FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.35 of the C.P. Act, 2019.

Brief facts of the cases are that the complainant, her mother Smt. Malati Srivastave, since deseased along with Proforma OPs 2 to 4 are joint owners, of KMC Premises No. 36/1A Pulin Khatick Road, Kolkata-700015. The complainant and other Proforma OPs has entered into Development Agreement dated  22.10.2014 for construction of a building in the said Premises. In terms of the Development Agreement, the complainant vacated her occupied portion of the building and temporarily shifted to another rented house.

Despite construction of the building the OP-1 did not handover one shop room and one flat of owners allocation to the complainant in the newly constructed building. Complainant further alleged that the OP-1 in connivance with Proforma OP-2 deprived the complainant and did not give her allocation in the new building as agreed upon. The OPs 2 and 3 have got their possession in the newly constructed building. Having no other alterative the complainant issued legal notice dated 29.01.2020 to the OP-1 but such notice was unattended. The OP-1 did not perform his obligation in the terms of the Development Agreement. There is deficiency in service and unfair trade practice on the part of the OP-1. Finding no other way out, the complainant filed the present consumer complaint.

Despite service of notices upon the OPs they did not turn up to contest the case by filing WV. Thus, the case do proceeded ex parte against the OPs.

Complainant Eitti Srivastava has filed her evidence by way of affidavit supporting the allegation made in the complaint. The complainant by way of un-contradicting testimony has proved that the OP-1 and his partner Md. Jalaluddin have entered into an Development Agreement with the complainant, her mother Malti Srivastava, since deseased and profroma OPs 2 to 4 for construction of a building on KMC Premises No. 36/1A Pulin Khatick Road, Kolkata-700015. In terms of the Development Agreement the joint owners are entitled to get four shop rooms measuring about  125 sq. ft. each on the ground floor and four self contained flat measuring about  500 sq. ft. each on each floor of the proposed G+5 storied building. Complainant has deposed that despite completion of building the OP-1 did not hand over her allocation on the ground floor measuring about 125 sq. ft. and a self contained flat measuring about  500 sq. ft. Legal notice dated 29.01.2020 was duly served upon the OP-1 but such notice was unattended. The OP-1 being the Developer has committed deficiency in service and as per Development Agreement he is liable to allocate a shop room measuring about  125 sq. ft.  and a self contained flat measuring about 500 sq. ft. to the  complainant within the specified period. The Developer failed to fulfill his commitment. There is no evidence on the part of the OP-1 to rebut the evidence of complainant. Practically, the evidence of the complainant remained unchallenged. Therefore, we have no hesitation in concluding that the OP-1 has committed deficiency in service and also has indulged in unfair trade practice.

In view of the discussion above, the complaint is allowed with following directions:-

1. The OP-1/Developer is directed to handover 125 sq. ft. shop room on the ground floor and a self contained flat measuring about 500 sq. ft. at KMC Premises No. 36/1A, Pulin Khatick Road, Kolkata-700015 to the complainant in terms of the Development Agreement dated 22.10.2014 within 60 days from today alternatively to pay a sum of Rs. 28,37,500/- being the  value of the shop room and self contained flat within the specified period.

2. The OP-1 is directed to pay a sum of Rs.  30,000/- to the complainant as compensation within the specified period.

3. The OP-1 is directed to Rs.  5,000/- as litigation cost to the complainant within the specified period.

Copy of the judgment be given to the parties as per rules.

A copy of the judgment be provided to the parties as mandated by the CP Act. The judgment be uploaded forthwith on the website of this commission for perusal of the parties.