Date of Filing : 23/03/2022
Date of Judgment: 12/11/2024
Sri Manish Deb, Hon’ble Member
The fact of the case is that the OP No.1 M/s. Shibayya Constructions Pvt. Ltd is a building development and construction company, carrying on business of building promotion and development of different properties represented by its both Managing Director, the OP No.2 and Director, the OP No.3
That the complainants as joint owners had entered into a registered development agreement dated 02.12.2015 with the OP No.1 to OP No.3 to develop their property by constructing a new G+III storied building with lift after demolishing the old structures as per KMC sanctioned building plan.
The complainants also duly executed a registered general power of attorney dated 02.12.2015 in favour of the OP No.2 for proper implementation of the project work smoothly.
In the said development agreement it was agreed by and between the complainants and the OP No.1 to OP No.3 , developer to provide 50% share of total constructed area of entire building including building terrace and top roof together with car parking spaces on the ground floor of the proposed building along with undivided proportionate share of the land to be constructed at KMC premises No.3 Durgapur Lane, Police Station , Chetla, Kolkata 700 027 in the District South 24 -Parganas in Mouza -Durgapur, under P.O. Alipore within the limits of KMC under Ward No.74 of the proposed new building. It is further agreed by the OP No.1 to OP No.3 , developers that the developers will pay a sum of Rs.10,50,000/-only as non refundable amount to the complainants/owners at the time of execution of the registered development agreement dated 02.12.2015 would go to the owners’ allocation as mentioned in the Schedule-‘B’ of the development Agreement .
In the said development agreement it was agreed by and between the parties herein that the developer shall complete the construction work of the total building as per KMC building sanctioned plan and will hand over the possession of the owners’ allocation to the complainants within a period of 24 months from the date of sanction of the building plan sanctioned by the authority of KMC. it is also pertinent to mention here that the KMC authority already sanctioned the building plan of said newly constructed building project on 19.03.2018 for the said property being B.P.No.2017090098, so the developer were under obligation to deliver and/or handover the owners’ allocation to the complainants within March 2020 in complete finished habitable condition.
It is further stated that OP No.1 to OP No.3, developer shall pay non refundable amount of Rs.10,50,000/- only as total payable amount to the complainants in terms of the development agreement dated 02.12.2015.
The complainants stated that the OP No.1 to OP No.3 developer suddenly stopped to discharge their obligations in all respect and also did not complete the construction work of the said building project including the complainants’/owners’ allocation within the stipulated period as per the terms of the registered development agreement dated 02.12.2015 . the OP NO.1 to OP No.3 developers intentionally till today without any cogent reasons did not complete the owners’ allocation and other common portions in habitable condition and/or deliver the possession of the owners’ allocation to the complainants /land owners to hand over possession of the developer had turned a deaf ear.
The OP NO.1 to OP No.3, developer after completion of the entire developer’s allocation of the said building project in habitable condition except the owners’ allocation and other common portions, the OP NO.1 to OP No.3 developer intentionally neither completed nor delivered and/or handed over the possession of the owners’ allocation to the landowners till date of filing without any rhyme or reasons. Be it mentioned here that the OP No.1 to OP No.3 developer have gained financial gains wrongfully by depriving the complainants form their legal claims in terms of the development agreement.
And even after past of six years from the date of execution of the development agreement, and four years from the date of sanctioned building plan, the developer remains silent. By this way the opposite parties have been trying to avoid their legal obligations to deprive the complainants from their legitimate claims.
The complainants state that the OP No.1 to OP No.3 developer had also entered into a supplementary agreement with the complainants on 10.06.2018 in respect of share of area to be constructed at the proposed new building.
Be it mentioned here that at the time of physical measurement of the said land its gets only about 3 Cottahs 01 chittacks 30 sq.ft. in area. The complainants state an submit that pursuant to the terms as stipulated in the supplementary agreement, the developer agreed to pay a non refundable further amount ofs.5,50,000/-only as owners’ allocation in favour of the complainants.
It is pertinent to mention here that as per terms of the development agreement dated 02.12.2015 the developer paid Rs.10,50,000/- to the complainants and as per the supplementary agreement dated 10.06.2018 further the developer agreed to pay the rest balance non refundable amount of Rs.5,50,000/- in two part to the complainants, where the developer only paid Rs.3,00,000/- out of Rs.5,50,000/- keeping dues therein Rs.2,50,000/- in terms of the supplementary agreement dated 10.06.2018 which was payable to the complainants , it is further agreed by the developer to provide 50% share of total constructed area i.e. three separate flats of the newly constructed building being (i) entire flat No.3A on the third floor, eastern side (ii) entire flat No.1A on the 1st floor, eastern side (iii) entire flat No.1A on the 1st floor, western side, all three flats in complete finished and habitable condition. It is also agreed by the developer that 50% share of building terrace , top roof and car parking spaces i.e. 3 car parking spaces on the ground floor (in complete finished condition) along with undivided proportionate share or interest on the land at KMC Premises No.3 , Durgapur Lane, P.S. Chetla, Kolkata -700 027 in the District South 24 -Parganas in Mouza - Durgapur under P.O. Alipore within the limits of the KMC under Ward No.74 of the newly constructed building would go to the owners’ allocation as mentioned in schedule ‘B’ herein of the development agreement.
