Sri Kashi Nath Paul,

son of late Mano Mohan Paul,

residing at 159/2, Sri .Ram Dhang  Road,

P.S. Malipanchghora, District – Howrah,

PIN – 711106 and also residing at

31/5, Benaras  Road, P.S. Malipanchghora,

District – Howrah.--------------------------------------------------------------  COMPLAINANT.

-          Versus   -

1,         M/S. Supreme Construction Engineer and  Developers,

            a  partnership firm having its registered office

            at 50/2/1, Bhairab Dutta Lane, Nandibagan, Salkia,

            P.S. Golabari, District – Howrah,

            PIN – 711106.

2.         Mrs. Shampa Bhanja,

            wife of Sri P.K. Bhanga,

            partner of M/s. Supreme Construction Engineers and Developers,

            residing at 20/1/16, Brindaban Mullike Lane, P.S. Bantra,

            District – Howrah,

            PIN – 711101.

3.         Smt. Sumity Roy,

            wife of Sri Bidur  Roy,

            a partner of M/s. Supreme Construction Engineers and Developers,

            residing at 51, Bhairab Dutta Lane, P.S. Golabari,

            District – Howrah,

            PIN – 711106. -----------------------------------------------------OPPOSITE PARTIES.

                                                P    R    E     S    E    N     T

President     :     Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.

Member      :      Shri P.K. Chatterjee.

      Member       :     Smt. Jhumki Saha.     

                                                 F  I   N   A    L       O    R   D    E     R

1.               The instant case was filed by the complainant  U/S 12 of the C .P. Act, 1986 ( as amended up to date )  against the o.ps. alleging deficiency in service U/S 2(1)(g), 2(1)(o) of the C.P. Act, 1986 wherein the complainant has prayed for  direction upon the o.ps. to deliver possession of the ‘B’ schedule flat being flat no. 11A  in the first floor together  with the possession letter in favour of the complainant and to pay compensation of  Rs. 2,00,000/- and other relief as the o.ps. in spite of specific agreement dated 04-07-2008  and furtherance of the development agreement on 19-12-2008 did not deliver the flat measuring 837 sq. ft. being the proportionate share of the ‘A’ schedule property.

2.               The o.p. nos. 2, 3 & 4 in his written statement contended interalia that he constructed G + 3 storied building and the total constructed area is 8867 sq. ft. as per the sanctioned plan;  that the o.ps. as developer had agreed  to allocate 42% of the constructed area including super build up area and the proportionate undivided share in the land jointly in favour of the owners. These answering o.ps. / developer further stated that they have obligation to divide and partition the 42% of the allocated share as per agreement dated 04-07-2008. Nevertheless as per agreement they have already handed over the ‘B’ schedule flat to the co-sharers jo9intly measuring 3460 sq. ft. against total constructed area to the owners and thereafter they have negotiated with the intending purchasers. Hence there is no deficiency in service and/ or unfair trade practice on the part of these o.ps.  

3.               Notice was served to the o.p. no. 1 but the same is returned with the postal remarks ‘not known’ which is also to be considered to be a  good service as per Apex  Court  Order for which ex parte order was declared against o.p. no. 1.

4.               Upon pleadings of both parties two points arose for determination :

            i)          Is there any deficiency in service on the part of the O.Ps?

ii)                  Whether the complainant is entitled to get any relief and compensation as prayed for? 

DECISION  WITH   REASONS      :

5.               Both the points are taken up together for consideration. Admittedly the petitioner is the co-owners of the ‘A’ schedule property and there was an agreement on the dated 04-07-2008 between the parties. 42% of the share was to be allocated in favour of the co-owners ( herein the petitioner is one of the shareholder out of  seven numbers altogether ). It is contention of the complainant that he has already made further agreement with the o.ps. on the dated 19-12-2008 with the o.ps. / developer who subsequently allotted flat being flat no. IIA in the first floor of the ‘B’ Schedule flat measuring 837 sq. ft. as per sanctioned plan which is also included the share of one of  the owners namely his sister  Smt. Sipra Tat against deed of gift dated 27-10-2008 in favour of the complainant. In the agreement dated 4-07-2008 it is stipulated that the complainant’s share shall be delivered within 24 months from the date of sanctioned of the building plan but it is palpable that the o.ps. have violated the terms and conditions of the agreement.

6.               Be that as it may it is apparent from the enclosures that the complainant is entitled to get a total flat measuring 837 sq. ft. in terms of further agreement dated 19-12-2008 as per Annexure C  ( as marked, as contended by the o.p. ).  Therefore, we trace gross deficiency in service   on the part of the o.ps.  This is fit case where prayer of the complainant shall be granted.

Both the points are accordingly disposed of.

      Hence,

                                    O     R     D      E      R      E        D

      That the C. C. Case No.  372 of 2013 ( HDF  372 of 2013 )  be  and the same is allowed on contests with costs against o.p. nos. 2, 3, 4 and ex parte with costs against the rest i.e., o.p. no. 1.

      The O.Ps.   be directed to deliver the possession of the ‘B’ Schedule property being flat no. IIA in the first floor measuring 837 sq. ft. within 30 days from the date of this order.

      The complainant is entitled to a compensation to the tune of  Rs. 50,000/- for mental agony, pain and prolonged harassment and a litigation costs of Rs. 10,000/-.  

      The complainant is at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (   P. K. Chatterjee )                                                         

  Member,  C.D.R.F.,Howrah.