Date of Filing: 12/09/2022
Date of Judgment : 18/11/2024
Sri Manish Deb, Hon’ble Member
Fact of the case is that complainant are joint owners of all that piece and parcel of homestead land measuring about 1 cottah 08 chittaks together with building thereon lying and situated in E.P.No.142(S.P.4021) in C.S.Plot No.283(P) of Mouza-Garfa, J.L.No.19, P.S. Kasba , now Garfa in the District of South 24 Parganas being KMC Premises No.16, Viveknagar Colony, Block 2 & 3, P.O. Santoshpur, Kolkata-700075, the complainant entered into an agreement for development of their property by raising multistoried building with the opposite party developer on 10.08.2016, a registered power of attorney in favour of the opposite party also Executed on 10.08.2016 in favour of the OP.
That it has been clearly and unambiguously mentioned in the said development agreement dated 10.08.2016 that the complainant would get as owners allocation entire ground floor and 50% of flat area on second floor (front North East West side) of the proposed building, in addition to that the developer has to pay Rs.2,30,000/- to the owners, the complainant has received Rs.1,00,000/- at the time of execution of development agreement and registration of power of attorney respectively leaving Rs.1,30,000/- due to the complainant by opposite party and the balance amount of consideration of Rs.1,30,000/- will be paid at the time of handing over possession of the allocation of the owner.
That opposite party/developer thereafter obtained a straight three storied building plan on 02.04.2018 and constructed a building accordingly.
That the opposite party/developer delivered the entire ground floor of the building to the complainant as part of owner’s allocation on 01.03.2019.
But in spite of repeated request of the complainants the opposite party/developer is reluctant to deliver the balance owner’s allocation in terms of the development agreement dated 10.08.2016 i.e. possession of 50% of floor area on the second floor (front North East West Side) together with balance amount of cash consideration of Rs.1,30,000/- and furnish copy of completion certificate.
That subsequently the complainant came to know that the opposite party/developer have sold out the entire second floor including the owners allocation i.e. the 50% of the floor area of second floor on 17.04.2019 to third party.
That complainants obtain the certified copy of the above deed of conveyance dated 17.04.2019 on 23.09.2021 which reveals that the opposite party sold the entire second floor without knowledge and consent of the complainants for and at a price of Rs.21,45,000/-.
That the complainants thereafter contacted with the opposite party/developer and questioned about the sale of the entire second floor without knowledge and consent of the complainants , then Opposite party requested the complainant not to initiate any legal action against him and assured the complainant to pay the 50% sale proceeds of the second floor flat to the complainant and asked to bear with some time, but OP has taken no steps or initiatives to comply with his promises.
On lapse of time the complainant sent a letter to the opposite party on 14.07.2022 requesting him to discharge his obligation as developer in terms of development agreement dated 10.08.2016 alternatively demanding payment of 50% of the sale price of the second floor i.e. Rs.10,72,500/- together with balance amount of cash consideration of Rs.1,30,000/- and completion certificate of the building.
Finding no other alternate complainant initiated this complain before this commission.
The complainant has come before the this Commission for redressal . the complainant as owners have performed their obligation by paying service on their part but OPs failed and neglected to render their services by delivery of complete owners allocation and Balance agreed money as mentioned in the development agreement and complaint petition.
Finding no other alternate complainant initiated this complain before this commission.
The property situated in E.P.No.142(S.P.4021) in C.S. Plot No.283(P) of Mouza-Garfa, J.L.No.19, P.S. Kasba now Garfa in the District of South 24 Parganas being KMC Premises No.16, Viveknagar Colony, Block 2 & 3, P.O. Santoshpur, Kolkata-700075 within the territorial jurisdiction of the this Commission.
POINTS FOR DECISION are
- Whether the complainant fall in the category of the “Consumer” under Consumer Protection Act, 2019.
- Whether the complainant is within limitation under C.P.Act,2019.
- Whether the commission has the jurisdiction to decide the present complainant.
