Date of filing: 25/02/2021

Date of Judgment: 10/02/2023

Mrs. Sashi Kala Basu, Hon’ble President

 This complaint is filed by the complainant Jogamaya alias Jogomaya Basak under section 35 of the Consumer Protection Act 2019 against the opposite parties (referred as OPs hereinafter) namely M/S A R construction and developer represented by its partners namely 1) Asit Kumar Sarkar and    2) Prosenjit Sarkar alleging definitely in rendering of service by the OPs.

Complainant’s case in short is that a joint venture agreement dated 20.07.2017 was entered into between the complainant being owner and developer the Op herein to develop and construct a multi storied building on the land described in schedule “Ka” of the said agreement. As per terms & condition of the development agreement, stipulated period to complete the construction by the developer was within 18 months from the date of sanction of plan from  KMC. OP was to deliver the owner’s allocation before selling of developer’s allocation to the prospective buyers but the OP has not handed over the owner’s allocation as per development agreement. OPs have only delivered entire 2^nd floor flat on 03.08.2020 but have not delivered the rest of the owner’s allocation i.e. two numbers of one BHK flat measuring 350 sq. ft each. The present market value of said 1 BHK flat is Rs 11,55,000/- each. Since after delivery of 2^nd floor flat, OPs have stopped paying the shifting charges in respect of the temporary occupation of the complainant. So a legal notice was sent by the complainant through her Ld. Advocate on 08.1.2021 to deliver the possession of flats as per owner’s allocation but all in vein. Thus the present complaint is filed by the complainant praying for directing the OPs to deliver the two flats to the complainant as per development agreement and if failed to deliver the flats than to pay the present market value of the flats, to pay Rs 200/- per day as compensation, to pay shifting charge of Rs 5000/- per month from July 2020 and to pay litigation cost of Rs 7000/-.

                OPs have contested the case by filing the written version denying and disputing the allegations contending inter-alia that the development agreement dated 20.7.2017 duly registered on 25.07.2017 was entered between the parties to construct a four storied building assuming land measured 02 cottah and 8 chittaks as stated by the owner but later, on measurement it was found that the land was 02 cottah 09 sq ft. and thus a supplementary agreement dated 17.09.2017 registered on 25.09.2017 was entered into between the parties to raise a three storied building. Following the supplementary agreement owner’s allocation on 2^nd floor of 03 storied building has been delivered on 12.05.2019 through her son the constituted attorney  of the complainant. Complainant is not entitled to shifting charge as claimed after 12.05.2019. However on request of the complainant , OPs have paid Rs 6,500/- per month till August 2020. Constituted attorney of the complainant has received refundable amount of Rs 2,30,000/-and as such OPs are entitled to refund of Rs 3,08,000/- from the complainant. It is further contented that the complainant agreed to entire 2nd floor (top floor) of three storied building as owner’s allocation and further one flat measuring 350 sq ft super built up  area on the top of roof as desired subject to consideration of competent authority of Kolkata Municipal Corporation and its approval. Thus the OPs have prayed for dismissal of the case.

               During the course of trial, both parties filed their respective examination-in chief on affidavit followed by filing of questionnaire and reply thereto and ultimately both parties have filed brief notes of arguments and also advanced their respective arguments.

 Thus following points require to be determined:-

1. Whether there has been any deficiency in rendering of service on the part of the OPs?
2. Whether the complainant is entitled to the reliefs as prayed for?

Decision with Reason

At  the very outset it may be  pertinent to point out that this is an admitted fact  that even though  a development agreement dated 20.07.2017 was entered  into between the parties but due to shortage of land, supplementary agreement dated 18.09.2017 was entered into between the parties to construct a three storied building instead of four storied building as agreed in development agreement dated 20.07.2017. So for the purpose of adjudicating the dispute agitated in this case, the supplementary agreement dated 18.09.2017 is material to determine allocation of the respective parties  especially the complainant. Complainant has filed both the agreements and it is evident from the Supplementary agreement that “Kha schedule” dealing with owners allocation in the original development agreement dated 20.07.2017 has been modified stating one self contained flat in the roof/ open terrace of the building. So as per recital in page 03 of the supplementary agreement and original development agreement dt 20.07.2017 complainant’s allocation was entire second floor and 1 BHK flat at terrace or roof and not 2 no of 1 BHK flats as claimed by the complainant.

Admittedly entire second floor in the newly constructed three storied building has been handed over to the complainant. Though, complainant has stated in the complaint that after receiving the complainant’s letter, OPs partly complied the agreement and delivered only entire second floor but no specific date of handing over has been stated. Whereas, in the letter dated 08/07/2020 filed by the complainant which is sent by OP to complainant, is very categorical that the key of the entire second floor was handed over to the son of the complainant who is also her constituted attorney on 12/05/2019. So it is evident that the possession of the entire second floor towards owners allocation has been handed over on 12/05/2019. Complainant though has stated that after receiving the complainant’s letter, OP handed over the entire 2^nd floor but the said letter has not been filed for the reason best known to the complainant. So the date of handing over of the entire 2^nd floor being 03.08.2020 stated in the letter dated 09.11.2020 sent by the complainant in response to the letter of OP dated 08.07.2020 appears to be nothing but an afterthought. In such a situation we find no justification to allow the amount towards shifting charge as claimed by the complainant.

 Now coming to the claim of the complainant about not handing over the flat in the roof / open terrace, in this context it may be pointed out that it is an admitted fact that the supplementary agreement was entered into to construct a three storied building. OP has filed the plan of three storied building approved by the KMC. Said plan bears the signature of the complainant as owner. Plan does not have any provision of construction of any flat in the roof / open terrace. If that be so then apparently any agreement entered into between the parties to construct any flat in the roof or terrace of the building is illegal and in violation of the sanctioned plan. So the contract / agreement with regard to construction of flat in the roof being illegal and complainant herself being wrong doer cannot seek any relief for such wrongful act. An illegal contract cannot be enforced. Thus, in view of the discussions as highlighted above, since owners allocation of entire second floor has already been handed over, we find complainant is not entitled to any reliefs as prayed for.

 Before parting, it may be mentioned that in view of the discussions highlighted above that the complainant herself is a wrong doer and agreement with regard to flat in the roof / terrace is illegal, the decisions cited by the complainant in the BNA has no relevance in the given facts and situations of this case and thus not discussed.

Hence

                Ordered

CC/108/2021 is dismissed on contest.