FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This is a case filed by the complainant U/s 12 of CP Act 1986.
The fact of the case in brief is that the complainant being co-owner of the subject property inherited the same from his father since deceased in order to develop the subject property. The complainant and his other co-sharers entered into a joint venture agreement dated 06.01.2014 to develop the subject property measuring about 3 cottahs, 8 chittaks more or less of land with a pakka structure lying and situated at Premises No. 49, Bediadanga, Masjid Bari By Lane, Mouza-Goalpara , Bediadanga, JL No. 13, RS No. 233, RS Dag No. 1578 and another plot of land measuring 2 cottahs, 11 chittaks, 34 sq. ft. more or less or RS Dag No. 1587 / 2118 or Mouza Goalpara, Bediadanga, PS-Kasba, Kolkata-700039.
It is further stated by the complainant that the subject property belonging to the complainant and his 7 other co-sharers for the purpose of construction of G+3 storied building as per sanction plan getting from KMC at the cost and expenses of the developer/ OP of this case.
It is further stated by the complainant that a General Power of Attorney for development of the of the property in question was also registered in between the parties to this case.
The original General Power of Attorney is lying in the custody of the OP.
It is the further case of the complainant that in terms and conditions of registered deed of agreement, the OP agreed to deliver peaceful possession of 50 % of completed constructed area in all respect of building as per building plan approved by KMC authority within the period of 24 months from the date of sanctioning of building plan and rest of the 50 % of constructed area was allotted to the share of the OP.
The complainant further stated that at the time of execution of agreement, the OP paid Rs. 4,00,000/- only to the complainant adjustable consideration to be adjusted with the cost of excess constructed area over 50 % allotted area of the owners allocation.
The complainant further stated that they delivered the possession of the land in question and handed over all the original title deed, papers to the OP on the date of registration of said development agreement. So, all original deeds and papers are lying in the custody of the OP which shall be handed over to the complainant after completion of construction of the subject building project.
The complainant further stated that he handed over the subject premises to the OP in consideration of getting service from him. So, the complainant is a consumer within the ambit of section 2 (b) (ii) of CP Act 1986.
It is alleged by the complainant that as per terms and conditions of the agreement and general power of attorney, he handed over the land of the premises in question structure thereon for getting service in the nature of new flats in favour of the land owner allotted 50 % share of the building on completion of construction and to deliver the possession these of but the OP did not deliver possession of owners allocation of 50 % share neither to the complainant nor to his co-sharers even after laps of more than 7 years.
It is alleged by the complainant that the OP has already completed the construction of 5 storied building containing several flats and shops room in the premises in question and transferred a major portion of the constructed area to the buyers without delivery of the possession of the flats and shop rooms allotted to 1/8th share out of 50 % share of constructed area reserved for the land owners including complainant.
The complainant further alleged that the OP adopted unfair trade practice and did not handover the approved building plan to the complainant for ascertaining actually built up plan area and floor on which it is constructed within 50 % constructed area of the owners allocation. The complainant and other co-sharer repeatedly requested the OP/developer to handover the flat of the owners allocation to the complainant and other co-sharers but the OP/developer did not address the request of the complainant which caused harassment, mental pain to the complainant which should be considered as deficiency in service and unfair trade practice of the OP. Thereafter, the complainant served legal notice dated 15.12.2020 upon the OP/developer which was duly received by him but he did not take any fruitful steps to that effect for which the OP is liable for deficiency in service and unfair trade practice.
Under such circumstances, without having any other alternative, the complainant has filed this case with a prayer to give direction upon the OP to deliver a copy of the KMC approved building plan for the premises in question for the purpose of ascertaining the actual flat area which the complainant is entitled to get 1/8 share out of 50 % of owners allocation as per terms and conditions of registered development agreement.
The complainant further prayed for giving direction upon the OP to deliver the possession of the new flat built up area measuring about 750 sq. ft. more or less in 1/8th share out of 50 % constructed area of new building of premises in question and also prayed for compensation of Rs. 1,00,000/- along with litigation cost of Rs 50,000/-.
The claim application as filed by the complainant has been contested by the OP by filing a WV denying all the material allegations leveled against him.
The OP stated in his WV that the complainant is not a consumer .
It is further stated by the OP that this forum has got no jurisdiction to try this case and the complainant has got no cause of action to file this case.
The OP further stated that admittedly one Padma Rani Naskar and six other including the complainant were the joint-owners of premises in question measuring about 03 cottah, 08 chittaks with a pakka structure standing thereon and they jointly entered into development agreement with the OP wherein the complainant was described and referred to as owner No. 3. that the development agreement is a registered agreement.
It is further alleged by the OP that the market value of the property in question assessed was at Rs. 1,37,76,389/- and the stamp duty on said document was of Rs. 5000/-.