- Is the case is maintainable or not.
- Is the complainant is entitled to get relief as prayed for.
OBSERVATION
The complainant fall in the category of the “consumer” under C.P. Act, 2019.
The complaint is filled within two years from the date on which the cause of action has arisen.
The main question for consideration before us is whether the opposite parties is deficient by not completing the payment of 50% of the sale price of the second floor i.e. Rs.10,72,500/- together with balance amount of cash consideration of Rs.1,30,000/- and completion certificate of the building.
Our view is that the opposite parties are liable in deficiency in service and unfair trade practice as alleged as the complainant.
And we considered that entitlement of getting relief sought by the complainant is also affirmative.
The complainant has submitted his evidence, brief note of argument in the case.
The opposite party/developer did not delivered the balance owner’s allocation in terms of the development agreement i.e possession of 50% of floor area on the second floor (front North East West Side) together with balance amount of cash consideration of Rs.1,30,000/- and furnish copy of completion certificate.
WHEREAS the opposite party/developer have sold out the entire second floor including the owners allocation i.e. the 50% of the floor area of second floor on 17.04.2019 to third party without knowledge and consent of the complainants for and at a price of Rs.21,45,000/-.
That the complainants thereafter contacted with the opposite party/developer and questioned about the sale of the entire second floor without knowledge and consent of the complainants , then Opposite party requested the complainant not to initiate any legal action against him and assured the complainant to pay the 50% sale proceeds of the second floor flat to the complainant and asked to bear with some time, but OP has taken no steps or initiatives to comply with his promises.
The complainant sent a letter to the opposite party on 14.07.2022 requesting him to discharge his obligation as developer in terms of development agreement dated 10.08.2016 alternatively demanding payment of 50% of the sale price of the second floor i.e. Rs.10,72,500/- together with balance amount of cash consideration of Rs.1,30,000/- and completion certificate of the building.
That the acts of the opposite party in respect of selling out the owners allocation at second floor, that is 50% of the floor area at second floor without knowledge and consent of the complainant is sufficient to constitute unfair trade practice.
The opposite party did not appeared in the instant case for filing their/its written version in spite of good service of notices.
On behalf of the complainant has adduced evidence but the said evidence was unchallenged.
No one has challenged the complaint petition as well as affidavit in evidence of the complainant therefore the statements made by the complainant as well as the documents tendered by the complainant are unchallenged and unchallenged evidence is deemed to be admitted.
The OP has not contested the case, as such the op did not filed any written version in the case, even the op did not submitted any reliable documents defend the complaint filed by the complainant.
We have applied our mind and meticulously gone through the materials on record. We find reasonable ground and proof there in support of complainants contention.
By all means we are of the opinion that op is liable in deficiency in service and unfair trade practice as alleged by the complainant even non appearing in the case and non filing of evidence by the OP is a clear cut proof of deficiency in service on the part of the OP, and there was an established fact of breach of contract as per the agreement so called.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief.
In our opinion, the complainant has succeeded in establishing his case and thereby entitled to get relief.
Hence it is
ORDERED
That the CC No.563 /2022 is allowed ex parte against OP with cost.
- Opposite Party is directed to pay balance amount of cash consideration for owners/ complainant allocation of Rs. 1,30,000/- and 50% of sale proceeds of the entire second floor of i.e Rs. 10,72,500/- with interest of Rs. @ 9% in (both case) from 17.04.2019 within 60 days from the date of this order.
- Opposite Party is directed to pay compensation for harassment, mental agony and other damage of Rs.1,50,000/- to the complainant within 60 days from the date of this order.
- Opposite Party is also directed to pay Rs.10,000/- towards cost of litigation to the complainant within 60 days.
- Opposite Party is directed to supply a copy of completion certificate of the building to the complainant within 60 days.
In the event of non compliance by the OPs, the complainant shall be at liberty to initiate necessary action as per law after expiry of the aforesaid period.
Dictated and corrected by
Member