The complainants state that the OP No.1 to OP No.3 developer suddenly stopped to discharge their legal duty and obligations i.e. also did not complete the construction work of the said building project including the complainants’/owners’ allocation within stipulated period as per development agreement dated 02.12.2015. the OP No.1 to OP No.3 developer intentionally till today without any cogent reasons did not complete the owners’ allocation in habitable condition and/or deliver the possession of the owners’ allocation to the complainants. In spite of repeated requests by the complainants/land owners to hand over possession of the owners’ allocation , the developer had turned a deaf ear.
Whereas by violation of the terms of both the development agreement and supplementary agreement, the OP No.1 to OP No.3 mostly constructed the entire building project in habitable condition except the owners’ allocation and most part of the common portions.
The OP No.1 to OP No.3 also failed and neglected to complete the common facilities and common passages and areas and installation of main gate of the building as yet.
The complainants case is that in terms of the said both development agreement and supplementary agreement, the developer violated terms and conditions the agreement, failed and neglected to deliver and/or handover the owners’ allocation with possession letter and also did not pay balance non refundable amount of Rs.2,50,000/- only with interest in favour of the complainants as yet.
Thereafter finding no other alternative, the complainants have instructed their Ld Advocate to issue legal notice upon the OP No.1 to OP No.3 , developer. Accordingly, Ld advocate of the complainant sent legal notices dated 06.01.2022 calling upon the opposite parties No.1 to OP No.3 to settle the legitimate claims of the complainants within one month from the date of receipt of the said notices but the developer did not reply the same till the filing of the case.
Finding no other alternative complainants filed this complaint petition before this commission against the OPs for redessal.
The scheduled premises that is KMC premises No.3 Durgapur Lane, P.S. Chetla, Kolkata 700 027 which is within the jurisdiction of this Hon’ble Commission.
Complainants prays for an order directing the OP No.1 to OP No.3 to complete the construction of entire owners’ allocation i.e. three flats. Alternatively an order directing the OP 1 to OP No.3 to pay a sum of Rs.15,00,000/- as estimated cost for incomplete works of the building including owners’ allocation.
An order directing the OP No.1 to OP No.3 to deliver and/or handover the entire owners’ allocation i.e. three separate complete finished flats and car parking space
An order directing the OP No.1 to OP No.3 to pay a sum of Rs.2,50,000/- with bank interest on and from January 2019 till the date of actual payment of the same.
POINTS FOR DISCUSSION
Whether complainant fall in the category of the “Consumer” under Consumer Protection Act 2019.
Whether the present complaint is within limitation under Consumer Protection Act, 2019.
Whether the commission has the jurisdiction to decide the present complaint
Whether the opposite party in deficient in providing its services to the complainant.
Whether the case is maintainable or not
Whether the complainant is entitled to get relief as prayed for.
OBSERVATION, DISCUSSION AND FINDINGS
The complainant falls in the category of the “Consumer” under Consumer Protection Act 2019.
It is filled within two years from the date on which the cause of action has arisen.
The commission has territorial jurisdiction to decide the present complaint as the property in question is situated at KMC premises No.3 Durgapur Lane, P.S. Chetla, Kolkata 700 027 which is within the jurisdiction of this Commission.
The main question for consideration before us is whether the opposite parties are deficient by not providing completely constructed entire owners’ allocation i.e. three flats, three car parking space along with completion certificate within stipulated period, our view is the opposite parties are liable in deficiency in service and unfair trade practice as alleged and regarding entitlement of getting relief sought by the complainants is also affirmative.
The complainants adduced evidence together with copy of documents which includes, Copy of sale deed , development agreement , Sanctioned plan , Supplemental development agreement and coloured pictures of the building and owners portion .
The OPs deliberately withheld the relevant information in respect of their contractual obligation which is an act of negligence, during such a long period the OPs have created a lot of inconvenience or harassment and mental injury to the complainant.
Whereas under the contractual obligation the OPs were supposed to do certain acts to provide service as agreed towards the complainant within a certain time frame of work which they did not performed and as such the acts of the said OPs come under the ambit of deficiency of service.
