ADVOCATE FOR THE COMPLAINANT – KRISHNENDU BERA
ADVOCATES FOR THE OPPOSITE PARTIES – AYAN PAL, F/1763/2009,
H. BRAHMACHARI, GANESH CH. SAHA
DATE OF FILING – 25.08.2020
JUDGEMENT
Date – 20.01.2022
SRI SWADES RANJAN RAY
President
After receiving summon Opposite Parties appeared and filed Written Version and Questionnaire. Thereafter Opposite Parties remained absent without any step. As a result, this complaint case is disposed of on merit.
Facts of this case, in short, is that the Complainant entered into a development agreement dated 26.05.2017 with the Opposite Parties and the said development agreement was duly registered as per Registration Act. As per Development Agreement Complainant being the owner of the land will entitle 750 sq. ft. (inclusive super built up area) on the first floor of the building together with proportionate share in land and other facilities along with ₹7,00,000/- (Rupees Seven lakh only).
At the time of registration of development agreement, Opposite Parties paid sum of ₹1,00,000/- (Rupees One lakh only). Thereafter Opposite Parties paid ₹50,000/- (Rupees Fifty thousand only) at the time of delivery of possession of the premises. Though as per agreement, Opposite Party would be paid ₹1,00,000/- at the time of delivery of possession of the said premises. Thereafter Opposite Party would be paid ₹3,00,000/- on completion of ground floor, but Opposite Party paid only ₹75,000/- (Rupees Seventy Five only). Thereafter, as per development agreement opposite Party would be paid ₹2,00,000/- on completion of first floor but Opposite Party paid ₹50,000/- (Rupees Fifty thousand) only i.e. Opposite Parties made payment of ₹3,25,000/- (Rupees Three lakh Twenty Five thousand only) out of ₹7,00,000/- (Rupees Seven lakh) only.
That the Opposite Party (Developer) constructed the first floor of the building and hand over the possession of the first floor in favour of Complainant. But Developer did not give sanction plan from K.M.C. and did not make payment of remaining amount of ₹3,75,000/- (Rupees Three lakh Seventy Five thousand only) in spite of several reminders and Opposite Party (Developer) did not complete the internal work as per Development Agreement dated 26.05.2017.
Hence, this complaint case,
In Written Version Opposite Parties are denied all the material allegations made against them and stated that as per development agreement, Opposite Parties constructed the first floor and Complainant take possession of first floor and second floor which was not regularize. Allegation of violation of terms has not correct at all.
That the Opposite Parties are handed over the possession of first floor on 30.09.2018, and the Complainant has cause of action to file this case. The claim of ₹3,75,000/- (Rupees Three lakh Seventy Five thousand only) made by the Complainant, has no basis and this complaint case is liable to be dismissed.
Points for decision
- Whether Complainant has any cause of action to file this case or not?
- Whether there is any deficiency of service on the part of Opposite Parties or not?
- Whether Complainant will entitle to get any relief / reliefs as prayed for or not?
Decision with reason
All these points are taken up together for sake of convenience and brevity.
I have carefully perused the petition of complaint, Written Version, Affidavit-in-Chief, reply of Questionnaire of Complainant and the Opposite Parties, wherein I do not find any document which reflects that the Opposite Parties were made payment of ₹3,25,000/- as per Development Agreement. But as per Registered Development Agreement, Opposite Parties would have to pay ₹7,00,000/- in different stage of construction. As per Written Version of Opposite Parties, it reflects that Opposite Parties were completed the construction of first floor and also hand over the possession to the Complainant. But there is no document before this Commission, so that the Commission presumed that Opposite Parties paid the rest amount i.e. ₹3,75,000/-. As the Opposite Parties were failed to comply the terms of the agreement, so in my view, there is a deficiency of service on the part of Opposite Parties.
At the time of argument Ld. Advocate submits and refers the petition of complaint that the Opposite Parties did not hand over the completion certificate and sanction plan of the first floor. A xerox copy of plan has been submitted at the time of argument which is the revised plan of earlier sanction plan regarding to repair work of the ground floor.
Ld. Advocate further submits that Opposite Parties were constructed the first floor without any sanction plan from the K.M.C. Hence, in my view, Complainant will entitle to get relief as prayed for.
Hence, all the points disposed accordingly.
In the result, this complaint case succeeds.
Court Fee paid correct.
Hence, it is
O R D E R E D
that the Complaint Case No. 101/2020 be and the same is disposed of on contest on merit against the Opposite Parties.
Opposite Parties are directed jointly and severally to make payment of ₹3,75,000/- (Rupees Three lakh Seventy Five thousand only) within two (2) months from the date of this order.
Opposite Parties are directed jointly and severally to make payment of ₹15,000/- (Rupees Fifteen Thousand only) for mental pain and agony and litigation cost of ₹10,000/- (Rupees ten Thousand only) in favour of Complainant within 2 (Two) months from the date of this order.
Liberty given to the Complainant to file Execution Case for realization of the above mentioned amount in case of failure to make payment by the Opposite Parties within schedule time.
Hence, this complaint case is disposed of accordingly.
Let a copy of this judgement be handed over to all the parties at free of cost.
I agree
