Date of Filing :   26 November, 2021.

Date of Final Order    :   20 February,  2023.

Mr. Dhiraj Kumar Dey,   Hon’ble Member.

            The instant case comes forth when Sri Jayanta Mitra, on behalf of the above named Complainants, filed on 26^th November, 2021 a complaint U/S 35 of the Consumer Protection Act, 2019, hereinafter called the said Act, against M/s, Bhattcharjee Enterprise having it’s sole proprietor Sri Sanjib Bhattacharjee (herein after called as Opposite Party or O. P.) alleging deficiency in service on the part of the O. P.

The contents of the complaint petition is, in brief, that the above named complainants, in order to develop their property for better residential accommodation at their own premises being No. 6, Banerjee Para Road, Kolkata – 700 061 having mailing address 4/1, Banerjee Para Road, P. S. – Thakurpukur, Kolkata – 700 008, measuring 2 Cottah 13 Chittaks 2 sq. ft., entered into a Development Agreement with the O. P. as the Developer and subsequently executed a general power of attorney on 13/03/2013 in favour of the proprietor of the O. P. company.  It was decided through this development agreement that the developer/O. P. company would build a four-storied building as per building plan duly sanctioned by the KMC authority and the Owners’ allocation would be such that Sri Jayanta Mitra would get a flat at 2^nd floor and a 60 sq. ft. shop area, Sri Prasanta Mitra would get a flat at 3^rd floor and a 120 sq. ft. shop area and Smt. Mitun sen would get 60 sq. ft. shop area..  It was also decided through this agreement that Sri Jayanta Mitra would get Rs.60,000/- as non-refundable money from the developer.  The owners/ complainants were temporarily shifted to a rented place for construction purpose and the rent was being paid by the developer.  The developer/O. P. company obtained Sanctioned building plan from KMC authority on 06/11/2013.  It was decided that the construction of the building would be completed within 18 months from the date of obtaining sanctioned building plan, i. e. within May, 2015.  But the developer failed to complete the construction till filing this complaint.  Moreover, the developer stopped payment of rent from August, 2015 for the accommodation where the owners were temporarily shifted and in August, 2016 the developer shifted the owners/complainants to the incomplete flats in the building with a plea that they would be shifted to a new accommodation very soon.  But that never happened, for which a legal notice was sent to the developer on 11/05/2017 requesting the developer to complete the building in all respect.  The developer/O. P. company thereafter did some works in the building till November, 2017 but thereafter fled away from the unfinished project. In order to live in the unfinished flats, complainants did some arrangements on their own cost by installing main gate of their flats etc. Finally, the complainants filed this complaint praying to direct the O. P. to complete the unfinished works of the owners’ allocation and to obtain Occupancy Certificate from the KMC authority, to deliver possession of the owners’ allocation in complete habitable condition and to issue Possession Letter, to direct the O. P. pay Rs. 60,000/- to the Complainant No.–1/Sri Jayanta Mitra, to pay Rs. 5,00,000/- as compensation and Rs.50,000/- as litigation cost and such other orders as this Commission may think fit.

            Complainant filed copies of the Development Agreement, notice issued to the O. P. on 11/05/2017 and copy of cheque of Rs.60,000/- issued by the O. P.

            Admitting the complaint this Commission sent notice to the O. P. to attend this Commission and to contest the complaint but none appeared and the case proceeded ex parte.  Complaint then filed their Affidavit-In-Chief and thereafter filed brief notes of argument.  This Commission then comes to issue final order.

            Now, we have to consider the following points before concluding for final decision:

1.  Whether the complainants are consumers to the O. P. as defined in the Act?
2.  Whether the O. P.’s acts caused deficiency in rendering the promised service to the complainants?

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

Let us take these points one by one to come to a conclusion.

