Hon’ble Mr. Ajeya Matilal, Presiding Member
This is a case u/s 12 of the Consumer Protection Act 1986 with a prayer for direction upon the Opposite Party No.1 for delivery of possession of two flats containing 1000 sq. ft. along with all fixtures and fittings following an registered agreement dt. 25.05.2015 executed between the parties with an alternative prayer for refund of Rs.30 Lakh, being the market value of the flats along with compensation, legal expenses, monthly rent @ Rs.4000/- per month from 2016 upto the period of delivery of possession of two flats and other reliefs.
The fact of the case is, in short, that the Complainant is an original resident of 5, Sashthitala Lane, which originally belonged to his mother. She gifted certain portion of the aforesaid holding No. 5 in favour of the Complainant. So, the Complainant became the owner of the said holding. The proforma Opposite Parties are also the owners of the land with the building and at the persuasion of Opposite Party No.1 the Complainant and the proforma Opposite Parties entered into a written Development Agreement with a general power of attorney on 25.05.2015 with the Opposite Party No. 1, which was registered in BSR-II Hooghly, being numbered 060201138 for the year 2015. As per clause 3 of the said agreement, it was agreed upon that the possession of the property would be handed over to the developer and accordingly, the possession of the aforesaid holding was duly handed over to the Developer. It was obligatory on the part of the Developer/Opposite Party no.1 to deliver the possession of two flats measuring 1000 sq. ft. on the second floor of the proposed multi-storeyed building in favour of the Complainant within January 2016 as per clause 7 of the agreement.
Subsequent to that registered agreement and handing over the possession of the building, another agreement was executed between the Claimant and Opposite Party No.1. It was mentioned therein that two flats containing the measurement of 1000 sq. ft. on the second floor will be given in favour of the Complainant but, if till delivery of possession of the aforesaid flats is not given within the statutory period of January 2016 the Opposite Party No. 1 will bear the expenses of rent of the claimant for the rented accommodation. Accordingly, the Opposite Party No.1 shifted the claimant in a rented accommodation at the house of Shekhar Kr. Pal at a monthly rent of Rs.4000/- per month according to English calendar month and the claimant on and from June 2015 started residing in the aforesaid rented accommodation after delivery of vacant possession of their aforesaid property in favour of the Opposite Party No.1. Accordingly, the Opposite Party paid aforesaid rent up to Month of November 2016 to the aforesaid landlord, in question and the written agreement was made between the landlord and the claimant, in which the Opposite Party No.1 signed his name as a witness. After the month of November 2016 the complainant paid rent to his landlord as the Opposite Party No.1 did not pay the same to the landlord. The aforesaid flats were more or less complete and the Complainant was very much eager to take delivery of possession of the same, for which he pursued for arranging new electric connection to Opposite Party No.1 as per clause 17 of the agreement. The Opposite Party took Rs.5000/- and received Rs.10,000/- for connection on 23.11.2016. But no money receipt has been issued by the Opposite Party No.1 in spite of several requests. Since the month of December 2016, the Opposite Party No.1 suddenly stopped to pay the monthly rent to the landlord and then the claimant went to the Opposite Party No.1 requesting him either to deliver the possession of the said flats, as per agreement or to continue payment of the aforesaid rent to the landlord of the Complainant. But the Opposite Party No.1 did not do the needful and used to kill time under different pretext. On 19.03.2017 the Opposite Party No.1 flatly refused to comply with his obligations in terms of the registered agreement. So, the claimant filed this case stating that the cause of action of the case arose on 19.03.2017. The Opposite Party No.1 initially contested the case by filing a written version. He denied that there was any deficiency in service on the part of the Opposite Party No.1. It is denied that he made any delay to complete the construction. It is also disputed that there was any cause of action for the complainant to file the case. He prayed for dismissal of the case.
But subsequently, the case proceeded ex-parte against him. No evidence has been adduced by the said Opposite Party. The case also proceeded ex-parte against the other Opposite Parties. The Complainant Mrityunjay Mukherjee adduced his evidence in chief by way of affidavit. He filed certain documents in support of his case. The Development Agreement with general Power of Attorney dt. 06.07.2015 is found in page 7 of the annexure of the complaint. It is apparent that the possession of the holding concern was handed over to the developer within the stipulated period. It is apparent from evidence that the Opposite Party did not deliver possession of two flats measuring 1000 sq. ft. on the second floor of the proposed multi-storied building in favour of the Complainant within January 2016.
For proper adjudication of the disputes between the parties following point are required to be considered:
- Whether the complainant is a consumer?
- Whether there was any deficiency in service?
- Whether the complainant is entitled to relief as prayed for?
