Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Complaint Case No.374/2017

This case has been filed by the complainant against the OPs for passing direction to the OP to deliver possession  of remaining 88.91 sq. ft.  carpet area which has been  described  in the ‘B’ schedule property of the complaint petition alternatively to make payment  of the market value of the said area amounting to Rs. 2,67,000/- ( 3,26,550  as per Government Market Value) and also for passing direction to the OP to pay a sum of Rs. 5,40,000/-  and to pay a further sum of Rs. 5, 30, 500/-  and also  for payment of compensation  to the tune of Rs. 1,00,000/- for mental harassment  and agony and also for awarding litigation cost of Rs. 10,000/-

Fact  of this case

Complaint Case – The case of the complainant  which is deciphered  from the complaint petition in bird’s eye view  is that one residential flat measuring about 838.09 sq. ft carpet area at the 1^st  floor of G+3 building alongwith  undivided  proportionate share of the land situated at Holding No. 36, Kantapukur 3^rd Bye Lane, P.S. Bantra, Dist. Howrah which is  falling  within Ward No. 23 of Howrah Municipal Corporation  is the subject matter of this case and the complainants are co-sharer  of the entire property which has been described  above and the complainants  and 4 others  being owners of the aforesaid  property entered into a Development Agreement dtd. 26.03.2010 with OP and also executed a power of attorney  dtd. 26.03.2010  in favour  of the OP / Developer and as per Development Agreement  as well as Power of Attorney as well as sanction plan the said developer already  constructed  multi-storied building over the said property.  It is further stated that as per Clause No.  3 of the Development Agreement  dtd. 26.03.2010 the OPs are bound to allot a flat measuring about 927 sq. ft. carpet area at the South West corner of 1^st floor of the multi-storied building  which has been described  above in favour of the complainant  as per their share and the OP has already  given  possession  of the said flat measuring about 838.09 sq. ft.   carpet area instead of  927 sq. ft. carpet area at the first floor of the said building  which has been described  in the  “A” schedule property and a possession letter dtd. 08.07.2017  has also been issued  but in the said possession letter the OP has falsely and illegally mentioned the area of the flat as 996 sq. ft. carpet area instead of the measurement 838.09 sq. ft. as such the  complainant still now are entitled to get free  carpet area of 88.91 sq. ft.  which  has been described in the B schedule property.  It is alleged  that  as per terms of the Development Agreement dtd. 26.03.2010 the OP was bound to give possession of the suit flat in favour of the complainant  within 10 months from the date of sanction plan, failing  which the Op was duty bound  to give Rs. 10,000/- per month  as compensation to the complainant  and the OP only on 08.07.2017 has given possession of the suit flat in favour of the complainant and as such the complainants are entitled  to get a further sum of Rs. 5,40,000/-  from the month of January, 2013 to June, 2017  due to failure  of handing over possession of the suit flat  to the complainant within stipulated period  which have been specifically  stated in Clause 17 of the said agreement dtd. 26.03.2010.  It is further submitted that in terms of Clause 6 of the Development Agreement  dtd. 26.03.2010 the OP is bound to pay Rs. 15,000/- per month to the complainants towards their shifting charges as monthly rent from the month of March, 2010 to June, 2017 but the OP never  paid or given any  such monthly rent / shifting charges to the  complainant  in spite of making repeated request  and as such  the OP is bound to pay Rs. 1,30,500/- towards such monthly rent / shifting charges for the month of March, 2010 to June 2017 to the complainant.  It is alleged that the condition of the suit flat  which the Op has given to the complainant is very much  worst , poor condition  and the same is totally inhabitable  condition  and water of 2^nd floor  is pouring from the ceiling  of the suit flat.  The materials of the door  and windows are very much inferior  quality .  It is pointed out that by the complainants that they number of times  requested the  OP either to deliver  the possession of the B schedule  property measuring  about 88.91 sq. ft. carpet area in favour of the complainant  or alternatively pay market value  of the said area amounting to Rs. 2,67,000/-( Rs. 3,26,550/- as per present market value)  and also requested to pay of Rs. 5,40,000/- as the said amount  has not been paid by the OP and also for payment of Rs. 1,30,500/- (shifting charges)  .  But the OP to pay any heed to such request  of the complainants and for that reason having no other alternative  the complainant  had sent a letter on 04.09.2017 to the OP .  Asking the Op either to deliver the possession  measuring about 88.9 sq. ft. of carpet area in favour of the complainant or alternatively pay the market value  of the said area amounting to Rs. 2,67,000/- ( as  per present Government Market Value)  and also to pay the other charges and the OP duly received the said notice  and in spite of receiving the said notice the OP intentionally / willfully  failed / neglected  to comply the directions given in the letter dtd. 04.09.2017.  For that reason  the complainant has submitted that the OP is a guilty of gross negligence, deficiency of serve as well as unfair trade practice and for all these reasons the complainant has instituted  this case against the OPs  as per prayer of the complaint petition.

