Dt. of filing 17/04/2017
Dt. of Judgement – 27/02/2019
Mrs. Sashi Kala Basu, Hon’ble President
This consumer complaint is filed by the Complainant namely Paritosh Dhar Roy under Section 12 of the Consumer Protection Act, 1986 against the Opposite Parties namely 1) M/s. Sundaram Enterprise 2) Mr.Babul Saha 3) Mr. Nirmal Debnath 4) Mr. Bikash Chakraborty 5) Manoj Kr. Roy @ Manoj Dhar Roy 6) Mrs. Krishna Ghosh 7) Mrs. Mitra Roy and 8) Mrs. Shanti Roy alleging rendering deficiency in service on their part.
Case of the Complainant in short is that Complainant and the Opposite Party Nos.5 to 8 are the brother and sisters in relation and joint owners of the landed property (amalgamated plot) measuring about 5 Cottahs 8 Chittaks 22 sq ft lying and situated in premises no.204 and 408 described in detail in the schedule of the complaint petition. The Complainant and the Opposite Party Nos.5 to 8 intended to develop the said property raising the multistoried building on the southern part of the land at premises no.204 and portion of land at premises no.408. On being approached by Opposite Party Nos.1 to 4 the developer, an agreement was executed between them on 10/1/2012 whereby it was agreed that the Opposite Party Nos.1 to 4 will pay adjustable amount of Rs.12,00,000 to Opposite Party Nos. 6, 7 & 8 @ Rs.4,00,000/- each and in return the Opposite Party Nos.6, 7 & 8 shall execute the register deed of gift in respect of their portion in favour of Complainant and Opposite Party No.5. It was also agreed that developer shall also pay Rs.10,000/- each (refundable security money) to the Complainant and Opposite Party No.5. Developer’s allocation was 60% and owner’s allocation was 40%. As per the development agreement it was agreed that the developer shall complete the construction within 36 months from the date of sanction of the building plan. But the Opposite Party Nos.1 to 4 did not take any step to complete the construction work and to hand over the possession to Complainant’s allocated portion. A notice was sent through his Ld. Advocate to the Opposite Party Nos.1 to 4 but all in vein. So the present case has been filed by the Complainant praying for directing the Opposite Party to start and complete the construction work at the schedule property as per agreement, to provide physical possession of the Complainant’s allocated portion, to issue possession letter, copy of the completion certificate and other relevant papers, to pay Rs.2,00,000/- as compensation and for mental agony, Rs.2,00,000/- for deficiency in service, Rs.2,00,000/- for unfair trade practice and Rs.1,00,000/- as litigation cost.
Complainant annexed with the complaint petition, the development agreement dated 10/1/2012 and copy of the notice dated 23/3/2017 sent by the Complainant through his Ld. Advocate.
Opposite Party Nos.1 to 4 has contested the case by filing written version denying and disputing the allegation made in the complaint petition against them and have contended inter alia that it was resolved in the agreement that the owner shall hand over vacant possession of the schedule property along with existing structure standing thereon to the Opposite Parties within seven days from the date of the execution of the said agreement. But they have failed to hand over the vacant possession of the property especially due to the act of the Complainant himself. It was also resolved in the agreement that Complainant and the Opposite Party No.5 shall jointly negotiate with the different tenants in the schedule property in order to make them hand over possession of the schedule property in favour of the Opposite Party Nos.1 to 4. But they have failed to do so.
It is further case of OP No. 1 to 4 that in accordance with the agreed terms Opposite Party Nos.1 to 4 have already paid Rs.12,00,000/- to the Opposite Party Nos.6 to 8 and in return Opposite Party Nos.6 to 8 duly executed and registered formal deed of gift in favour of the Complainant and Opposite Party No.5 as agreed. In doing the same, Opposite Party Nos.1 to 4 have incurred an expenditure to the tune of Rs.15,00,000/- in total. Though Opposite Party Nos.5 to 8 have always been willing to co-operate in handing over procedure and solving the tenant’s issues but the Complainant has created the problem in handing over of free possession by the tenants. Complainant makes demand of more money from the Opposite Party Nos.1 to 4 contrary to the agreed terms in the agreement. So Opposite Parties have prayed for dismissal of the case.
