Date of filing : 1.3.2017
Judgment : Dt.14.3.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Mr. Kashinath Ghosh alias Dholey, 2(a) Smt.Alpana Ghosh alias Dholey wife of Late Kesto Ghosh, 2(b) Sri Laltu Ghosh S/o Late Kesto Ghosh, (3) Mr. Bijoy Ghosh alias Dholey, 1 & 3 are all son of Late Khadu Ghosh alias Dholey, (4) Mrs. Sandhya Ghosh, widow of Late Lakshman Chandra Ghosh alias Dholey, (5) Mr. Palash Ghosh alias Dholey, son of late Lakshman Alias Dholey, (6) Mrs. Mallika Poyali, wife of Mr. Swapan Poyali, Daughter of late Lakshman Chandra Dholey, (7) Mrs. Juthika Ghosh, wife of Kapildev Ghosh, daughter of late Lakshman Chandra Ghosh alias Dholey, (8) Mrs. Shefali Ghosh, widow of late Balaram Ghosh alias Dholey, (9) Mr. Probir Ghosh, son of late Balaram Ghosh alias Dholey, (10) Mrs. Pampa Dholey, wife of Mr. Sanjib Dholey, daughter of late Balaram Ghosh alias Dholey and (11) Mrs. Jhumpa Ghosh, daughter of late Balaram Ghosh alias Dholey, No.1 to 11 re of 64/5/B Buroshibtala Main Road, Police Station – Behala, Kolkata-700 038, Dist.- 24-Parganas (S) alleging deficiency in service on the part of the opposite parties (Referred OP hereinafter) namely (1) Mr. Akhtar Hossain, son of Ahmed Hossain of B 48H/1, Bright Street, P.S.-Karaya, Kolkata-700 017, (2) Mr. Arif Ali and (3) Sk. Arshad Ali, No.2 & 3 are sons of Wasif Ali, residing at 6B, Tiljala Road, P.S.-Beniapukur, Kolkata-700 046.
Excluding the unnecessary details, the statement made by the Complainants is that they being owners of a piece of land lying and situated at premises No.22, Buroshibtala Main Road also known as 64/5/B Buroshibtala Main Road, Police Station – Behala, Kolkata-700 038, in Kolkata Municipal Corporation Ward No.117, entered into a joint venture Agreement with the OP Developers on 14.12.2011 under certain terms and conditions and executed a Power of Attorney in favour of the OP Developers. The Complainants have alleged non-delivery of owners’ allocation portion, non-completion of the construction work and non-payment of rent by the OPs as per terms of the Agreement dt.14.12.2011 though they have served a demand notice dt.9.9.2015 upon the OP Developers. Accordingly, they have prayed for direction upon OPs to comply the terms and conditions of the owners’ allocation mentioned in the Joint Venture Agreement dt.14.12.2011, to bear the cost of Rs.2.50-lakh for each flat, to pay a cost of Rs.2,00,000/- for damages and Rs.50,000/- for mental agony.
The Opposite parties contested the case by filing written version denying and disputing all the material allegation made out in the petition of complaint stating inter alia, that in terms of the Joint Venture Agreement dt.14.12.2011 the OPs completed the construction of the said G+III storied building and handed over the owners’ allocation plus extra constructed area to the Complainant and cost of such construction of extra area is still payable by the Complainants.
The Complainants and opposite parties adduced evidence followed by cross examination in the form of questionnaires and reply thereto .
The Complainants have annexed photocopies of Joint Venture Agreement dt.14.12.2011, General Power of Attorney, Advocate’s letter dt.9.9.2015 issued by the Advocate for the Complainants to the OPs.
In course of argument Ld. Advocate for the Complainants narrated the facts mentioned in the petition of complaint. Ld. Advocate on behalf of the OPs submitted that no notice dt.9.9.2015 had been served upon them. Moreover, they had handed over the owner’s allocation along with extra constructed area.
Points for determination
- Whether there is deficiency in providing service?
- Whether the Complainants are entitled to the relief as prayed for?
Decision with reasons
Both points are taken up together for comprehensive discussion and decision.
Admittedly, the Complainants/landowners and the opposite parties/ developers entered into a joint venture agreement on 14.12.2011 in respect of development of a piece of land situated at premises No.22, Buroshibtala Main Road and also known as 64/5/B, Buroshibtala Main Road, P.S.-Behala, Kolkata-700 038, Dist.- South 24-Parganas, under the Kolkata Municipal Corporation Ward No.117 by constructing a G+III storied building therein under certain terms and conditions including land owners’ allocation and Developers’ allocation portion in the said property. Admittedly, the Complainants/landowners executed a registered Power of Attorney in favour of the developers. It is also admitted that the Developers obtained a building plan sanctioned by Kolkata Municipal Corporation vide No.2012130633, borough No.XIII dt.1.3.2013. The Complainants have alleged that the OPs did not complete the construction work as per sanctioned building plan and, moreover, as per terms of the Agreement dt.14.12.2011 the OPs did not deliver proper allocation of the Complainants and, further non-completion of the work in respect of floor, window, kitchen, drain, sink doors of the flats, the stair, staircase water-line connection electric metre and outside paint of the building. It is also alleged by the Complainant that the OPs did not pay towards monthly rent to be borne by the Developer as per terms of the Agreement dt.14.12.2011. The Complainants claimed to have served a demand notice dt.9.9.2015 through their Ld.Advocate to that effect but the OPs remained silent. The Complainants have annexed the said letter to the petition of complaint, wherefrom it is evident that the Complainants requested the OPs to refund an amount of Rs.95,000/- towards excess payment for an extra area measuring 125 sq.ft. It is also evident therefrom that the Complainants demanded Rs.10,000/- towards rent and Rs.9,000/- towards price of grill which they had to purchase as the Developers did not provide them the same.
In course of hearing of the case the OPs submitted that the letter dt.9.9.2015 had not been served upon them.
As regards allegation regarding non-delivery of owners’ allocation as per terms of the Agreement dt.14.12.2011 the OP Developers has stated that they had handed over the owner’s allocation portion to the Complainants even an excess area of 125 sq.ft. area also handed over to them. In this regard, both sides adduced evidence o n affidavit swearing their respective version on oath. The Complainant did not file any authentic document like report of Engineer Commissioner so that the delivered area of the owners’ allocation has not been in accordance with the terms of Agreement dt.14.12.2011. Moreover it , the Advocate’s letter dt.9.9.2015 there is mention/demand for shortfall of delivered area towards owners allocation.
Considering the above mentioned facts, we are of opinion that the Complainants failed to substantiate their allegation regarding non-delivery of owners allocation as per terms of the Agreement dt.14.12.2011.
As regards the allegation for non-completion of the construction work, it is also found that the Complainants did not furnish any authentic documents like report of Engineer Commissioner and, therefore, failed to substantiate their allegation.
As regards non-payment of rent, it is observed that the Complainants in their cross examination of the OPs (Question No.14) asked the OPs whether they have paid shifting charges the OP replied affirmative.
Considering the situation mentioned hereinabove, we are of opinion that the Complainants have failed to substantiate their allegation by adducing cogent evidence.
Point Nos.1 & 2 decided accordingly.
In the result, the Consumer Complainant succeeds/does not succeed.
Hence,
ordered
That CC/123/2017 is dismissed on contest but without any order as to cost.
