Order No.   12    Dated   22/02/2016.

       The case of the complainant in short is that one Samir Kumar Halder was owner and occupier of piece and parcel of land measuring 1 cotah 14 chittacks 36 sq.ft. more or less together with a pucca dilapidated structure standing thereon.

            During enjoyment the said property aforesaid land owner decided to develop the said property by raising a multi-storied building over the said property as per sanctioned building plan and specification as approved by the K.M.C. and as such, an agreement for development was made between said land owner and the developer / o.p. on 15.4.05 with certain terms and conditions, more specifically mentioned in the said agreement for development.

            In terms of the said agreement dt.15.4.05 and after obtaining the sanctioned building plan from the K.M.C. the developer started construction of the said multi-storied building over the said property not as per sanctioned building plan and specification.

            During construction of the said building aforesaid land owner Samir Kumar Halder died on 3.8.09 at P-523, Raja Basanta Roy Road, P.S. Lake, Kolkata-29 leaving behind his last will and testament dt.28.4.09 in favour of the beneficiary / owner / complainant.

            After death of the owner Samir Kumar Halder, the complainant / beneficiary filed probate case for granting probate and /or letter of administration of the said last will and testament of Samir Kumar Halder before the Ld. District Delegate at Alipore being case no.336 of 2009 and obtained probate letter of administration of the said last will and testament on 24.8.11.

            In terms of the said last will / testament of Samir Kumar Halder, complainant Rabi Hati, the beneficiary is entitled to the property as owner by virtue of the said agreement for development dt.15.4.05.

            O.p. did not ascertain any vacuum / confusion in the said mother developer agreement from 15.4.05 till 11.12.11. After the death of Samir Kumar Halder o.p. / developer noticed such vacuum / confusion in the development agreement dt.15.4.05 and thereby o.p. / developer for the purpose of unlawful / illegal gain / unlawful motive with threat to stop further development work and with under pressure upon complainant got a supplementary agreement executed on 12.12.11.

            O.p. completed the multi-storied building on violation of the sanctioned plan and sold out o.ps. share. O.p. did the construction not within the stipulated period. O.p. in violation of terms and conditions did not deliver owner’s share of flat and money in spite of repeated demand. Complainant thereby served notice to deliver owner’s share of flat and money as per agreement. Hence, the case was filed by the complainant with the prayers contained in the prayer portion of the petition of complaint.

            In spite of receipt of notices o.ps. did not contest the case by filing w/v and as such, matter was heard ex parte against the o.ps.

Decision with reasons:

            We have gone through the evidence of complainant and documents in particular and we find that In terms of the said agreement dt.15.4.05 and after obtaining the sanctioned building plan from the K.M.C. the developer started construction of the said multi-storied building over the said property not as per sanctioned building plan and specification.  After death of the owner Samir Kumar Halder, the complainant / beneficiary filed probate case for granting probate and /or letter of administration of the said last will and testament of Samir Kumar Halder before the Ld. District Delegate at Alipore being case no.336 of 2009 and obtained probate letter of administration of the said last will and testament on 24.8.11. O.p. completed the multi-storied building on violation of the sanctioned plan and sold out o.ps. share. O.p. did the construction not within the stipulated period. O.p. in violation of terms and conditions did not deliver owner’s share of flat and money in spite of repeated demand.

            We find that the evidence adduced by complainant has remained unchallenged testimony and there is nothing to disbelieve the same.

            In view of the findings above we find that complainant has substantiated and proved the case as there is deficiency in service on the part of o.ps. being service providers and as such, complainant is entitled to relief.

            Hence, ordered,

            That the case is allowed ex parte with cost against the o.ps. O.ps. are jointly and/or severally directed to deliver the owner share of flat in favour of the complainant and are also directed to pay owner share of money payable to complainant and are also directed to obtain completion certificate from K.M.C. and to deliver the same to complainant and to complete the sewerage connection of the constructed building and are further directed to pay to the complainant compensation of Rs.2,00,000/- (Rupees two lakhs) only for harassment and mental agony and litigation cost of Rs.20,000/- (Rupees twenty thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.      

            Supply certified copy of this order to the parties free of cost.