FINAL ORDER/JUDGEMENT

SHRI  ASHOKE KUMAR GANGULY, MEMBER.

            This is a complaint case u/s 35 of the CP Act, 2019. The brief facts of the case is that the Complainants being the owner of the land and structure of the property at 5, Kumar Para Lane, PS- Kasba, Kolkata – 700042 by way of inheritance entered into a registered  Development Agreement  on 15.12.2016 with the  OP for constructing a G+ III storied building after demolishing the existing structure and a registered general power of attorney was executed by the complainants in favour of the OP. It was agreed by and between the parties that  the entire 3^rd floor of the newly constructed building will be the owners’ allocation by constructing three separate flats and a sum of Rs. 60,000/- would also be paid to the complainants in two instalments, first one of  Rs.30,000/-  be paid at the time of execution of the Agreement and the rest Rs.30,000/-   be paid after casting of First Floor. It was also mentioned in the agreement that  If permitted by the KMC for  construction of 4^th Floor, then 30 percent of the constructed area  be given to the complainants as owners’ allocation.

It was also agreed to complete the owners’ allocation by 24 months from the date of development agreement. Rs. 60,000/- as agreed was paid by the Developer but the owners’ allocation was not completed as per development agreement whereas the rest portion is made habitable. Thereafter, a supplementary agreement was executed on 08.11.2019  between the developer and the owners wherein it was agreed that for construction of 5^th floor, owners will get Rs.12,00,000/- as consideration for owners allocation. But till date the developer has not paid the said amount. However the developer handed over the owners’ allocation in incomplete and inhabitable conditions on 17.06.2019 without possession letter. Because of unauthorized construction of 4^th and 5^th floor the KMC lodged a case under section 401A of KMC Act  against the complainants  vide case No. 510 dated 25.12.2017 in Kasba P.S. for which they have been compelled to obtain bail from Alipore Court.  The complainant sent legal notice dated 03.02.2021 to the OP calling upon to settle the legitimate claim of the complainants which was duly received by him but it was not responded by the OP. To sum up the issues, the developer has not completed the third floor specified for the owners and did not make it habitable till date as per agreement dated 15.12.2016 and the agreed area of 30 percent of 4^th floor has also not been given to the complainants. Again,  as per supplementary agreement dated 08.11.2019 Rs.12,00,000/- which was agreed for construction of 5^th floor as consideration for owners’ allocation was not paid in spite of several requests made by the complainants to the developer. Finding no other way, the complainants have approached the Commission for getting justice and relief as mentioned in the complaint petition.

The case has been ordered to proceed ex parte against the OP vide order No.  05 dated  24.11.2021.

                                          Points for Determination

On perusal of the record and the pleading of Ld. Advocate of the complainants  the following points have necessarily come up for determination.

1. Whether the OP has got deficiency in service.
2. Whether the OP has  indulged in unfair trade practice.
3. Whether the Complainants are entitled for the relief/reliefs as prayed for.

Decision with Reasons

Points Nos. 1 to 3 :-

All the points are taken up together for the sake of convenience and brevity in discussion.

Complainants have tendered their Evidence on Affidavit. The complainants have submitted their BNA also.

We have travelled over all the documents placed on record. 

Facts remain that the complainants have entered into a development agreement with the OP vide agreement dated 15.12.2016 which was registered in District Sub-Registrar Alipore, South 24 Pgs on 16.12.2016. Registered Power of Attorney was also  executed by the complainants in favour of the OP on 15.12.2016. From the recital of the development agreement, it is observed that entire 3rd floor consisting of three self contained flats will be handed over by the developer to the complainants along with payment of Rs 60,000/- to the complainants as owners allocation as per terms of the agreement. It is also observed that 30  percent of the constructed area of 4^th floor if permitted by the KMC will be given to the complainants. We also find from the supplementary agreement in between the owners and the OP dated 08.11.2019 that the developer is agreed to pay Rs.12,00,000/- as consideration amount for construction of the 5^th floor if permitted by KMC as owners allocation. The OP however, handed over the owners allocation of 3^rd floor on 17.06.2019 without making it in habitable condition and has paid Rs 60,000/- as per the terms of the development agreement dated 15.12.2016. The developer has not handed over the sanctioned plan of the building till date and for unauthorized construction at 4^th and 5^th floor the KMC lodged a case U/s 401 A of KMC act in Kasba PS vide case No. 510 dated  25.12.2017 and the owners are to take bail from the Ld. District Judge Court, Alipore. The agreement for development was executed on  15.12.2016 and as per terms of the agreement the developer has to handover the owners allocation by 24 months i.e. within 15.12.2018. The possession of the 3^rd floor was handed over on  17.06.2019 in incomplete condition Consideration money of Rs. 12,00,000/- for construction of 5^th floor which was supposed to be paid within 09 months from the date of supplementary agreement dated  08.11.2019 has not been paid by the developer to the complainant till date. The complainants sent legal notice dated 03.02.2021 calling upon the OP to settle their legitimate claim within 15 days from the date of receipt of the notice. Notice was duly received by the OP but he did not reply the same for the reason best known to him. It is also observed from the complaint petition that the owners allocation of 30  percent of the 4^th floor has also not been handed over by the OP to the complainants.The sanctioned building plan has not been handed over by the OP. The completion certificate of the building also not given by the OP.

Under the above situation, we are of the considered view that the OP has not complied with the terms and conditions which ought to be fulfilled by him as his part as per the registered development agreement dated 15.12.2016 and supplementary agreement dated 08.11.2019. As such, deficiency in service and unfair trade practice on the part of the OP are established.

Thus, all the points are answered in the affirmative .

In the result, the Complaint succeeds.

Hence,

                     Ordered 

That the Complaint Case be and the same is allowed ex parte against the OP  with the following directions:-

1. The OP is directed to pay the sum of Rs. 12,00,000/- to the complainants with simple interest  at the rate of 6 percent from 01.11.2020  till the date of payment.

2. The OP is further directed to hand over the 30  percent area of the 4^th floor of the said building in default, the OP is directed to pay Rs. 10,00,000/-  to the complainants with simple interest  at the rate of 6  percent from 01.11.2020 till the date of payment.

3. The OP is directed to handover a copy of the sanctioned building plan to the complainants.

4. The OP is directed to complete the owners allocation of the 3^rd floor of the building in habitable condition as per the development agreement dated  15.12.2016.

5. The OP is directed to handover the completion certificate of newly constructed building from the competent authority of the KMC.

6. The OP is directed to pay a sum of Rs.  50,000/- to the complainants as compensation for the harassment and mental agony suffered by them.

7. The OP is also directed to  pay a litigation cost of Rs. 15,000/-  to the Complainants.

The above orders are to be complied with by the OP within a period 60 days from the date of the order else the Complainant will be at liberty to put the order in execution as per rules.

Order be communicated to the Complainant as per rules and the judgment be uploaded forthwith on the website of the Commission for perusal of the parties.