MR. AYAN SINHA, MEMBER This is a complaint u/s 35 of the C.P. Act, 2019 made by Kamal Kumar De alleging deficiency of service and unfair trade practice against the OP-developer Sachin Mitra and, accordingly prays for a direction upon the OP to handover owner’s share along with completion certificate, to pay Rs.5,000/- per month for delay in transfer of the property as per agreement, to pay compensation of Rs.5,00,000/- along with litigation cost of Rs.2,00,000/-. FACTS IN BRIEF The complainant being the land-owner entered into a development agreement on 30.09.2022 with the OP for development of his land and for a construction of G+3 storied building to which the complainant is entitled to get 37 % share along with a covered car parking space of 35 sqr. metre. As stated in the complaint petition, the OP-developer constructed G+4 storied building with KMC plan but the same was completed without the permission of the land-owner. Thereafter, OP sold his portion without handing over 37 % proportionate share to the complainant and also did not handover the completion certificate. As per the development agreement, the project was to be completed within 18 months with the maximum period extended up to three months, if not completed. But till date, the OP has not complied the terms of agreement and, thus, complainant filed this case. POINTS FOR DETERMINATION - Whether the complainant is a consumer under the purview of CP Act, 2019?
- Whether there was any unfair trade practice and deficiency of service on the part of the OP as alleged?
- Whether the complainant is entitled to the relief(s) as prayed for?
DECISION WITH REASONS All points are taken up together for the sake of brevity and in order to avoid repetition of facts. We have carefully perused the complaint petition and the copies of documents annexed therein. On perusal of the agreement dated 30.09.2003, it is noticed that the complainant being the land-owner entered into an agreement with the OP-developer for development of his land and construction of a G+3 storied building against which the developer will allot 37% share of the total covered area along with car parking space of 35 sqr. metre to the complainant. So, there is no doubt that the complainant is a consumer as per Section 2(7) of the C.P. Act, 2019 as he has availed/hired the service of the OP-developer. On further scrutiny of the agreement, it is seen that the said G+3 storied building was to be constructed according to the KMC plan and the delivery of the possession will be handed over by the OP to the complainant within 18 months, which may be extended up to three months. Since the said 37% proportionate share of the land-owner along with car parking space of 35 sqr metre have not been handed over to the complainant as per the agreement dated 30.09.2003 and so we hold there is certainly a deficiency of service and unfair trade practice on the part of the OP. Moreover, the allegations of the instant case remained unchallenged and unrebutted also. Therefore, the complainant is entitled to the relief(s) as he has succeeded in proving his case. It is pertinent to mention here that although the complainant has alleged that the OP had constructed G+4 storied building instead of G+3, but there is no scrap of paper filed in support of his contention. It is also observed that the complainant remained silent for approximately 16 years and thereafter filed this instant case before this commission on 08.12.2021. So, we are of the view it would be just and proper if we direct the OP to pay Rs.20,000/- as compensation along with litigation cost of Rs.5,000/- to the complainant, justice would be served. Hence, it is, ORDERED That the instant case be and the same is allowed ex parte against the OP. OP is directed to hand over the peaceful and physical possession of 37% share of the land-owner’s property to the complainant as per the agreement dated 30.09.2022 within 45 days from the date of this order. OP is further directed to hand over the completion certificate along with plan to the complainant in respect of the construction of the scheduled property. OP to pay also compensation of Rs.20,000/- (Twenty thousand rupees only) and litigation cost of Rs.5,000/- (Five thousand rupees only) to the complainant within the aforesaid period. If the awarded order is not complied by the OP within the above mentioned period, the complainant is at liberty to proceed in accordance with law. | 
