Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 209 / 2009

1)           Sri Pashupati Mukherjee,

152, Peary Mohan Roy Road,

Kolkata-700027                    and 6 others              ---------- Complainant

1)           Sri Ashim Banerjee, M/s A.B. Construction,

P-87, Lake Road, P.S. Lake, Kolkata-29.                ---------- Opposite Party

Present :        Sri S. K. Majumdar, President.

                        Smt. Jhumki Saha, Member.

                        Sri T.K. Bhattacharya, Member

This is to consider an application filed u/s 12 of the C.P. Act (as amended up to date) by seven complainants against the o.p. alleging deficiency of service.

          The complainants are the joint owners of land and building at 152, Peary Mohan Roy Road, P.S. Chetla, Kolkata-27. The o.p. Ashim Banerjee is the developer of the said property and proprietor of M/s. A.B. Construction having its office P-87, Lake Road, P.S. Lake, Kolkata-29. The complainants entered into a development agreement on 21.4.06 with the o.p. which was notarized on 26.4.06. And it was agreed by and between the parties that he o.p. after demolishing the existing old building will construct a multi storied building on the said plot of land, vide annex-A. By virtue of the said development agreement, the complainants executed and registered a general power of attorney on 28.4.06 in favour of the o.p. Thereafter, the o.p. submitted building plan for construction of G+4 storied building on the said plot of land which was sanctioned. And the complainants prayed for a leave to submit that sanctioned plan at the time of hearing of this case. The complainants also stated that the o.p. constructed G+4 storied building containing several self contained flats and car parking spaces at the said premises and handed over the vacant possession of the flats to the complainants from owners’ allocation on different dates, vide annex-2 of BNA filed by complainant nos.5 and 6. And the o.p. sold out all the remaining flats along with car parking spaces to other purchases from the developer’s allocation although the o.p. had no authority or right to sell the flats as constituted attorney of the complainants.

          The complainants further alleged that the o.p. had not completed the construction work as per specification provided in the development agreement and sanctioned plan. Here, we find neither the copy of the General power of attorney nor the copy of sanctioned plan has been annexed. It has also been alleged by the complainants that even the o.p. tried to sell the common areas namely generator room, pump room, security guard room to the third party which compelled the complainants to revoke the general power of attorney on 5.5.09, subsequently that was intimated to the o.p. by an advocate’s letter dt.8.5.09. Thereafter, the complainants provided one detailed list of works not yet done by the o.p. for which both the parties took a resolution on 21.12.08. And in that resolution, the o.p. promised o complete the works as detailed in that resolution by end of January, 2009, vide annex-B of complaint/petition. The complainants also alleged in the affidavit of evidence that the o.p. in gross violation of the sanctioned plan had constructed a flat on the open terrace of the said building and sold the same to the purchaser. Moreover, the complainants made a number of allegations against o.p. in their petition of complaint vide paragraph nos.12-16 as well as paragraph nos.14-16 of their affidavit of evidence. The complainants repeatedly requested the o.p. to finish the incomplete works but all efforts went in vain. Lastly, the complainants sent lawyer’s notice dt.9.4.09 on 11.4.09 which was received by the o.p. on 13.4.09, vide annex-C, D & E collectively. But the o.p. did not reply to that lawyer’s notice. And finding no other way, the complainants filed this instant petition on 5.6.09. Notice was served upon the o.p. and ld. Lawyer for the complainants filed affidavit of service on 27.7.09. But none appeared and no w/v was filed by the o.p. And the case was heard ex parte on 3.3.10.

          We have perused the complaint/petition along with all annexures, affidavit of examination-in-chief filed by the complainants. Having the common interest, all the complainants (7 nos.) filed this single petition against the o.p. By virtue of the development agreement, the complainants became the consumers of the o.p. The complainants have not filed the copy of general power of attorney wherefrom it would have been possible to ascertain as to how far the o.p. is entitled to sell the flats or car parking space to the purchasers from the developer’s allocation. The complainants have not also filed any copy of sanctioned plan issued by KMC as per statement made in para 4 of complaint/petition as well as para 6 of their affidavit in chief. Accordingly, it is also not possible for us to ascertain whether there was any open terrace in the sanctioned plan as stated by them in para 12 of affidavit as well as para 10 of their complaint/petition. However, we find the document showing resolution taken by both the parties on 21.12.08 regarding the completion of certain works by the o.p. as well as supply of certain documents as detailed in annex-B of complaint/petition. But till date the o.p. did not comply with that. Moreover, we find one document annexed with BNA filed by the complainant wherefrom it appears that CESC Ltd. raised and issued one MA bill no.02/12503/08/0/1 in the name of Arun Kr. Mukherjee, one of the complainants appeared in this instant petition asking for the payment of total amount of Rs.77,377/- for providing electric supply to that premises at 152, Peary Mohan Roy Road, Kolkata-27. But from the resolution dt.21.12.08, we find it was the duty of the o.p. to do the needful regarding the electricity connection. But nothing was done by the o.p. And it was paid by the complainant, Arun Kr. Mukherjee on 4.8.09, which can only be termed as the deficiency of service caused by o.p. Accordingly, in terms of development agreement dt.21.4.06 and resolution dt.21.12.08, the o.p. is found to deficient in service. The case succeeds on merit.

          The o.p. is directed to comply with the resolution dt.21.12.08 (except the electricity connection that has been already made in the name of Arun Kr. Mukherjee) within forty five days from the date of communication of this order. the o.p. is also directed to comply with the resolution dt.21.12.08 (including the electricity connection to all the complainants except Arun Kr. Mukherjee, if not already made by the CESC Ltd. within forty five days from the date of communication of this order. The o.p. is further directed to refund Rs.77,377/- (Rupees seventy seven thousand three hundred seventy seven) only along with an interest @ 10% p.a. till the actual payment to Arun Kr. Mukherjee within forty five days. The complainants do get an award of Rs.1,00,000/- (Rupees one lakh) only as compensation and Rs.10,000/- (Rupees ten thousand) only as litigation cost. The o.p. is directed to comply with the order and pay the decretal amount within forty five days from the date of communication of this order, in default, it will carry an interest @ 10% p.a. till full compliance.

          Supply certified copy of this order to the parties on payment of prescribed fees.