Date of Filing             :    08  October, 2021

Date of Judgement     :    30 January, 2023

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when the complainant, Mrs. Manika Bhowmick, on behalf of the complainants above named, filed a complaint under Section 35 of the Consumer Protection Act, 2019, (herein after called the said Act) against 1) M/s. Amrapali Hirise Pvt. Ltd., 2) Sri Malay Bose, (herein after called the Opposite Parties or O. Ps.) and 3. Mr. Soumadeep Basu Chowdhury, being the Proforma O. P., alleging deficiency in service occurred by the Opposite Parties.

            The brief statement of the complaint is that 1) Sri Sushanta Bhowmick (when alive), 2) Smt. Manika Bhowmick, 3) Smt. Sabita Roy Chowdhury, 4) Smt. Dipali Basu Chowdhury, 5) Smt. Renu Ghosh and 6) smt. Niu Sen, being the then owners of 3 Cottahs 11 Chittacks landed property  along with a two storied building therein lying and situated at Municipal Holding No. 35/6/64, Bijoygarh, District South 24 Paraganas, entered into a Development Agreement with the Opposite Party No. 1, represented by O. P. 2, on 7^th January, 2013 which was registered at the ADSR, Alipore.  The owners also executed a registered Power of Attorney in favour of the O. Ps. for construction of a multi storied building at that premises.  According to this development agreement Sri Sushanta Bhowmick was allotted a self contained flat of covered area 1350 sq. ft. and a self contained flat of area 900 sq. ft. was allotted to Smt. Manika Bhowmick as Owners Allocation.  It was also agreed that the O. Ps. would give Rs.55,00,000/- to the owners as non-refundable consideration money in such a manner that Sushanta Bhowmick would receive Rs.30,00,000/-, Nilu Sen Rs. 3,00,000/-, Manika Bhowmick Rs.20,00,000/-, Sabita Roy (Chowdhury has been omitted in the complaint) Rs.50,000/-, Dipali Basu Chowdhury Rs.1,00,000/- and Renu Ghosh would receive Rs.50,000/-.  It is stated in the complaint that the O. Ps. have paid only Rs.21,00,000/- out of agreed amount of Rs.55,00,000/- and only physical possession of the above mentioned flats were given.  When requested, O. Ps. stated on several occasions about their inability to pay the rest consideration amount and requested the owners to receive interest on the rest amount till March 2021.  O. Ps. started to pay interests to Sushanta Bhowmick and Manika Bhowmick, but they stopped paying interests after September, 2019.  After the death of Sabita Roy Chowdhury her son Tuhin Roy Chowdhury became the legal heir of her property.  Soumadeep Basu Chowdhury became the legal heir of the property of his mother Dipali Basu Chowdhury after her demise.  Ultimately after the death of Sushanta Bhowmick the complainants named herein above become the legal heirs and inherited the aforesaid property and they are entitled to get the rest amount of the consideration, i.e. Rs.33,00,000/- from the O. Ps.  When the complainants have not received the rest amount of consideration, they sent a legal notice on 07.07.2021 to the O. Ps. demanding the unpaid amount together with completion certificate and possession letters in respect of the allotted flats. But the O. Ps. did not respond to their demands and consequently the complainants filed this complaint before this Commission praying to direct the O. Ps. for payment of Rs.33,00,000/-, completion certificate and possession letters, together with a compensation of Rs.6,60,000/-, litigation cost and others.

            After receiving the complaint this Commission considered it maintainable for which notices were served to the O. Ps. Repeated opportunities were given, but none of the O. Ps. appeared before this Commission to contest the case and ultimately the case was proceeded ex parte.  Complaints then submitted Affidavit-In-Chief and finally argument was heard. Complainants filed the unsigned Brief Notes of Argument and this Commission comes to deliver Final Order/Judgement.

            We are now in a juncture to put forward the decision on this case.  But before delivering decision on this case we have to consider the following questions:

            1.  Whether the complainants can be treated as Consumers in this case?

            2.  Whether any deficiency in service, hired by the complainants, has been occurred from the

                  part of the O. Ps.?   And

            3.  Whether the complainants are entitled? to get relief as prayed for?

            Let us take these points one by one to come to a final decision.

