Date of filing: 06/01/2021                                       

Date of Judgment: 11/04/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complaint is filed by the complainants namely (1) Lakshmi Bhattacharjee (2) Smt. Semanti Chakraborty and (3) Sri Chandra Madhav Bhattacharjee under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OPs hereinafter) (1) Sri Benoy Kr. Sarkar (2) Sri Ashim Bhattacharjee and (3) Smt. Debjani Bhattacharjee (OP 2 & 3 are proforma OPs) alleging deficiency in rendering of service on the part of the OP No. 1.

Case of the complainants in short is that a development agreement dated 13/11/2014 was entered into between (1) Nanibala Devi (since deceased), (2) Sri Sadhan Bhattacharjee (3) Sri Ashim Bhattacharjee and (4) Smt Debjani Bhattacharjee as owners and OP 1 as developer to construct a multi storied building and Power of Attorney was also executed in favour of the developer. Nanibala Devi died intestate on 01/04/2017 leaving behind Sri Sadhan Bhattacharjee, Sri Ashim Bhattacharjee and Smt. Debjani Bhattacharjee as her legal heirs. The husband of Nanibala predeceased her. After the death of Nanibala all the three legal heirs named above inherited 1/3^rd share each in the property of Nanibala Devi. Present complainants are the legal heirs of Sadhan Bhattacharjee who died intestate on 30/05/2019. As per Power of Attorney executed in favour of OP No. 1, he sold the flat allotted to Nanibala Devi at a total consideration price of Rs. 23,40,000/-. So the present complainants being the legal heirs of Sadhan Bhattacharjee are entitled to 1/3^rd  share of Rs. 7,80,000/- out of the said amount of Rs. 23,40,000/-. Complainants requested several times to OP 1, to handover the said amount but all in vain. As per the development agreement dated 13/11/2014 land owners are also jointly entitled to the car parking space in the ground floor of the said premises but the same has not been handed over by the opposite party no. 1. Complainants are entitled to their 1/3^rd share in the car parking space. OP 1 has also failed and neglected to issue the completion certificate. So the present complaint has been filed praying for directing the OP 1 to pay Rs. 7,80,000/- along with interest @ of 18% p.a. since November, 2017, to hand over peaceful and khas possession of the share of the complainants in the car parking space or in alternatively to pay the present market value of their share of car parking space, to issue completion certificate, to pay Rs. 12,00,000/- for harassment and to pay Rs. 1,00,000/- as litigation cost.

On perusal of the record it appears in spite of service of notice OPs did not turn up so the case has been heard exparte.

So the only point requires determination is whether the complainants are entitled to the relief as prayed for?

DECISION WITH REASON

In order to support their claim, complainants have filed the copy of the development agreement dated 13/11/2014 wherefrom it appears owners namely Nanibala Debi, Sadhan Bhattacharjee, Ashim Bhattacharjee, and Debjani Bhattacharjee were entitled to owners allocation of four nos. of flat and one car parking space. Complainants have also filed the Power of Attorney executed by those owners in favour of the OP 1 the developer. According to the claim of the complainants car parking space as per owners’ allocation in the ground floor has not been handed over by the OP developer. Even though proforma OP 2 & 3 are co-owners and party to the development agreement, but they have not appeared in this case to support the case of the complainants about not handing over of car parking space. Be that as it may, since before this commission there is absolutely no contrary material that the possession of the car parking space has not been handed over, even accepting the claim of the complainants that they are co-owners after the death of Sadhan Bhattacharjee but they cannot be entitled to the entire car parking space. So far as their prayer for directing the OP No. 1 to pay 1/3^rd share of the value of the car parking space, complainants have not filed any documents to show market value of the said car parking space. Neither they have mentioned any specific amount they are entitled towards their share. So in the absence of any specific documents regarding valuation of the car parking space, any direction in this regard will be ineffective and will suffer from vagueness.

With regard to the claim of the complainants that they are entitled to 1/3^rd share in the consideration price of the flat of Nanibala Devi (since deceased), on a careful scrutiny of deed of sale filed by the complainants dated 08/11/2017, it is evident that OP No. 1 sold the flat of Nanibala Devi to Dinabandhu Mukherjee and Shipra Mukherjee as attorney of the owners namely Sadhan Bhattacharjee and proforma OP 2 & 3. It is apparent that no service as such was hired by the complainants or their predecessor in interest. The owners including the predecessor in interest of complainants had hired the service of OP developer to construct multi storied building but after it was completed and flats were handed over to the owners as per owners’ allocation in the development agreement, the sale of a readymade flat allotted in the name of Nanibala was a simplicitor sale by OP 1 on behalf of other co-owners after the death of Nanibala. So it is a simple case of recovery of money for which the competent Civil Court only has jurisdiction. The prerequisite element to bring a case under the provision of Consumer Protection Act is to hire or avail the “service” as specified under the Act. Since this is a simple case of recovery of money, for which money suit lies, there cannot be any direction of payment of Rs. 7,80,000/- as prayed by the complainants.  

However as it appears from the recital of the development agreement and the Power of Attorney that the building shall be constructed as per the building sanctioned plan from KMC and as according to complainants, completion certificate has not been handed over, complainants are entitled to the completion certificate.

Hence

ORDERED

CC/13/2021 is allowed in part against OP 1 and dismissed against OP 2 & 3. OP 1 is directed to hand over the completion certificate of the building as described in the schedule of the development agreement dated 13/11/2014 i.e. premises No. 65, Sarat Chatterjee Road, Pannashree, Pally, Kolkata – 700 060 within three months from this date. OP 1 is directed further to pay Rs. 10,000/- as litigation cost to the complainants within the aforesaid period of three months.