For the sake of convenience, the points are taken together for discussion:
The development agreement between the parties executed on 06.07.2015 is annexed as continuing page 7 of the complaint. It appears from the same the owners handed over all concerning documents including all deeds, copy of RS Porcha and LR Porcha, rent receipt etc. in respect of A Scheduled Property to the developer for his satisfaction. The complainant handed over the same to the developers. It was a development agreement with general power of attorney. The possession of the said property was scheduled to be handed over by the owner to the developer within December 2015. According to the complainant the aforesaid flat was more or less complete and the complainant was eager to get the possession of the flats. He pursued the matter regarding arrangement of new electric connection to the Opposite Party No. 1 as per clause 17 of the agreement and he took Rs.5000/- for connection and Rs.10,000/- for colouring of the flats on 23.11.2016, but no money receipt was issued in favour of the Complainant by the Opposite Party No.1 in spite of several requests. As the possession of the flat was not delivered to the Complainant within the statutory period, so, the OP No. 1 assured that he would bear the rent of the petitioner in the rented accommodation and accordingly, the OP No. 1 shifted the petitioner in a rented accommodation in the House of one Shekhar Kr. Pal @ 4000/- per month according to English Calendar month. The complainant on and from the month of June 2015 started to reside in the aforesaid rented accommodation. Accordingly, the aforesaid rent was paid by the OP No. 1 upto the month of November 2015. The Claimant, the OP No. 1 signed his name as a witness of the agreement between the tenant and the landlord. According to the Complainant, although the OP received money for new electric connection and colouring the flats in 2017, but OP flatly refused to comply with his obligatory part of the registered instrument. According to the complainant the cause of action of the case arose on 19.03.2017. Another agreement between the developer and the owner of the land is already on record. But we cannot give much attention to the same because it is an undated agreement.
Our attention was drawn to the order No. W.P. 25078 (W) 2015 of the Hon’ble High Court enclosed in page 18 of the Complaint the Hon’ble High Court in paragraph 2 of the order observed,
“However, I passed an order of injunction restraining the respondent No.10 not to make any construction pending disposal of the case before the Municipality which would increase vertical lateral dimension of building other construction work may continue but this construction will be subject to orders passed by the Municipality.”
The Ld. Advocate for the complainant drew our attention to paragraph 12, page 13 of the written version filed by the OP No.1, wherefrom the OP No.1 stated that, “It is reiterated that the OP no. 1 did not make any delay for laches to complete the construction. The said delay was caused, due to certain frivolous harassing petitions filed against the OP No. 1”.
Our attention was also drawn to page 6 para (i) of the written version where it has been mentioned, “Pursuant to the order dt. 11.08.2016 read in the light of direction passed in the order dt. 19.08.2016 the said Municipality gave opportunity of hearing to all concerned parties and finally vide order dt. 19.06.2017 withdrew the said stop work notice dt. 07.08.2015 issued by the Municipality.”
Our attention was drawn to the rent receipts filed by the complainant, wherefrom it appears that he paid rents to his landlord. It appears from the complaint that rent was paid by the OP no. 1 in the month of November 2016 and subsequent to that period the complainant paid rent personally.
So, it appears that there was a registered development agreement with general power of attorney dt. 25.07.2015 between the parties. In view of the said agreement the complainant and the profoma Opposite Parties handed over the property to the Opposite party No.1 for development.
So, the complainant is a consumer. But in terms of the agreement, the Opposite Party did not hand over the possession of the flats, in question within the stipulated period.
Although the complainant alleged that as per clause 17 of the agreement OP took Rs.5,000/- for electric connection and Rs.10,000/- for colouring on 23.11.2016 but no such receipt has been filed by the complainant. So, his prayer for refund of Rs.15,000/- for electric connection and colouring cannot be entertained.
It appears from the receipt that the complainant paid rent @ Rs.4000/- per month from the month of December 2016 and he has been paying the rent. It is apparent that within the stipulated period mentioned in the agreement the OP No.1 did not deliver possession of the flats. So, there is deficiency in service on the OP No. 1. We perused the rent receipts along with the other documents.
There is nothing to disbelieve the unchallenged evidence of the Complainant.
It appears from this discussion, that the complainant is a consumer and there is deficiency in service, as the Opposite Party No.1 did not comply with the terms of the development agreement. So, the complainant is entitled to reliefs.
So, all the points are decided accordingly in favour of the Complainant.
So, the case succeeds.
Hence it is
Ordered
The Complaint Case No. 563/2017 is allowed ex-parte against the Opposite Parties, in part. The Opposite Party No.1 is directed to deliver the possession of two flats measuring 1000 sq. ft. along with all fixtures and fittings as per Registered Agreement dt. 25.05.2019 and pay compensation of Rs.1,00,000/- (Rupees one lakh only) and litigation cost of Rs.25,000/-(Rupees Twenty five thousands only) and rent of Rs.4,000/-(Rupees Four thousands only) per month for the period from the month of December 2016 till the date of delivery of possession within sixty days from this Order, failing which the Complainant will be at liberty to put the order into execution.
Let a copy of this order be given to the Complainant free of costs.
