Hon’ble Mrs. Soma Bhattacharjee, Member

The complaint case 797/2017 has been filed at the instance of deficiency in services on the part of the developer in a consumer dispute of housing construction u/s 17 of C.P. Act, 1986.

 The complainants are Smt. Haimanti Basu w/o Sri Subhomoy Banerjee, Smt. Ishani Dutta w/o Sambhunath Dutta, Smt. Sibani Bakshi w/o Subrata Bakshi, all being daughters of Sisir Kumar Basu since deceased and Sarbani Basu since deceased.

The father of the complainants Sisir Kumar Basu executed a development agreement on 15.12.1997 with the Opposite Party M/s. Aryan Contrade Pvt. Ltd. represented by its Directors Rakesh Singh and Dhiraj Sinha. On the death of Sisir Kumar Basu on  02.10.1998 the w/o Sisir Basu, Sarbani Basu (now deceased) and the 3 complainants executed a Power of Attorney on 16.08.1999 in favour of M/s. Aryan contrade Pvt. Ltd. accepting all terms and conditions as were stated in the development agreement dt. 15.12.1997.

However, it was later found out by the complainants that Dhiraj Sinha had already resigned from the company and therefore in terms of the Companies Act 1956, the partnership firm ceased to exist.

A building plan had already being sanctioned in the name of the original owner Sisir Kumar Basu on 17.08.1999. It was stated in the development agreement dt. 15.12.1997 and Power of Attorney dt. 16.08.1999 that landowners will be entitled to one 1000 sq. ft. flat on the 1^st floor in the front side portion of the new building and another flat of 1000 sq. ft. on the 2^nd floor. The Power of Attorney dt. 1999 was valid for two years up to 16.08.2001. The new building should be completed within 2 years from the date of sanction of plan. Thereafter on 25.01.2001 the landowners had cancelled the Power of Attorney dt. 16.08.1999 and filed a Civil Suit being no. 80/2001 in Alipore South 24 Pgs for recovery of possession. However, the Civil Suit was dismissed for default on 31.01.2008.

On 15.06.2004 by an amicable settlement letter Rakesh Singh, developer committed to deliver possession of flat  no. C1 on 1^st floor and flat no. C2 on 2^nd floor. He arranged electric metre for flat no. C1 in the name of recorded landowner Sisir Kumar Basu. However, the developer failed to handover physical possession of flat no. C1 (as per 2^nd Schedule) in a habitable condition, to the complainant. However,  possession of flat C2 has already been handed over.

The complainants filed evidence on affidavit and also an amended complaint. The OP was duly served notice but he did not appear or file any W.V.

The evidence on affidavit of the complainants therefore remained unchallenged. All material records and BNA submitted by the Ld. Counsel of the complainants is considered.

The argument is heard.

Points for decision are

• Whether the complainant is a consumer
• Whether there is deficiency of service
• Whether the complainant is entitled to any relief

Since the complainants have handed over their land to the developer for construction of a building to which they were entitled to two flats they are consumers.

Since the OP/ developer failed to deliver one flat as per schedule within stipulated time as mentioned in the development agreement there is a deficiency in service on his part. The complainants are entitled to relief as prayed for. So, the complaint case succeeds.

Accordingly it is ordered

The complaint case being no. 797/2017 therefore is allowed ex parte.

The Opposite Party Rakesh Singh, developer is hereby directed to handover flat no. C1, on 1^st floor front side portion measuring 675 sq. ft. as detailed in plan no. 65 / 99-2000 dt. 17.08.1999 in the premises no. 164 Bansdroni Park, P.S. Regent Park, Kolkata 700070 in habitable condition within 60 days from date of pronouncement. Opposite Party is also directed to hand over possession certificate of flat C1. The Opposite Party is directed to pay to the complainants a compensation, for handing over a flat smaller in size than agreed upon, of Rs. 10,00,000/- with an interest of 9% p.a. from the date of agreement 15.12.1997 till its realisation, by 60 days from this day. Opposite Party is also directed to pay litigation cost of Rs. 10,000/- within 60 days from this order.

          The complaint case being no. 797/2017 is hereby disposed of. If the Opposite Party fails to comply with the stipulated date the complainants are at liberty to put the order into execution as per law.