DECISION WITH REASONS

            1.  At first we take the statement of the complaint which is inconsistent and lack of proper presentation. It is stated in the complaint that “Sri Sushanta Bhowmick (when alive), Manika Bhowmick, Sabita Roy Chowdhury, Dipali Basu Chowdhury, Renu Ghosh and Niu Sen”, the owners of the land, entered into a Development Agreement with the opposite parties on 7^th January, 2013 for construction of a multi-storied (G+4, as stated in the Development Agreement) building at the premises at 35/6/64, Bijoygarh, District South 24 Paraganas.  Here O. P. – 1 is the developing company and O. P. – 2 is its Director. It is also stated that Sri Tuhin Roy Chowdhury became the legal heir after the death of his mother Sabita Roy Chowdhury and Sri Soumadeep Basu Chowdhury became the legal heir after the death of his mother, Dipali Basu Chowdhury. But even a single word has not been used to state whether Sushanta Bhowmick was married or not.  In Paragraph No. 12 of the complaint it is stated that: “That according to Hindu Succession act, complainants name above, being his legal heirs inherited the property of Sushanta Bhowmick and became the owner of the same.”  No statement has been found in the complaint when Sushanta Bhowmick died.  The legal heir of Dipali Basu Chowdhury has been excluded as the legal heir of the property of Sushanta Bhowmick and its reason is not given. Anywhere in the statement when Smt. Sabita Roy Chowdhury, Smt. Dipali Basu Chowdhury and Sri Sushanta Bhowmick have died has not been stated.  However, setting aside such discrepancies we may consider that the complainants above named are the consumers as the Complainant Nos. 1, 3 & 4 and the mother of Complainant No. 2 had entered into a Development Agreement with the O. Ps. hiring their service for developing their property by constructing a multi-storied building.  Be it mentioned here that the Proforma O. P., i.e. Sri Soumadeep Basu Chowdhury is the legal heir of the deceased Dipali Basu Chowdhury, who was also a party in the Development Agreement.  But it is not clear, as no statement has been made in the complaint, why he has been made the Proforma O. P.  So, in conclusion, we can easily come to the decision that the complainants, including the Proforma O. P., are the consumers to the O. Ps. as defined in Sec.2(7)(ii) of the C. P. Act, 2019.

            2.   Now we consider the point whether there is any deficiency in service has been occurred from the part of the O. Ps.  Let us take the Development Agreement made on 07.07.2013.  In this agreement we see that the O. Ps. have agreed to construct a G+4 building after obtaining a Sanctioned Plan from the concerned authority.  It is not stated in the agreement when the construction of the building will be completed.  However, the complainants got physical possession of the flats as settled in the agreement and they have no complaints about the allotted flats except for the formal possession letters and completion certificate which were not issued by the O. Ps.  It is a general principle that the O. Ps., being the developer constructing the building, ought to have issued Possession Letters to the owners in respect of their allotted flats.  As the building was constructed in accordance with the sanctioned building plan so Completion Certificate should have to be obtained from the concerned authority and its copy should have been handed over to the owners of flats.

            Now, we consider the payments to be made by the O. Ps. to the complainants as per settled development agreement.  According to the Development Agreement, O. Ps. would have to pay Rs.55,00,000/- as non refundable amount in consideration of the agreement.  In Clause 5.2 A of this Development agreement it is stated that at the time of execution of the agreement Rs. 3,00,000/- will be given to Nilu Sen, owner no. 6.  It is stated in Clause 5.2 B, that Rs. 22,00,000/- was to be paid to the owners after obtaining the sanctioned plan, out of which Rs. 15,00,000/- would be paid to Sushanta Bhowmick and Rs.7,00,000/- would be paid to Manika Bhowmick.  In Clause 5.2 C, it is stated that the rest amount of Rs.30,00,000/- was to be handed over before possession of the owners flats were given.

            But, in the complaint it is stated that only Rs,21,00,000/- was paid by the O. Ps. out of which Sushanta Bhowmick received Rs.17,00,000/-, Rs.3,00,000/-was received by Nilu Sen and Rs.1,00,000/- was received by Manika Bhowmick. So, the balance amount of Rs. 34,00,000/- was not paid by the O. Ps. But the complainants demanded Rs.33,00,000/-, which clearly states that Rs.1,00,000/- which Sri Soumadeep Basu Chowdhury, the legal heir of the deceased owner namely Dipali Basu Chowdhury, ought to have received, has been excluded as Sri Soumadeep Basu Chowdhury is presented as the Proforma O. P. in this case. Complainants have issued a demand notice through their Ld. Advocate on 07.07.2021 requesting the O. Ps. to pay the balance amount of Rs.33,00,000/- within seven days from receipt of the letter. But the O. Ps., as per the statement of the complaint, did not respond to their letter nor any payment was made.  As a result we can conclude that the O. Ps. failed to comply with the conditions stated in the agreement which surmounts to a ‘deficiency’, as per Sec. 2(11), in rendering proper ‘service’, as defined in Sec. 2(42) of the Act, to the complainants occurred from the part of the O. Ps.

3.  So, considering the two points discussed above, we can come to a decision that the

complainants are entitled to get some relief.  The O. Ps. are liable to issue Possession Letters in respect of the Flats to the respective owners/complainants along with Completion Certificate.  But in case of payment of balance consideration, to be made to the complainants by the O. P.s., we think the inheritance of the Proforma O. P. in the property of deceased owner, namely Sushanta Bhowmick, must be clearly defined before taking decision.  So, we are refraining from taking decision on payment of balance consideration. The complainants are entitled to get litigation cost of Rs.8,000/-.

Hence,

           it is

           ORDERED

            That the Complaint Case No. CC/519/2021 is allowed ex parte against O. P. Nos. 1 & 2 and no decision on Proforma O. P.

            The Opposite Parties 1 & 2 are directed to hand over Possession Letters in respect of the Flats allotted as Owners Allocation and Completion Certificate to the Complainants.  The O. Ps. are directed to pay Rs.8,000/- as Litigation Cost to the complainants. 

            These directions should be complied by the O. Ps. 1 & 2 within 45 days from the date of receipt of this order.

            The complainants have the liberty to file complaint afresh regarding payment of balance consideration with justified appropriation.