Decision with reasons

            1.   The material fact of the complaint states us that the Complainants, while in absolute possession of a land measuring 2 Cottah 13 Chittak 2 sq. ft. lying and situated at 6, Banerjee Para Road, having mailing address 4/1, Banerjee Para Road, P. S. – Thakurpukur, Kolkata – 700 061, entered into a Development Agreement on 13/03/2013 and executed a Power of Attorney in favour of the Opposite Party, namely M/s. Bhattacherjee Enterprise, represented by its sole proprietor Sri Sanjib Bhattacharjee. As per this agreement the O. P. company was permitted to construct a multi storied building on that premises and the Owners’ Allocation was determined as mentioned in this agreement.  So, the owners, here the complainants, have hired service in the form of housing construction from the O. P. company in lieu of their landed property.  Hence, as per Section 2(7)(ii) of the C. P. Act, 2019, owners/complainants are the Consumers to the O. P. company.

            2.         Now, we take a close look at the Development Agreement made on 13/03/2013.  The Complainant stated that the O. P. company had not handed over copy of the Power of Attorney to them.  However, in this agreement it is mentioned that the O. P. company would construct a multi storied building within 18 months from obtaining the building plan sanctioned by the KMC authority.  So, as per the statement of the complaint petition, the developer/O. P. company should have to complete the building within May, 2015 as the plan was sanctioned on 06/11/2013. But the O. P. company failed to complete the building till November, 2017 when the O. P. fled away from the project leaving the building in unfinished condition.  As the O. P. have not attend this Commission to counter the complaint so, there is no contrary material to counter or rebut the complaint.  Hence we can conclude that there is latches in rendering proper and promised service to the complainants by the O. P. thereby deficiency in rendering promised service has occurred from the part of the O. P. and the complainants have every right to get relief for such deficiency.

            3.  Now, it is established that complainants are entitled to get relief.  In this stage, when we go through the complaint petition and the annexure therein, we find that in owners allocation it was decided that the complainant No. 1/Owner No. 2, i. e. Sri Jayanta Mitra was entitled to get a flat at the 2^nd floor along with a covered space of are 120 sq, ft in the ground floor. He is also entitled to receive Rs.60,000/- as a non-refundable money and a Memo of Consideration was issued as a part of the Development Agreement that Rs.60,000/- was given to Sri Jayanta Mitra and he received it.  It this Memo it is not stated whether this amount was paid either in cash or in other form. But the complainants adduced a Cheque bearing No.362297 of State Bank of India, Parnashree Branch, issued by the O. P. company without putting any date on it to Sri Jayanta Mitra.  Now, the complainant prayed for payment of Rs.60,000/- by the O. P. to Sri Jayanta Mitra, from which we can conclude that the Cheque could not be realised. Moreover, the O. P. left the project leaving behind the unfinished building and the complainants are dwelling in their incomplete flats.  So, the alleged unfinished works should be completed by the O. P.  But the complainant failed to describe which works are left unfinished.  The complainant have not prayed for completion of the building, yet he claimed the Possession Letter as well as Occupancy Certificate which indirectly states us that he demanded completion of the building in  all respect and as  per the sanctioned plan.  We have noted that in the Schedule – C (Owners Allocation) of the Development Agreement the area of the two flats for the Complainant No. – 1, i. e. Sri Jayanta Mitra and the Complainant No. – 2, i. e. Sri Prasanta Mitra, has not been written in this agreement.

            So, considering all these discussions we are of the view that this Commission can direct the O. P. to complete the construction of the building according to the Development Agreement and in accordance with the sanctioned building plan.  The O. P. should hand over the owners’ allocation as per the agreement in habitable condition by completing the unfinished jobs and hand over possession letter along with copy of Occupancy Certificate issued by the KMC authority.  Moreover, the O. P. should pay a compensation to the tune of Rs.30,000/- for causing harassment and mental agony to the complainants and Rs.10,000.- as litigation cost.

Hence,

           it is

             ORDERED

            That the complaint Case being No. CC/576/2021  is allowed ex-parte.

            The Opposite Party is directed to complete the construction of the building and hand over Owners’ Allocation as per the Development Agreement dated 13/03/2013 in complete habitable condition and hand over possession letters in respect of their allotted portions along with copy of Occupancy Certificate to the complainants.  The O. P. is directed to pay 30,000/- as compensation and Rs.10,000/- as litigation cost to the complainants. The O. P. is also directed to pay Rs.60,000/- to the Complainant No. – 1 as stated in the development Agreement.

All these directions should be complied within 60 days from the date of this order.