Date of filling: 28/07/2021

Date of Judgment: 06/03/2023

Mrs. Ashoka Guha Roy (Bera), Hon’ble Member                                                  

The instant complaint case has been filed U/S 35 of CP Act 2019 by the complainants namely- 1)Smt.Rina Ghosh & 2) Rituparna Ghosh against the opposite parties namely 1)M/S Balaji Construction 2) Rajkumar Guha (partner) 3) Sri Debjit Pandey being the partners of the said construction firm alleging inter-alia for non delivery of possession of a flat along with car parking.

The case revolves round the non delivery of possession  of a owner's allocation by the developer. That the opposite parties entered into a registered Development Agreement dated 13.03.2014 with the land owners namely 1)Sri Shibrata Ghosh 2) Smt.Rina Ghosh 3) Master Rituparna Ghosh(being represented through his mother and legal guardian Rina Ghosh) 4) Smt. Tapati Ghosh 5) Smt.Rina Chanda for development of a plot of land by constructing a G+ four storied building after demolishing the old structure in accordance with a building plan to be sanctioned by the K.M.C. As per the terms & condition of the said Development Agreement after the completion of the building the above named complainants 1) Rina Ghosh 2) Rituparna Ghosh were jointly supposed to be handed over their allocated portions comprising of a flat measuring 400 sq. ft (approx) built up area of southern side of Second floor along with 125 sq. ft. (approx) built up area of car parking space on the ground floor. It was also agreed in the said Development Agreement that the occupiers of the premises will be paid shifting charges at the rate of ₹3000/- per month by the developers for constructions till the handing over of the possession of flats to the owners. It was also agreed that the developer will be liable to pay damages charge of ₹10,000 if he fails to deliver the owner’s allocation within stipulated period. Although the complainant vacated the premises, the developer neither delivered the possessions nor paid the shifting charges as a result of which the complainant and his son have landed homeless.  The condition of the complainant at present is like a stranger dislodged from the orbit and staying on mercy of her parents and relatives. Whereas the other owners have been handed over their allocated portion of the newly constructed building and also, the developers sold out their portion to the intending purchasers.

 The complainants made several requests for delivery of possessions but the opposite parties/ developers avoided on one pretext or the other and turned a deaf ear to such request. Finding no other alternative the complainant has approached this Commission for redressal of her grievances.

On the basis of said facts, the instant complaint was admitted and notices were served upon the Ops. However, the Ops did not appear to contest the case. So the case was heard exparte.

Decision with reasons

Complainant filed a petition duly sworn on affidavit for treating their complaint as their Affidavit -in-chief . Complainant also filed Brief Notes Of Argument.

 In order to substantiate the claim of the complainants they have filed photocopies of some documents like Development Agreement dtd 13.3.2014, Development Power of Attorney, Adhar card of the complainants, Lawyer’s Notice dtd. 17.1.2018 , dtd.2.2.2018 & dtd.12.4.2018, and notice dtd.232.2021, death certificate of Subrata Ghosh, Deed of Partnership dtd 30.10.2013 made among the partners of the Developer Balaji Construction.

Upon hearing the Ld. Advocate appearing for the complainants and on perusal of the materials on record it reveals that the complainants entered into a development agreement to avail the service of the Ops in lieu of the land belonging to their share which they inherited by way of succession. However the Ops failed to honour the terms of the agreement aggrieved by such conduct of the OPs the complaints have approached before this Commission.

Our view is fortified by the dicta of the Hon’ble Supreme Court in Nerne Construction P. Ltd. Etc, vs Union of India and ors, Etc. reported in AIR 2012 SC 2369.

Wherein it was held that when a person applies for the allotment of a building or site or for a flat to be constructed by the Development Authority and enters into an Agreement with the Developer, or the contractor, the nature of transaction is covered by the expression “Service” of any description. Housing construction or building activity carried by private or statutory body constitutes “Services” within the ambit of section 2(1)(o) of the Act and any deficiency or defect in such service would make it accountable before the competent consumer Forum at the instance of the consumer.

In the present case, the Ops neither delivered khas possession of the flat and the car parking to the complainants which was being earmarked for her deceased husband within the stipulated period nor paid the shifting charges@Rs3000/-p.m. during the period of construction from the date of taking possession of the said land by the developers for construction till the date of handing over possession as per clause contained in the Development Agreement. It was also specifically mentioned in the said Development Agreement under Article 13 that if the developer fails to deliver the owner’s allocation within the stipulated period in that case, the developer will be liable to pay damages charge of Rs. 10000/- per month for the delayed period. It is also submitted by the Ld. Advocate appearing for the complainant that the complainant is like a stranger dislodged from the orbit and due to such nefarious activities of the opposite parties, landed the complainant and her son in homeless condition. The plea raised by the OPs through their letter dated 02-02-2018 for obtaining permission regarding guardianship hold no water since the minor child of the complainant became major by that time. The aadhaar card reveals that the minor child has already attained the age of majority. More so, the developer though delivered possession to all the co-owners of the land and keeping the allocated portion of the complainant under lock and key and without appearing before the commission. Since the opposite parties chose not to appear before the commission thus the statements of the complaint petition are irrefutable. In such a situation the commission has no alternative but to rely upon the statements of the complainant. The complainants’ repeated approach to the opposite party has yielded no fruitful result. For such conduct of the opposite parties, the complainant has suffered enough physical and mental stress. Since the OPs neither handed over possession of the subject flat and the car parking within the stipulated period and nor paid the shifting charges to the complainants as promised in the Development agreement hence the OPs are held liable for deficiency in service. The deficiency of service on the part of the OPs in rendering service to the complainant has been proved substantially. Thus the complainants are entitled to the reliefs claimed for.

Consequently, we are of the view that the complaint falls within the four corners of the jurisdiction of this commission to entertain case relating to deficiency in service on the part of the OPs.

Accordingly the case succeeds.

Hence,

            ORDERED

that the CC/322/2021 is allowed exparte. Opposite parties are directed to hand over khas possessions of the residential flat measuring about 400 sq. ft. super built up area on the second floor along with 125 sq. ft. car parking space on the ground floor within two months from the date in habitable condition.

             The OPS are further directed to issue possession letter at the time of handing over the possession and further directed to hand over copy of completion certificate to the complainant within aforesaid period of two months.

            Ops shall also pay compensation of Rs. 10,000/- for delay in handing over possession and a cost of Rs. 10,000/- as litigation cost within two months failing which the aforesaid amount shall carry interest @9% p.a. till the date of realisation.