DATE OF FILING                    :     06-08-2014.

DATE OF S/R                            :      02-02-2015.

DATE OF FINAL ORDER      :     19-06-2015.

1.         Smt.Sarmistha De,

wife of Sri Subir De,

daughter of late Sushil Kumar De,

2.         Smt. Sangeeta  Ghosh,

widow of late Arun Ghosh,

daughter of late Sushil Kumar De,

residing at 40/3, Kashinath  Dutta  Road, P.S. Baranagar,

Kolkata 700 036. ….. ……..………….…………………...  COMPLAINANTS.

• Versus -

   

         1. M/S. Gupta Construction,

  a  partnership firm being represented by its

  partners viz. (i) Sri Vijay Kumar Gupta,

  ( ii ) Sri Raj Kumar  Gupta,

  both sons of  late Ramjanam  Gupta,

  having its place of business at 16/A/3, Dharmatala Road, P.S. Bally,

  District Howrah.

  PIN 711 201. ………………………………………………………. Opposite party.

   

  2.         Sri Samar Kumar Sett,

  son of late Sailendranath Sett,

  residing at 405, G.T. Road, P.O. & P.S. Bally,

  District Howrah,

  PIN 711 201. ……..………………………………………………………Proforma Opposite Party.

                                                P    R    E     S    E    N     T

             Hon’ble President  :   Shri  B. D.  Nanda,  M.A. ( double ), L.L.M., WBHJS.

                               Hon’ble Member      :      Smt. Jhumki Saha.

             Hon’ble Member : Shri A.K. Pathak,  L.l.b., ( Retired Railway Officer ).       

        F  I   N   A    L       O   R   D    E     R

1. The instant case was filed by complainants, namely,Smt. Sarmistha Dey and Smt. Sangita Ghosh U/S 12 of the C.P. Act, 1986 wherein the complainants have prayed for direction upon the o.p. no. 1 to handover the possession in respect of the schedule flat as per the development agreement dated 12.8.2002 vide Annexure ‘A’ and to pay compensation of Rs. 2 lac and litigation costs of Rs. 10,000/- as the o.p. no. 1 in violation of the terms of the agreement 12.8.2002 has been turning deaf ear to the complainants’ request for delivery of the possession of the flat.

    

2. It is the case of the complainants that an development agreement was entered between the father of the complainants, namely Sushil Kr. Sett, since deceased, and the proforma o.p. no. 2 on 12.8.2002 with o.p. no. 1 for constructing residential building on the Mokorari Mourashi Bastu land measuring about 10 cottahs with structures standing thereon appertaining to holding no. 405,G.T. Road, within Bally Municipality Ward no. 4 corresponding to dag no. 10146 and 10130 under khatian nos. 3903 and 3867, J.L. no. 14 at mouja Bally, P.S. Bally, Howrah. And as per the development agreement dated 12.8.2002 vide Annexure ‘A’, the complainants being daughters of late Sushil Kr. Sett are entitled to 2700 sq. ft. flat in terms of schedule A, B & C, being the 50% of the total owner allocation of 5400 sq. ft. After the death of Sushil Kr. Sett, the father of the complainants, complainants repeatedly requested the o.p. no. 1 to deliver possession of their share of constructed area, being 2700 sq. ft. out of 5400 sq. ft.But o.ps. remained totally silent on the issue. Ultimately on 11.07.2014 complainants sent a lawyer’s notice to o.p. no. 1 which was received by the o.p. no. 1 on 12.7.2014. Still o.p. no. 1 paid no heed to that. Being frustrated and finding no other alternative complainants filed this instant case.

    

3. In spite of proper service of notice upon the o.p. no. 1, they did not appear and file written versionbut proforma o.p. no. 2 filed written version. So the matter was heard on contest against proforma o.p. no. 2 and ex parte against o.p. no. 1.

4. Two points  arose for determination :

   i)          Is there any deficiency in service on the part of the O.P. no. 1 ?

2. Whether the complainants areentitled to get any relief as prayed for ?

DECISION  WITH   REASONS      :

5. Both the points aretaken up together for consideration. It appears from the Annexure ‘A’development agreement dated 12.8.2002 that the father of the complainants namely Sushil Kr. Sett, since deceased, entered into an development agreement with respect to the schedule premises with the o.p. no. 1 along with proforma o.p. no. 2 who is the co-owner of the schedule premises. Accordingly after the demise of the saidSushil Kr. Sett, the complainants becamethe claimants with respect to theconstructed area of 2700 sq. ft. at the schedule premises. Although proforma o.p. no. 2 in his written version has annexed the copy of petition of T.S. No. 84 of 2011 pending before ld. Civil Judge ( Sr. Division ), Howrah, and has taken a plea that a civil suit is pending. Here we take a pause. As per the Annexure A of the complaint petition i.e., the development agreement, the complainants who are the daughters of late Sushil Kr. Sett are very well the consumers of o.p. no. 1 being the service provider. O.p. no. 1 by not delivering the possession of 2700 sq. ft.constructed at the schedule premises has been neglecting to discharge its duty towards the complainants. Complainants have a legitimate claim over 2700 sq. ft. and o.p. no. 1 must deliver the possession to the complainants. But o.p. no. 1  did not care to deliver  the same in favour of the complainants since long which caused  tremendous mental agony for the complainants. It has also caused severe financial loss to the complainants, too. Without any fault on  the part of the  complainants, they  have been harassed by the o.p. no. 1  like any thing which should not be perpetuated any more. Moreover, the o.p. no. 1 has not cared to appear before the Forum even after receiving summons. No W/V has been filed by them which clearly shows that they have nothing to put forward in their favour. And the complaint petition remains unchallenged and uncontroverted. And we have no difficulty to believe the unchallenged testimony of the complainant.  O.p. no. 1  has  miserably failed   to keep promise which certainly amounts to deficiency in  service coupled with unfair trade practice  on their  part which should not be allowed to be perpetuated for an indefinite period.   And we are of the candid opinion that it is a fit case where the prayers of the complainants  should be allowed. Points under consideration are accordingly decided.

           Hence,                                    

O     R     D      E      R      E        D

      That the C. C. Case No. 435 of 2014 ( HDF 435 of 2014 )  be and the same is   allowed ex parte  with  costs as   against  the O.P. no. 1 and dismissed against proforma o.p. no. 2 without costs.   

      The O.P. no. 1  be  directed to deliver the possession of 2700 sq. ft. constructed area to  the complainants as described in scheduled ‘C’ of the complaint petition in favour of the complainants   within 60 days from the date of this order i.d., Rs. 50/- per day shall be imposed upon the o.p. no. 1 till actual delivery of the possession.

      The o.p. no. 1  is further directed to   pay   Rs. 10,000/- as compensation to the complainants  for causing mental pain and prolonged harassment together with litigation costs  of Rs. 2,000/- within 60 days from the date of this order i.d., @  9% interest shall be imposed upon the o.p. no. 1 till actual payment.  

      The complainants are  at liberty to put the decree into execution after expiry of the appeal period.

      Supply the copies of the order to the parties, as per rule.

DICTATED  &    CORRECTED

BY   ME.  

  (    Jhumki Saha)                                              

  Member, C.D.R.F., Howrah.