On the basis of said market value, this forum has got no pecuniary jurisdiction to try this case. The OP further stated that due to internal dispute among the land owners, the development work was delayed and one of the owners namely Prabir Kr. Naskar was getting his share separately and substantial changes in original terms and conditions in the development agreement executed between the land owners and the OP .
OP further stated that due to his personal incapacity and recession, the OP could not be able to complete the construction work. As a result, the land owners introduced Mr. S. M. Shafi to the OP and proposed to assign the development work to him. It was implacably agreed by and between the parties to this case that the OP shall assign the devolvement work to Mr. S. M. Shafi is an incoming developer to complete the remaining portion of the construction work. Considering the proposal of the owner, the OP executed the remaining work to S. M. Shafi which was settled by executing MOU dated 08.02.2019 and after assigning the assignment to S. M. Shafi the present OP is released from any sort of liability as per terms and conditions of the development agreement and after execution of MOU, all relationship of developer/ service provider and the consumer by and between the parties to this case has been terminated and since then the complainant cannot demand any sort of service from the present OP.
It is the OPs case that the case is bad in law and is not tenable in the eye of law. It is also denied by the OP that the complainant is entitled to 1/8th share out of 50 % share of owners allocation or there is any material standard available on record to assess the value of service @ Rs. 18,00,000/- .
Hence, the petition of complaint as filed by the complaint is liable to be dismissed with exemplary cost.
In view of the above stated facts and circumstances, the petition of complaint as well as materials on record, the points of consideration will be:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case?
- Are the complainants a consumer?
- Is the case bad for non-joinder of necessary parties?
- Whether there was any deficiency in service on the part of the OPs?
- Are the complainants entitled to get relief as prayed for?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of the materials on record and also considering the position of law, it is revealed that the complainant along with other co-sharers entered into a development agreement with the OP for development and construction work of the premises in question as mentioned in the petition of complaint but even on lapse of the time bound period, the OP failed to complete the development work and to hand over the delivery of the possession of the flat of the owners allocation to the complainant as mentioned in the petition of complaint.
For a considerable period, the complainant and other co-sharers requested the OP to complete the development work and construction work of the schedule property and to handover he possession of the same to them but in vain. Ultimately, on 15.12.2020 the complainant served the legal notice as well as demand notice to the OP but the OP did not provide any service to the complainant even on receipt of the demand notice. Hence, the instant case is filed by the complainant on 20.12.2021 from which it is palpably clear that the complainant is a consumer and he has cause of action to file this case
Now let us see, whether this forum has got the pecuniary jurisdiction to try this case. The instant case has been filed by the complainant U/s 12 of the CP Act, 1986 wherein the value of the case would be considered on the basis of valuation of goods or services and the compensation, if any, claimed does not exist Rs. 20,00,000/- but in the instant case it is found from the development agreement as annexed by the complainant himself that the market value of the subject property has been certified and assessed at Rs. 1,37,76,389/- which is beyond the pecuniary jurisdiction of this forum/commission so, this forum has got no pecuniary jurisdiction to try this case.
Now let us see, whether the case is bad for defect of non-joinder of necessary parties. From the annexed document filed by complainant along with WV which is named as the MOU dated 08.02.2019, it is found that it was executed in between the complainant, his other co- sharers and the OP of the present case and one S. M. Shafi Alam who was the incoming developer in this MOU and who actually completed the development work of the premises in question but the complainant neither mentioned the same in the petition of complaint nor made S. M. Shafi Alam as party to this case but this S. M. Shafi Alam who actually completed the development work of the premises in question which is subject matter of this case is one of the necessary party to this case. This forum is of view that for proper adjudication of this case, the presence of S. M. Shafi Alam in this case is urgently required but the complainant has suppressed the material facts before this forum and did not come with clean hand to get the relief as prayed for. Considering this aspect, the forum is of view that the instant case is also bad for non-joinder of necessary parties.
From discussion made above, it has come to notice to this forum that the complainant intentionally suppressed the material facts and did not come with clean hand before this forum to get relief as prayed for and when the case is beyond the pecuniary jurisdiction of this forum, it is need less to mention here that the case is not maintainable in its present form and the forum does not feel any necessity to consider and discuss the matter whether there was any sort of deficiency in service on the part of the OPs or whether the complainant is entitled to get the relief as prayed for.
In a nut shell, this forum is of view that the complainant is failed to prove his case beyond all reasonable doubt and is not entitled to get relief as prayed for.
In view of discussion made above, it is held by this forum that this case is liable to be dismissed.
All the points of consideration are thus discussed and considered accordingly.
Hence,
Order
that the case be and the same is dismissed on contest without any cost.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
