1. This case has been filed u/S. 35 of C.P. Act, 2019 by the complainant alleging deficiency in service and adopting unfair trade practice on the part of the opposite parties.

2. The complainant is the owner of the landed property measuring about 2 (two) Cottahs comprising in Mouza – Shyamnagar, J.L. No. 32/20, Khatian No. 189, R.S. Dag No. 1338/1543, 1338/1544, 1338/1545, 1338/1546 under P.S. – Lake Town (previous was Dum Dum), P.O. – Bangur Avenue, North 24 Parganas.

3. The opposite parties are developers. Opposite party no. 1 is a construction firm having its partners being opposite party nos. 2 and 3.

4. For the purpose of development and construction of a building, the complainant entered into a development agreement dated 21.03.2011 with opposite parties.

5. That the complainant in terms of the said development agreement dated 21.03.2011 vacated her property mentioned in the Schedule ‘A’ Property and handed over the same to the opposite parties. The opposite parties shifted the complainant along her family members at the separate rental place at Malancha Apartment, C/o Sonali Chowdhury, 418, Shyamnagar Road, 3^rd Floor, Flat No. 3C, Kolkata – 700055 on February, 2013 and it was agreed by the opposite parties to pay rent and shifting charges for the same.

6. That after sending several reminders to the opposite parties/developers, the opposite parties sanctioned the proposed building plan from South Dum Dum Municipality on 25.07.2015.

7. In terms of the development agreement Article VII 7.1, the opposite parties shall complete the owner’s allocation mentioned in the Second Schedule of the agreement within 18 months from the date of obtaining sanctioned plan. If the developer fails to complete the construction, the further period of 6 months shall be extended.

8. It is alleged by the complainant that without his consent, the developer amalgamated an adjacent plot with his property and constructed the building. Thereafter handed over one flat measuring 850 Sq.ft. and another flat measuring about 800 Sq.ft. totalling 1650 Sq.ft. to the complainant violating the terms and conditions of the agreement dated 21.03.2011.

9. That the complainant repeatedly requested the opposite parties/developers to provide the car parking space/garage which is described in ‘B Schedule’ of the complaint in terms of the development agreement dated 21.03.2011 on the ground floor of the said building. But  inspite of several requests and reminders to the opposite parties did not pay any heed to it.

10. It is alleged by the complainant that for such act of the opposite parties, she suffered immense mental agony apart from harassment.  Finding no other alternative, the complainant filed the case.

11. Inspite of serve of notices, the opposite parties deliberately not appeared in this case to contest the same. So, the case is heard ex-parte as against the opposite parties.

In order to prove the case, complainant filed affidavit in chief along with following documents :

1. Sale deed (original) marked Exhibit 1
2. Development agreement (original) marked Exhibit 2
3. General Power of Attorney (xerox) marked Exhibit 3
4. Sanctioned plan (xerox) marked Exhibit 4
5. Original General Power of Attorney dated 11.03.2022 marked Exhibit 5

Points for decision

1. Is the complainant a consumer in terms of the Consumer Protection Act, 2019?
2. Has the complainant any cause of action to file the case?
3. Are the opposite parties liable for deficiency in service?
4. Is the complainant entitled to get relief as prayed for?

Decisions with reasons

Point nos. 1 to 4

1. For the sake of brevity and convenience all the above mentioned points are taken up together for consideration and discussion. The Constituted Attorney of the complainant Shri Suman Pal filed the complaint case and also filed affidavit in chief.
2. It appears that the complainant has been able to prove her case by unchallenged and unrebutted of her constituted attorney Shri Suman Pal. The deed of sale (Exhibit 1) reveals that the complainant is the owner of the suit property. Exhibit 2 reveals that she enters into an agreement with the opposite parties for development and on his construction of a building on her land mentioned in Schedule A of the complainant. According to the terms of Exhibit 2, the opposite parties are liable to hand over two flats on the first floor of the building which each measuring about 1000 Sq.ft. Super Built Up area along with a car parking space of 200 Sq.ft. Super Built Up area on the ground floor of the building. Exhibit 4 sanctioned plan of the building and Exhibit 5 is the General Power of Attorney dated 11.03.2022 executed by the complainant in favour of Shri Suman Pal.
3. Constituted attorney Shri Suman Pal by his unchallenged and unrebutted evidence satisfactorily proved that the opposite parties handed over two flats on the first floor to the complainant measuring about 850 Sq.ft. and 800 Sq.ft. super built up area totalling 1650 Sq.ft. (approx) instead of 2000 Sq.ft. That apart, the opposite parties have not handed over the car parking space measuring about 200 Sq.ft. super built up area on the ground floor to the complainant till date. According to the complainant, such act of the opposite parties is absolutely deficiency in providing service to the complainant which cause mental agony and harassment too.
4. Therefore, all the points mentioned above are decided in favour of the complainant.

5. Thus the complainant succeeds.

            Hence, it is ordered that the complaint case be and the same is allowed ex-parte against both the opposite parties with cost.

Ordered

The Opposite Parties are directed to hand over a flat measuring about 350 Sq.ft. super built up area in the same building and a garage/car parking space measuring about 200 Sq.ft. super built up area on the ground floor of the building within 1(one) month from the date hereof i/d the opposite parties shall pay @ 4,000/- per Sq.ft. as valued of deficit 350 Sq.ft. i.e. Rs. 4,000/-  X  350  =  Rs. 14,00,000/- (Rupees fourteen lakh) only along with 9% simple interest from the date of filing of the case till actual payment.

1. The Opposite parties are directed to pay a sum of Rs. 1,00,000/- as compensation to the complainant within 30 days from the date hereof i/d shall be liable to pay simple interest @ 9% per annum till actual date of payment.

2. The Opposite Parties are further directed to pay Rs. 60,000/- as litigation cost within 30 days till actual date of payment.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

 [HON'BLE MRS. Firoza Khatoon]
PRESIDENT