Date of filing : 25.09.2018

Judgment : Dt.13.02.2020

Mrs. Sashi Kala Basu, Hon’ble President

            This petition of complaint is filed under section 12 of C.P.Act, 1986 by Subal Malakar alleging deficiency in service on the part of the opposite party (referred as OP hereinafter) namely M/s Balaji represented by its proprietor Sri Sanjay Aich.

            Case of the Complainant, in short, is that he is the owner of the land measuring 4 cottahs more or less appertaining to C.S.Dag No.161, Khatian No.87, Mouza-Haridevpur corresponding to Municipal premises No.334/6, Mahatma Gandhi Road. With a view to raise a new building upon the said premises, Complainant entered into a development agreement with the OP on 21.5.2013, which was also registered. A power of attorney was also executed in favour of the OP being represented by its proprietor namely Sanjoy Aich on 21.5.2013. OP obtained a sanctioned building plan from the K.M.C. As per the terms of the development agreement, it was agreed that the owner shall get 50% out of the constructed area which will be distributed firstly on the 2^nd floor and the balance will be provided at the 3^rd floor of the proposed building as per sanctioned building plan plus car parking space and proportionate space on the roof on the back of the building. It was also stipulated since the building will be completed after obtaining the completion certificate the developer shall give written notice to the owner for taking possession of the owner’s allocation. The developer was to complete the construction of the building within 24 months from the date of sanction of the building plan. But the developer/OP has not completed the construction of the building and has not handed over the possession of the owner’s allocation; neither he has handed over the completion certificate. The Complainant has requested OP on several occasions to perform his part of contract and complete the building construction but all his requests went in vain. A notice was also sent by the Complainant dt.8.5.2018 through his Ld. Advocate to the OP. But, OP paid no heed. So, ultimately the present complaint has been filed praying for directing the OP to complete the construction of the building and to handover possession of the owner’s allocation and to handover the completion certificate, the copy of the sanctioned building plan and to pay the litigation cost of Rs.50,000/-.

            Complainant has annexed with the complaint copy of the development agreement, copy of the registered power of attorney and copy of the notice sent by the Complainant dt.8.5.2018 through his Ld. Advocate.

            On perusal of the record, it appears that notice was sent to the OP. But, in spite of service OP did not take any step and thus the case was directed to be proceeded ex-parte.

            During the course of the evidence, Complainant filed the affidavit-in-chief and ultimately argument has been advanced. Brief notes of argument is also filed by the Complainant.

            So, the only point requires determination is whether the Complainant is entitled to the relief as prayed for.

            Decision with reasons

In support of his claim, Complainant has filed copy of the development agreement dt.21.5.2013 entered into between the Complainant and the OP, wherefrom it appears that OP agreed to complete the construction of the building on the basis of the sanctioned building plan within 24 months from the date of sanction of the building plan. Copy of the general power of attorney has also been filed, which appears to have been executed by the Complainant in favour of the OP on 21.5.2013. A copy of the sanctioned building plan has been filed being permit No.2013130445 dt.11.1.2014. Sanctioned building plan is also signed by the proprietor of the OP firm namely Sanjoy Aich being constituted attorney of the Complainant. So, from the said sanctioned building plan, it is apparent that the plan was sanctioned consequent to the development agreement entered into between the parties to this case. But, it is claimed by the Complainant that he h as not been handed over the owners allocation as per the development agreement dt.21.5.2013. On consideration of the terms and conditions as mentioned in the development agreement and in view of the discussion as highlighted above, as before this Forum, there is absolutely no contrary material to counter or rebut the claim of Complainant; Complainant is entitled to the owner’s allocation as specified in the development agreement along with the completion certificate.

            Hence

                           ordered

            CC/572/2018 is allowed ex-parte. OP is directed to complete the construction of the building and to handover the possession of the owner’s allocation as per development agreement dt.21.5.2013 within four months from the date of this order. He is also directed to handover the completion certificate within aforesaid period and further to pay litigation cost of Rs.10,000/-.