Order-7.

Date-18/05/2017.

       Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

Complainant’s case in short is that she is the recorded owner in respect of all that piece and parcel of land measuring 4 Cottahs at Mouza-Laskarhat, J.L. No. 11, Khatian No. 145 and 146, Dag No. 161 and 167, KMC Ward No. 107, being the KMC premises No. 372, Laskarhat, PO . Tiljala, PS . Kasba, Kolkata – 700 039. The Complainant had entered into an development agreement on 13.06.2010 with the OP-Developer in respect of above mentioned property. In terms of the Development Agreement, the Complainant also executed and registered a general power of attorney in favour of the OP on 11.05.2012. The OP also got sanctioned of residential building plan in the name of the Complainant in respect of G+3 Storied Residential Building at the above premises and thereafter the Developer had constructed a G+3 Storied Residential Building at the said land. As per the development agreement it was settled that the Complainant will be provided 50 percent built up area of the building, by the O.P.- Developer being  owner’s allocation, and it will be the entire first floor, part of top floor back side i.e. 50 percent of the top floor and 50 percent of the ground floor car parking area. The developer promised to complete the construction of the building within 30 months from the date of the sanction of the building plan i.e. from 04.07.2011. The developer was also supposed to give Complainant in possession of the owner’s allocation in complete and habitable condition in all respect in the said building prior to delivery of possession of the developer’s allocation to any purchaser but the OP started to handover the developer’s allocation to the purchasers and as such the Complainant was compelled to revoke the said general power of attorney on 04.08.2015. It is stated that OP handed over the entire first floor but not in habitable condition. The O.P. also handed over to the Complainant only 3 car parking area i.e. 546 Sq. ft. and the OP retained his car parking area i.e. 866 Sq. ft. It is alleged that Complainant was allotted car parking area less than 50 percent of total car parking area. It is stated that one flat was given from back side on top floor of the G+3 Storied  Residential Building of the Complainant which is less than 50 percent from  top floor. The Developer, thereafter issued an a/c payee cheque of Rs. 8 lacs in the name of the Complainant on 17.11.2016 vide cheque No. 070982 drawn on IDBI Bank , Sarat Bose Road Branch being value of the shortage of the flat area on the top floor and the Complainant deposited the cheque  on 19.11.2016 for encashment but on 22.11.2016 the Complainant came to know from her Bank that the cheque in question was bounced on 21.l11.2016 due to ‘stop payment’ by the OP. It is also alleged that developer handed over the said flats and only 3 car parking area /garages by the end of January,2016 i.e. beyond the schedule time and that too without any possession letter and completion certificate of the building. It is also alleged that the Complainant had incurred about Rs.4 lakhs to do incomplete tiles work of the first floor of the flat and for fixing one iron grill at verandah on top floor, for fitting lift machine, for other fitting and fixture of  waste and water pipe line etc. It is stated that the Complainant is an old aged person and developer did not perform his duties. It is alleged that the OP is deficient in rendering services to the complainant. The Complainant also sent a legal notice dated 13.01.2017 to the OP to solve the problems, but to no good. Hence this case.

Despite sending Summons and subsequent Newspaper publication OP – Developer has not entered in to appearance or contested the case. The case has proceeded ex parte against the OP.     

Point for Decision

1)         Whether the OP is deficient in rendering services to the Complainant?

2)         Whether the Complainant is entitled to get the relief as prayed for?

Decision with Reasons

            We have perused the documents on record i.e. photocopy of Development of Agreement dated 13,.06.2011, Photocopy of titled deed in the  name of the Complainant, photocopy of Registered General Power of Attorney, photocopy of sanctioned residential building plan, photocopy of Banker’s report in respect of bounced of cheque being no. 070982 dated 17.11.2016 drawn on IDBI Bank, Sarat Bose Road Branch, photocopy of legal notice and other documents on records.

            We find that the Complainant had entered into an agreement with the OP Developer on 13.06.2016 to develop her own scheduled property as furnished in the petition of complaint. As per the terms and conditions cited in the development agreement, the Complainant also executed and registered a general power of attorney in favour of the OP in respect of the subject property which was duly registered on 16.05.2017. OP also obtained a sanctioned residential building plan in respect of G+3 Storied Residential Building at the said premises no. 372, Laskarhat, PO . Tiljala, PS . Kasba, Kolkata – 700 039,from KMC vide B.P.No.261/XII/11-12 dated 04.07.2011

and the Complainant thereafter constructed a of G+3 Storied Residential Building at the said land. As per running page no. 18 of the developer agreement, it appears that the Complainant will be provided 50 percent built up area of the building by the OP as per sanctioned plan to be sanctioned by the KMC being owner’s allocation and such owner’s allocation will be entire first floor, part of the top floor back side and 50 percent of the ground floor car parking area. It is alleged that the 3 car parking area / garage was given from the back side on the ground floor which is less than 50 percent car parking area and one flat was given from  the back side on top floor of the G+3 storied residential building which is less than 50 percent from top floor. We also find that OP issued an A/c Payee check No. 070982 drawn on IDBI  Bank, Sarat Bose Road as value of the shortage of flat area of  top floor and the Complainant deposited the check on 19.11.2016 for encashment on 22.11.2016, the cheque in question was bounced due to ‘stop payment’ by the OP. It is also alleged that OP wassupposed to complete the construction of the building within 30 months from the date of sanction of the building plan, but O.P. failed to complete the same within the scheduled time. It is stated that the OP handed over the said flats and 3 car parking area by the end of January,2016. It is also alleged that OP failed to give any possession letter and completion certificate of the building to the Complainant.

            Despite Newspaper publication, none appeared from the side of the OP to contradict or controvert the allegation of the Complainant. The version of the Complainant as stated in the petition of complaint as well as in examination in chief on affidavit remains unchallenged and uncontroverted. Complainant has alleged that the Complainant had incurred an amount of Rs. 4 lacs to do the incomplete works of the first floor of the flat including expansion of one grill on verandah of first floor, fixtures of lift machine and for fixtures of other fittings, water pipe line etc. etc. No document, however, is filed before us as against such expenses incurred by the Complainant. So we refrain from passing any order for payment of such amount. In the given facts and circumstances and as the case is not challenged or contradicted from the side of O.P. and in absence of any controverting or contradicting materials on record, we think that OP is deficient in rendering service to the Complainant. We accordingly, hold that OP is guilty of deficiency of service. Hon’ble Apex Court in Bunga Vs S.V. Construction in Civil Application No.944/2016 has been pleased to hold that land owner is also a consumer under C.P. Act if the landlord is not sharing the profitor does not control management or sharing liability of the losses or if it is not a joint venture or is a co-adventurer and having no say or control in the construction and participation in business. There is nothing as such in the development agreement dated 13/06/2010 as placed before us from the side of the Complainant. Accordingly, we hold that OP is deficient in rendering services to the complainant.Consequently, the case merits success

Hence,

Ordered

That the instant case be and the same is allowed ex parte but on merit against the OP.

            OP is directed to deliver the possession of 166 sq. ft. car parking area from the ground floor of the scheduled building to the Complainant within one month from the date of this order along with possession letter in respect of owner’s 50 percent car parking area from the ground floor, three flats from first floor and one flat from top floor back side of the scheduled building being owner’s allocation as per development agreement dated 13/06/2010.

            OP is also directed to give an amount of Rs. 8 lacs to the Complainant for dishonor of the  cheque as value of shortage area of flat within the stipulated period, if not realized in any other proceeding.

            OP is also directed to handover completion certificate of the scheduled building to the Complainant within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.