The Opposite Party No. 1 to 3 though filed the written version and Affidavit in chief, did not file questionnaire against the evidence of the complainant. It appears from record that the OPs contested the case by filing written version wherein they contended that the building plan was sanctioned on 19/03/2018, but the land owners/ complainant did not hand over the vacant possession of the property after execution of the development agreement within stipulated time of the development agreement, the property was not a free hold property as the property was occupied by the third party, and the owner / complainant have under taken to vacate the premises within one year from the date of under taking given by the owners , and it was also contented the that if the complainants be not able to vacate the illegal occupier from the north east portion (outside of the premises) outside of the boundary wall within period of one year from the date such extended time , the developer will keep or retain the entire owners allocation in their custody, the owners have handed over the possession of the vacant property to the opposite parties after 2019.
The undertaking without any date which produced before commission by the opposite parties it was clearly mentioned that the an illegal occupier was there but it was outside of the northern boundary wall of the property is question,
We can’t find any reasonable and believable cause why any there was so delayed to complete the project and the opposite party were so reluctant to complete the owners allocation, our view is that eviction or eliminations of the any occupier from the outside of the project premises could not prevented the opposite parties from completion of the project property in stipulated time frame .
The opposite has denied that the developer has handed over the possession of the flat of 2nd floor from developers allocation to one Tapasi Bose.
It is denied that the opposite parties intentionally did not handed over the owners allocation till date filing of the complain petition, These opposite party has completed the building with lift facility and other amenities and in habitable condition.
The opposite party has contended that in spite of pandemic situation these opposite has completed the building including the owners allocation , the allegation of the complainant are false and not correct that the complainant has not completed the owners allocation, other hand the complainant have failed and neglected to receive the vacant possession of the owners allocation on time from the opposite party it was owners fault.
The opposite party have stated that the concern authority has already issued lift license of the newly constructed G+III Storied building in favour of the complainant.
The opposite parties state that the complainant is not a consumer and there is no deficiency of service on the part of the opposite party .
The opposite parties have stated that the complainant is not entitled to get any compensation for mental agony , physical harassment etc from the opposite party , also stated that there is no unfair trade practice on the part of the opposite parties, the project was ready but the complainant was negligent in taking initiative to get possession of the owners allocation.
The opposite party has filed a reply before the commission, contending that the complaint lack merit and should be dismissed due to
Whereas after perusal of the report filed the Engineer commissioner date 31.0.5.2023, it is prominent or clear that till the date of filing of his report there were several discrepancies in respect completion of the building and floors of the building, as the Engineer commissioner has described in points No.1 to 7 and other relevant points of his report he filed before this commission. The Engineer commissioner hold and completed the commission work after informing the opposite parties.
We have applied our mind and meticulously gone through the materials on record. In the written version submitted by OPs we do not find any reasonable ground and proof in support of OP’s contention that the project was ready for delivery. Moreover there was no denial on the part of the OPs with respect to the report of the of the engineer Commissioner, it is established that developer had sinister attitude to hand over the completed and in habitable condition of the owners allocation(3 three flats & 3 three car Parking spaces) to the complainant , and also violated and neglected regarding the mandatory terms and condition of the development agreement , and supplemental development agreement.
This contention of the ops cannot be justified or accepted especially since the opposite party has got sufficient time to develop the project/ building if he got the sanctioned plan in the year 2018 and started construction. The reason that in 2019 was due to Covid -19 cannot be justified as the lockdown due to the pandemic commences on in march 2020, so the defence on the account of force majeure by the opposite part as raised cannot be considered , similarly with regard to the non hand over the vacant possession of the premises , no evidence has been brought on record to prove how the default by the complainant delayed the project.
Further OPs have several times asked the complainant to clear the GST for land lord portion otherwise flat handover not possible and also be forced to stop building work amount to the complainants, made it crystal clear that the project was not ready for delivery and there was an established fact of deficiency in service by way of making breach of contract as per the agreement for development . By all means we are of the opinion that non completion of project, owners allocation ( flats & car parking space) and non delivery of the owners allocation on time by the Ops are a clear cut proof of deficiency in service and unfair trade practice on the part of the OPs.
Thus, the case of the complainant stands successfully established and thereby the complainant is found eligible to get the relief.
Hence it is
ORDERED
That CC No.173/2022 is allowed on contest with cost against the OPs.
- OPs are directed to complete the construction work of the entire owners allocation and hand over the owners allocation in complete , finished and habitable condition as stated in the Schedule “B” of the development agreement dated 02.12.2015 and supplemental agreement development agreement dated 10.06.2018, within 60 days from this order.
- OP3 is directed to make payment of the balance non refundable amount as per supplemental development dated 10.06.2018 amount of Rs. 2,50,000 along with interest @9% p.a. for the period from the date of agreement till the date of actual payment.
- OP3 is further directed to pay Rs.50,000/- as compensation to the complainant harassment and mental agony.
- OP3 is also directed to pay Rs.20,000/- towards the cost of litigation to the complainant.
All the above payments should be made within 60 days from the date of this order.
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
