of the O.Ps has cared to appear before this Forum and to contradict allegations leveled against them, the case proceeded exparte against them.

After scrutinizing vividly every nook and corner of the instant case and hearing minutely the case of the complainant from her Ld. Advocate, following points are in lime light for consideration:

 

 

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

All the points are taken together for discussion as they are interlinked.

Before going into the merits of the case it is needed to be mentioned here that inspite of valid service of notices upon the O.Ps none of the O.Ps has cared to appear before this Forum and to contradict the allegations alleged in the instant case. Therefore, all the documents brought before this Forum by the complainant remain unchallenged piece of testimony and we find no reason to disbelieve the contention of the complainant ,when the complaint petition is filed on affidavit.

            From the record it appears that the complainant being a land owner entered into a Development Agreement on 9.11.2012 with the O.Ps for construction of a building in the suit premises within the land of the complainant As per that development agreement the O.Ps are legally duty bound to hand over 50% of the total structure of the building in question ( Page 3 and 4 of the Development Agreement). But as per the complainant developer has already agreed to sell out 800 sq.ft to a third party, whereas the measurement of the first floor of the said building i.e. the constructed area of the first floor is 1200 sq.ft. Moreover, as per Development Agreement page 10 ,schedule B)  “All exterior brick work of flats shall be of 8” thickness with bricks approved quality in C.M (1:5). All partition walls shall be of 3”/5” thickness with bricks in C.M(1:4) and balcony railing shall be of 3’ -3” high with 3’ brick wall and b)  All partition brick wall will be 3” & 5”” .

But it is the contention of the complainant that thickness of exterior brick wall of the said flat is 5” at present instead of 8” . Therefore, we have no hesitation to hold that this inaction and/or wrongful action of the O.Ps/developer amounts to deficiency in service and violation of contract i.e.  violation from the Development Agreement. Therefore, it is strongly opined by this Forum that O.Ps are jointly and/or severally liable for deficiency in service and complainant is eligible to get relief as prayed for partly.

It is needed to be mentioned here that due to abovementioned deficiency in service of the O.Ps, complainant has to suffer not only tremendous mentyal agony and harassment but financial loss also.  Considering the above facts and circumstances of the case it is strongly opined by this Forum that complainant is eligible to be aptly compensated by the O.Ps/Developers .

 

 

 

 

Hence,

                                                Ordered

That the complaint case is allowed exparte against the O.Ps with cost.

The O.Ps are directed to give legal and physical possession of 50% of total structure as per schedule mentioned property as owner’s allocation as per development agreement dated 9.11.2012 and also to construct the exterior wall of the building with thickness of 8” as per Development Agreement dated 9.11.2012.

The O.Ps are also directed jointly and/or severally to compensate the complainant for his suffering mental agony, harassment and financial loss  to the tune of Rs.1 lacs and to pay litigation cost of Rs.3000/- within one month from this date.

 

Let a plain copy of this judgement be supplied to the parties free of cost.

 

Member                                                           Member                                               President

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       Hence,

                                                Ordered

That the complaint case is allowed exparte against the O.Ps with cost.

The O.Ps are directed to give legal and physical possession of 50% of total structure as per schedule mentioned property as owner’s allocation as per development agreement dated 9.11.2012 and also to construct the exterior wall of the building with thickness of 8” as per Development Agreement dated 9.11.2012.

The O.Ps are also directed jointly and/or severally to compensate the complainant for his suffering mental agony, harassment and financial loss  to the tune of Rs.1 lacs and to pay litigation cost of Rs.3000/- within one month from this date.

 

Let a plain copy of this judgement be supplied to the parties free of cost.

 

Member                                                           Member                                               President