In course of the evidence both the parties adduced their respective evidence by filing affidavit-in-chief followed by questionnaire and reply thereto and ultimately the argument has been advanced. They have also filed written notes of argument.
So the following points require determination:
- Whether there has been any deficiency in services on the part of the Opposite Parties?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both these points are taken up together for a comprehensive discussion.
Complainant has claimed that he and the Opposite Party Nos.5 to 8 being the owners of the schedule property entered into development agreement with Op No. 1 to 4 on 10/01/2012 to develop and construct multistoried building agreeing that owners will get allocation of 40% and developers allocation 60% . It was further agreed that Opposite Party Nos.6 to 8 would be given Rs.4,00,000/- each and they in return will execute deed of gift in respect of their share in favour of Complainant and Opposite Party No.5. Construction was to be completed within 36 months from the sanction of building plan. But it is not done by the developers.
Opposite Party Nos.1 to 4 while admitting about development agreement and the terms therein have categorically contended that the Opposite Party Nos.1 to 4 have not been handed over the vacant possession of the premises and the existing structure especially due to the dilatory tactics by the Complainant.
On perusal of the relevant recital of the development agreement it appears that it has been categorically stated that “The owners shall hand over the peaceful vacant possession of the existing structure and premises to the developer within seven days from execution of this agreement.”
So Complainant and the co-owners were under obligation to hand over the vacant possession to the developer for raising the construction and for getting the plan Sanctioned. Opposite Party Nos. 1 to 4 have stated that there are tenants in the existing premises and even though Opposite Party Nos. 5 to 8 are willing to co-operate to handing over procedure and solving the tenants issue but complainant creates problem in providing free possession by the tenants. Complainant knows very well until and unless the possession is free and the structure is demolished, Kolkata Municipal Corporation will not provide the building plan sanction certificate.
It appears that during evidence, Opposite Party Nos.1 to 4 have put specific question to the complainant in the questionnaire filed by them “ what steps did you take till today for evicting the tenants from the land.”
No answer has been given by the Complainant in his affidavit-in-reply to the said abovementioned specific question suggesting that the Complainant has admitted the claim of the Opposite Party Nos.1 to 4 that no step has been taken by the Complainant to vacate the tenants and to hand over the vacant possession as agreed in the development agreement. So unless the tenants are vacated and structure is demolished, there cannot be the construction of the new building as agreed as the plan will not be sanctioned. Complainant has claimed that after remaining silent for about 6/7 years, Opposite PartyNos.1 to 4 have now claimed that possession was not handed over. It is argued that if the possession was not handed over then why Opposite Party Nos.1 to 4 remained silent for so many years. But it may be mentioned that Complainant has also not filed any document to show that the vacant possession was handed over or the tenants have already vacated. On the contrary Complainant has not denied that Opposite Party Nos.1 to 4 have already paid Rs.12,00,000/- to the Opposite Party Nos.6 to 8 in terms of the development agreement and they have already executed deed of gift in favour of Complainant and Opposite PartyNo.5.
Admittedly Opposite Party Nos.6 to 8 have not returned the said money paid by the Opposite Party Nos.1 to 4. Opposite Party Nos.1 to 4 have also not filed any case for return of the said money because they claim that Opposite Party Nos.5 to 8 have always been willing to co-operate in handing over procedure but it is the Complainant who always had put obstruction and hindrances.
The terms and conditions of an agreement is binding upon both the parties. Both the parties are under obligations to comply with the terms and conditions. In this case first step was to be taken by the owners including the complainant. But as highlighted above, Complainant himself has not complied the condition of the agreement of handing over the vacant possession. So his claim of deficiency in service on the part of the Opposite Party Nos.1 to 4 cannot be accepted and thus he is not entitled to the reliefs as prayed.
These points are thus answered accordingly.
Hence,
ORDERED
CC/227/2017 is dismissed on contest against OP No. 1 to 4 and exparte against OP No. 5 to 8.
