West Bengal

South 24 Parganas

CC/68/2015

1. Anjan Kumar Banerjee. S/O Late Ashani Bikash Banerjee. - Complainant(s)

Versus

1. M/S. Roy Enterprise, A proprietorship Firm. - Opp.Party(s)

Saikat Dutta Mazumder.

29 May 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

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

 

         C.C. CASE NO. _68_ OF ___2015_____

 

DATE OF FILING : 10.2.2015     DATE OF PASSING JUDGEMENT:  29.5.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu

                                                                             

COMPLAINANT             :   1. Anjan Kumar Banerjee,s/o late Ashani Bikash Banerjee                                    of 110/5/J/1, Sarat Ghosh Garden Road, Ground Floor, Kamala Park, P.S. Kasba, Kolkata – 31.

2.     Sekhar Banerjee, s/o late Ashani Bimash Banerjee of 2./16, Thakurpukur Road, C/O Manmatha Nath Pramanick, Ranganathpur, P.O Joka, P.S. Thakurpukur, Kolkata – 104.

 

-VERSUS  -

 

O.P/O.Ps                            :   1. M/s Roy Enterprise of 110/1A, Sarat Ghosh Garden Road,Dhakuria, Kol-31

2.  Rajit Roy,s/o Bishandeo Roy of 110/1A, Sarat Ghosh Garden Road, Dhakuria, P.S. Kasba, Kolkata -31

And also at 37C/2, Swinhoe Lane, C/o Mahabir Roy, P.S. Kasba, Kol-42.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Mrs. Sharmi Basu, Member

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

In a nut-shell the case of the complainants is that being owner of a piece of land along with an old residential building, the complainants decided to develop a new construction of three storied building and with that intention on 14.12.2011 they entered into a development agreement with the O.P/developer namely M/s Roy Enterprise (O.P-1) represented by Shri Rajit Roy (O.P-2). As per the Development Agreement dated 14.12.2011 the O.Ps agreed and undertook to provide 50% of the constructed area of the second (top) floor, back(east ) side, 50% constructed area of the first floor, front (west) side of the proposed building consisting of 1(one) self contained flat in the said floors together with undivided proportionate share in the land underneath the building and in the common portion and common facilities, easements, amenities , comprised in the said building together with the common rights of the top floor roof of the new building to be constructed in the said premises  and a sum of Rs.1,00,000/- only more fully and particularly mentioned in the schedule of the agreement within 15 months from the date of delivery of the possession of the property being Municipal Premises no.l51, Nazir Bagan, former P.S. Kasba, at present P.S. Garfa, Kolkata – 78.

            But even after repeated requests of the complainants till the date of hearing of the instant case O.Ps /developer  neither completed the construction work nor gave the possession of the owner’s allocation to the complainants. Then on 10.05.2014 they lodged a general diary against the O.Ps (Vide Garfa P.S. G.D. Entry no. 768 dated 10.5.2014).

            Thereafter, the complainants ran from pillar to post for redressal of the aforesaid dispute. But all in vain. Hence, the complainants had no other alternative but to file the instant case before this Forum for redressal of the disputes with prayer as mentioned in the complaint petition.

Inspite of service of summon the O.Ps did not appear ,for which the case proceeded exparte.

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

Points for Decision

1. Whether the complainant is a Consumer or not under the purview of the C.P Act, 1986.
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

Point no.1:- From the record it appears that the complainants were owners of a piece of land along with a residential building and with intention to develop a new construction ,entered into a development agreement with the O.P/developer  and handed over their old building to the developer for re-construction of the aforesaid new building. Therefore, it is considered by this Forum that that the above mentioned land along with the old residential building is the “Consideration” for the allocation of flat in question. Therefore, we are of the opinion that the complainants are ‘consumers’ under section 2(1)(d)(ii) of the C.P Act and the O.Ps are service providers under section 2(1)(o) of the C.P Act, 1986. Thus the point no.1 is discussed in favour of the complainants.

Points nos. 2 and 3:- Point nos. 2 and 3 are discussed altogether for convenience. It is crystal clear that as per development agreement dated 14.12.2011 the O.Ps/developer are duty bound to hand over the possession of the owners’ allocation to the complainant within the legitimate period as per development agreement . But as per record it is palpable that even after all efforts of the complainants, the O.Ps neither have completed the construction of the suit premises nor have handed over the possession of their allocation . Therefore, we have no hesitation to hold that the O.Ps being the developer have committed deficiency in rendering services towards the complainants/consumers and therefore, O.Ps should hand over the possession of the owners’ allocation as per development agreement after completion of the construction work immediately .

            To decide whether the complainants are eligible to get compensation from the O.Ps or not, following discussions are advanced.

            On good faith as per aforesaid development agreement, the complainants handed over their old residential building to the developer with the hope that after the reasonable period the developer would hand over their allocation as per development agreement. But though the development agreement was signed on 14.12.2011 but till the date of haring of the argument of this instant case, O.Ps neither have completed the construction work nor have handed over the possession of the complainants’ allocation. It is beyond doubt that for the inaction, deficiency in service and negligence of the O.Ps complainants have to suffer immense financial loss, mental agony and harassment etc. and the O.Ps are liable to compensate the complainants.

            Thus the case of the complainants is proved .

            Hence,

                                                                        Ordered

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

The O.Ps are jointly and/or severally directed to hand over vacant possession of the two flats ( owner’s allocation) at the suit premises as per development agreement to the complainants within 30 days from the date of this order.

The O.Ps are also directed jointly and/or severally to pay compensation to the tune of Rs.1,50,000/-  and litigation cost of Rs.5000/- to the complainant within 30 days from this date, failing which O.Ps shall be liable to pay Rs.20/- per day after completion of stipulated period as penalty from the date of this order till the date of full compliance.

 Let a plain copy of this order be served upon the parties free of cost.

 

 

                                                            Member                                               President

Dictated and corrected by me

 

 

                        Member

 

 

 

 

 

 

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

 

Ordered

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

The O.Ps are jointly and/or severally directed to hand over vacant possession of the two flats ( owner’s allocation) at the suit premises as per development agreement to the complainants within 30 days from the date of this order.

The O.Ps are also directed jointly and/or severally to pay compensation to the tune of Rs.1,50,000/-  and litigation cost of Rs.5000/- to the complainant within 30 days from this date, failing which O.Ps shall be liable to pay Rs.20/- per day after completion of stipulated period as penalty from the date of this order till the date of full compliance.

 Let a plain copy of this order be served upon the parties free of cost.

 

 

                                                            Member                                               President