Date of filing :14.03.2017
Judgment : Dt.17.9.2019
Mrs. Sashi Kala Basu, Hon’ble President
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Sri Gopal Dey, (2) Sri Monoranjan Dey, (3) Sri Amal Dey, (4) Sri Subrata Dey and (5) Sri Babul Dey alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/S Sree Krishna Real Estate Developers, (2) Sri Dilip Kumar Das, (3) Sri Sajal Chakraborty and (4) Sri Sudip Paul.
Case of the Complainant, in short, is that by virtue of inheritance and by way of deed of gift, Complainants became the sole and absolute owners of the premises No.16/1Q, Raipur Mondal Para Road under Patuli P.S. They entered into a development agreement with OP on 7.11.2012 to raise the construction of a building. So, a power of attorney was also executed in favour of the OPs who undertook to complete the construction of the building within 18 months from the date of sanction of the building plan. Sometime on or about November, 2014 the construction of the building was started and some portion of the construction was mostly completed. But, thereafter for the reasons best known to the OPs, the work was totally stopped. In terms of the development agreement, Complainants were entitled to five numbers of flats in the said proposed building, which has been described in the schedule B of the agreement. The OPs have a plan to transfer the entire project to some other builder without consent and knowledge of the Complainants. So, a notice was sent by the Complainant through their Ld. Advocate to the OPs. But all in vain. So, the present complaint has been filed by the Complainants for directing the OPs to complete the construction work as early as possible, to handover the owners’ allocation, to pay compensation of Rs.10,00,000/- and litigation cost of Rs.50,000/- and to handover the Completion Certificate.
Complainants have annexed with the complaint petition copy of the deed of gift, a copy of the death certificate relating to the death of Rakhal Chandra Dey, copy of the development agreement dt.7.11.2012, copy of the general power of attorney executed in favour of the OPs, copy of the notice dt.17.8.2016 and also copy of other notices sent by the Complainants on different dates.
OP No.3 & 4 have contested the complaint by filing written version denying and disputing the allegations made in the complaint admitting the execution of the development agreement but contending specifically that the Complainants executed the general power of attorney only in favour of OP No.2 & 4. But the OP No.2 namely Dilip Kumar Das is out of Kolkata since many months and the partnership deed, original agreements, sanctioned plan are lying with OP No.2. So, the OPs have stated that if the previous partnership agreement is cancelled and a new development agreement and general power of attorney is executed between the owners and the present OPs excepting OP Dilip Kumar Das then they can continue the construction work. So, as there has been no latches on the part of the OPs, they have prayed for dismissal of the complaint.
OP No.1 & 2 have not taken any step nor filed any written version, so, it appears that the case has been proceeded ex-parte against them.
During the course of evidence, both parties have filed their respective evidences followed by filing questionnaire and reply thereto. Ultimately, argument has been advanced and both parties have also filed brief notes of argument.
So the following points require determination
- Whether there has been any deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Both the points are taken up together for a comprehensive discussion and decision.
In support of their claim that a development agreement was executed between the Complainants and the OPs in order to raise a multi-storied building and as per the said development agreement dt.7.11.2012, the Complainants were allotted B schedule property being 5 numbers of flats, the Complainants have filed a copy of the development agreement, copy of the power of attorney executed in favour of the OP No.2 & 4 empowering them to construct the new building as agreed. As already referred to above, the case of the OP No.3 & 4 in their written version, it is apparent that the execution of the development agreement between the parties on 7.11.2012 and consequent to the same execution of the general power of attorney has not been disputed and denied. The only contention which has been raised by the OPs No.3 & 4 is that as the power of attorney was executed in favour of OP No.2 and the relevant documents i.e. original agreement and the sanctioned plan was in his custody, rest of the OPs have not been able to complete the construction work as per the terms and conditions stated in the agreement. But on perusal of the copy of the general power of attorney filed in this case, it appears that the same was executed in favour of Dilip Kumar Das (OP No.2) and Sri Sudip Paul (OP No.4 herein). They were empowered to do all the necessary work to carry out the construction work. The specific recital in the written version by the OP No.3 & 4 is also very categorical that the plan was sanctioned and the structure was also raised towards the proposed building. So, even accepting the contention of the OP No.3 & 4 that Dilip Kumar Das has not been available for many months, there is no explanation as to why the OP No.4 who was also nominated and appointed as the attorney holder, could not complete the construction work as per the terms and conditions of the agreement. The development agreement has been executed with the firm. So, all the partners are bound by the terms and conditions in the agreement. It has been specifically agreed by the OPs that they shall complete the construction of the proposed building within 18 months from the date of the sanction of the building plan. Plan was sanctioned and apparently construction was also started towards the proposed building. So, non-availability of one of the partners namely Dilip Kumar Das cannot be a ground for not completing the said construction work as agreed. The contention of the OPs for a direction for dissolving the partnership firm due to non-availability of the said partner Dilip Kumar Das cannot be allowed by this Forum as the same is beyond the scope of the subject matter in this case. It is for them to take the appropriate step and there is no material before this Forum that OPs due to alleged non-availability of one of its partners dissolved he partnership firm. So, it suggests that the plea of not completion of construction of building due to OP No.2 is nothing but an after-thought in order to shed their liability. So, as there has not been any fault on the part of the Complainants and they have not been provided with the owners’ allocation as per the agreement, they are entitled to the direction upon the OPs to complete the construction of the building and to handover possession of the owners’ allocation as prayed. However, reasonable time will have to be given to OPs to complete the construction work. A huge amount of Rs.10,00,000/- has also been prayed as compensation. But, before this Forum there is no material to assess the compensation as prayed by the Complainant. So the said huge amount cannot be allowed. However, towards mental agony, they are entitled for compensation to some extent.
Hence
ordered
CC/157/2017 is allowed on contest against OP No.3 & 4 and ex-parte against OP No.1 & 2. OPs are hereby directed to complete the construction work of the building and hand over owners’ allocation as per the agreement dt.7.11.2012 within eight months from the date of this order. The OPs are further directed to pay compensation of Rs.70,000/- and litigation cost of Rs.10,000/- to the Complainant. Amount towards compensation and litigation cost shall be paid by OPs within two months from the date of this order in default the sum shall carry interest @ 9% p.a. till realisation.