Defence Case – The OP has contested this case by filing W/V where the OP has denied  each and every allegations of the complainants which have been described  in the complaint petition.  This specific  case of the OP which is unearthed from the  W/V in a nutshell  is that as per Development Agreement  dtd. 26.03.2010 the complainants shall be allotted jointly in respect of 927 sq. ft.  carpet area  situated  at South West corner  of the apartment.  It has been  pointed out that as per terms & conditions  of the said Development Agreement  the OP has already paid 1,50,000/- in favour of the complainants who jointly  received the same  and after completion  of the said flat the complainants was supposed to return the said amount of Rs. 1,50,000/-.  It is submitted that the OP delivered the possession  of the flat in favour of the complainants and after being satisfied  with the allotted portion the complainants have taken possession of the said flat but the complainants in order to squeeze  money from the OP has illegally  instituted this instant case.  It is stated that as per terms & conditions of the Development Agreement the OP has provided / giving  the flat measuring  about 927 sq. ft. carpet area in favour of the complainants  and the OP also has given / delivered possession of the said flat  in favour of the complainants  within stipulated period of time but the petitioner   did not  return back the earnest money in favour of the Op despite taking possession of the said flat .  It is alleged  that the complainants  in order to avoid to return back and the earnest money to the OP   intentionally / willfully   have been filed this instant case.  It is also pointed out that the question of delivery of possession  of 88.91 sq. ft. carpet area in favour of the complainants does not arise at all.  It is also stated  by the OP that in the said Development Agreement  dtd. 26.03.2010 if any dispute  and / or differences arises  in between  the parties , they shall settle  the same by way of  mutual discussion but the complainants  without adopting the  said measures has straightway instituted this instant case which is liable to be dismissed.  

Points of Consideration

On the basis of the pleadings  of the parties  this District Commission  for the purpose of arriving at just and proper  decision of this case and also for  the interest of proper and complete adjudication of this complaint case,  is going  to adopt the following points of consideration :-

1. Is this case maintainable  in its present form and in the eye of law or not  ?
2. Has this district jurisdiction to try this case or not?
3. Whether the complainants have cause of action for filing this case or not?
4. Whether  the complainants  are entitled to get the relief which has been prayed  in this complaint case or not?

Evidence on record

The  complainant in order to prove this case has submitted evidence on affidavit  and against the said evidence on affidavit  the OPs have filed interrogatories  and the complainants have given reply against the said interrogatories.

On the other hand in order to disprove the case of the complainant the OP has submitted evidence on affidavit  and against the said evidence on affidavit  the complainant has filed questionnaire to the OP, in spite of getting sufficient  opportunity  has not given any reply against the said questionnaire.

Argument highlighted by the parties

In course of argument the complainant side has filed Brief Notes on Argument and in addition to the said Brief Notes on Argument complainant side has also highlighted  their verbal  submission.  But, on the other hand  the OP has not filed any Brief Notes  on Argument in spite of getting sufficient opportunity.

Decision with reason

All the above noted  4(four) points of consideration are clubbed together  and taken up for discussion jointly as the questions and / or issues involved in the above noted points of consideration  are interlinked  / interconnected with one another.

For the purpose of arriving at  just and proper decision in respect of the above noted points of consideration as well as to decide  the fate of this complaint case, there is urgent necessity  of making scrutiny  of the material of this case record  as well as close examination of the evidence on record.

            After going through the material of this case record  this District Commission finds  that this complaint case has been filed by 4(four) complainants  jointly  and surprisingly  the complainants  have not taken  any permission from this District Commission  for joint filing  of this complaint case.  Thus, it is crystal clear that the complaint case  which has been instituted  by the complainant  is defective from the very beginning.

The sum and substances of the case of the complainant is that the OPs have provided the suit flat measuring  about 838.09 sq. ft. instead of 927 sq. ft. but regarding this case of the complainant the OP has categorically  denied the same  and adopted the plea that the Op has delivered possession of a flat  which is measuring about 927 sq. ft. and the complainants  after being satisfied  with the said measurement has taken possession of the said flat.

In this  connection it is very important to note  that in order to decide the issue  there was urgent necessity  of appointment of a Survey Passed Pleader Commissioner  for measuring the carpet area of the said flat which has been allotted to the complainants.  But in this instant case  the complainant side has not taken any such step for appointment of the Survey Passed Pleader Commissioner.  So, in the absence report of the Ld. Survey Passed Pleader Commissioner it is not possible for this District Commission  to determine  as to whether the complainant has been provided the said flat measuring  about 838.09 sq. ft.  or not.  Thus, it is crystal clear  the complainant in spite of getting sufficient  opportunity  has not proved  his case by way of placing cogent and sufficient evidence.  Moreover, the complainant side  has adopted the plea that the OP has not provided Rs. 5,40,000/- and Rs. 1,30,500/- in terms of the Development Agreement  but in this regard the OP has adopted the defence alibi  that they already have paid Rs. 1,50,000/- as earnest money ( refundable to the complainants) but the complainants in spite of getting delivery of possession of the said flat has not refunded the said earnest money.  In order to prove this issue  the complainant side  has failed to make out his case by way of placing cogent and sufficient evidence.  On the other hand, the OP also has not placed any cogent and sufficient evidence to decide their defence alibi .  Thus, it is crystal clear  that the complainant  has also failed to prove their case in respect of getting the amount of Rs. 5,40,000/- and of Rs. 1,30,500/- from the OPs.

A cumulative consideration of the above noted discussion goes to show  that the complainant has failed to prove his case  in respect of the above noted  4 (four) points of consideration by way of place cogent and satisfactory  evidence.

So, this District Commission has no other alternative  but to dismiss this case on contest.

In the result , it is accordingly,

ORDERED

That this Complaint Case being No. 374/2017 be and the same is dismissed on contest.  No order is passed as to cost.

Both parties are entitled to get a free copy of this judgment as early as possible.

Let this judgment be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

President