FINAL ORDER/JUDGMENT   

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

In a capsulated form, complainants’ case are that they are the co-owners of a piece and parcel of land measuring an area of 1 kottahs 02 chittaks  05 sq. ft. little more or less together with a two storied structure standing thereon at KMC Premises No. 9/3/1A, Hatibagan, Kolkata-700014. Complainants entered into a Development Agreement dated 19.11.2012 with the OPs  2 to 3 being the partners of OP-1 for development and construction of a building on the aforesaid land. The OPs 1 to 3 also executed a Supplementary Agreement dated 19.11.2012 with the complainants on the terms and conditions fully mentioned in the said agreement. OPs 1 to 3 also entered into a separate Development Agreement with the Proforma OPs 4 to 6 for development and construction of building on their land. OPs 1 to 3 amalgamated both the plots of land of the complainants and Proforma OPs and also obtained a building sanctioned plan from the Kolkata Municipal Corporation. The complainants and the Proforma OPs entered into a registered Development Agreement dated 29.09.2012 with the OPs 2 and 3 being the partners of OP-1 for construction of a G+4 storied building on the amalgamated plot of land and on the self same day, they also executed a power of attorney in favour of the OPs 2 to 3 being the partners of OP-1. As per terms of registered  Development Agreement, the complainants are jointly get the second floor and third floor (front portion ) of the proposed building according to their shares. Apart from that they shall have to get 50 % proportionate covered area of the ground floor according to their share on the front portion.  The OPs 1 to 3 by a letter dated 12.08.2016 confirmed to all the co shares of the amalgamated plot of land that ground floor (front portion) of the proposed G+4 storied building will be divided into 50:50 ratio after deduction of common area and the rare portion of Dutta’s and the Proforma OPs 4 and 5 will be get into 50:50 ratio after deduction of common area. The OPs 1 to 3 violated the terms and conditions of the Development Agreement. The complainants have stated that subsequently, the developers constructed 5^th floor on the proposed building. The developers promised to the complainants’ that they will provide 120 sq. ft. area on the fifth floor of the proposed building to them. The developers delivered a portion of second floor and some portions on the fifth floor of the building to the complainants but failed and neglected to handover any portion of the ground floor without any cogent reason though they are bound to entitle the proportionate share on the ground floor of the multi storied building as per Development Agreement. The developers violated the terms and conditions of the Development Agreement executed between the parties. Even the developers failed to handover completion certificate and revised sanction building plan to the complainants. The complainants further stated that in terms of the Development Agreement dated  29.09.2014 the OPs 1 to 3 being the developers are liable to handover physical possession of the building to the landlords within 18 months from the date of sanction of building plan. Building Department of KMC sanctioned the building plan on 07.11.2013. The developers delivered physical possession of the respective share of the complainants except ground floor after expiry of 50 months for which the complainant are entitled to get Rs. 3,333/- per month.  There is deficiency in service and unfair trade practice on the part of the OPs 1 to 3. Under compelling circumstances, the complainants have to come up in this commission to lodge complaint to get relief as prayed for.

OP-6 contested the case  by filing WV wherein he has stated that the OPs 1 to 3/developers have failed and neglected to handover vacant possession of his allocation despite repeated request and also failed to perform their obligation in terms of the development agreement dated 29.09.2014. As a consequence, he compelled to file a case against the developers being CC -260/2019 before the Hon’ble SCDRC and such case is still pending for disposal. The Developers have no right to transfer any part or portion of the multi storied building situated at  KMC Premises No.  9/3/1B, Hatibagan (North), Kolkata-700004 to any third party without delivery the owners’ allocation in terms of Development Agreement. The answering OP claiming his allocation on the multi storied building.

OP-3 filed her WV beyond the statutory period as prescribed in the CP Act for which her WV was not accepted vide order dated  25.02.2022.

            During pendency of the case, OP-2 Sandip Basu died and the case against him is dropped.

            Proforma OP-4 did not contest the case by filing WV despite service of notice of the complaint. During pendency of the instant case proforma OP Sambhu Nath Dutta died and the case against him is also dropped.

Complainant No.3 Sri Priyadarshan Pal lead their evidence in support of their case. OP-6 did not put his evidence despite filing WV.

Upon hearing of argument and on perusal of the record there is no dispute that complainants were the co-owners of a piece and parcel of land measuring an area of 01 cottahs 02 chittaks 05 sq. ft. more or less with a structure standing thereon being KMC Premises No. 9/3/1A, Hatibagan Road, Kolkata-700014 and they entered into a Development Agreement dated 19.11.2012 with the OPs 2 and 3 being the partners of OP-1 Bhumi Developers & Interiors for construction of a building on the land fully mentioned in the 1^st schedule of the said agreement. It is pertinent to mention here that OPs 2 and 3 being the partners of OP-1 also executed a separate agreement with the OPs 4, 5 and 6 for Development and construction of a building on their plot of land. Plots of complainant and OPs  4 to 6 were amalgamated and the OPs 1 to 3  also obtained a building sanctioned plan from the Deputy Engineer, Borough No. VII, KMC. On perusal of the record, we find that the OPs 2 and 3 being the partners of OP-1 entered into a registered Development Agreement dated  29.12.2014 with the complainants and Proforma OPs 4 to 6 for construction of a G+4 storied building after demolishing the existing structures standing thereon. In that agreement, it has been mentioned that the Developer shall complete the multi storied within 18 months from the date of sanctioned building plan by the KMC. There is mention in the Development Agreement dated  29.12.2014 that the complainants shall jointly get the 2^nd and 3^rd floor on the front portion of the proposed building which also include the portion of their tenants. Apart that the complainants shall also get 50 % proportionate covered area of the ground floor according to their share. Complainants and Proforma OPs have also executed a registered Power of Attorney in favour of OPs 2 and 3 being the partners of OP-1. OP-1 issued allocation letter dated 12.08.2016 to the complainants in respect of their allocation on the 2^nd and 3^rd floor of the building. Complainants are claiming proportionate share of possession on the ground floor (front portion) of the building and handover possession on the 3^rd floor of the building as it appears from the legal notice dated 01.01.2019. As per legal notice dated 07.06.2018 complainants are entitled to get proportionate share of possession to the extent of 110.24 sq. ft. of area on the 5^th floor of the building. Developers failed to WV within the statutory period as provided under the CP Act. Thus, the WV filed by OP-3 on 22.01.2020 was not accepted V.O dated 25.02.2022. There is no contrary evidence to disbelieve evidence of the complainant No.3. The prayer of the OP-6 for  analogues hearing of the instant case with CC  No. 260/2019 pending before the Hon’ble SCDRC is not permissible as both the consumer case are pending in separate commission. Thus, the analogues hearing prayer of OP-6 is not tenable.

In view of the aforesaid discussion, the consumer case is allowed in part ex parte against the OP-3 being the erstwhile partner of OP-1 Bhumi Developers & Interiors. The case is also dismissed on contest against OP-6 and also dismissed ex parte against OP-4.

Hence,

Ordered

That the OP-3 Smt. Ranja Basu is directed to handover physical possession of proportionate area on the ground floor and 3^rd floor of subject  building  in terms of the Development Agreement dated 29.12.2014 to the complainants within 90 days from the date of order. We do not pass any order with regard to interest, compensation and cost of litigation, if the OP-3 fails to comply the above directions within the period mentioned above, then the complainants are at liberty to get the order implement with due course of law.

Copy of the judgment be supplied to the parties free of cost as per CP Act. Upload the judgment on the website of this Commission for perusal of the parties.