Date of Filing : 05 December, 2019.
Date of Judgement : 29 November, 2024.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when Sri Dulal Chandra Sharma, hereinafter called as the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986 (the Act) against (1) M/s. Tirupati Builders being represented by its proprietor Sri Swapan Paul, hereinafter called the Opposite Party or OP and also against (2) Sri Kalachand Sharma and (3) Sri Gopal Chandra Sharma, hereinafter called as the Proforma Opposite Parties or Proforma OPs, alleging deficiency in service on the part of the OP for non-delivery of shop room and delivery of flat having area less than allocation made in the development agreement.
Facts as emerged from the complaint petition are that the complainant along with the Proforma OPs entered into a registered Development Agreement with the OP on 04/06/2014 in order to construct a multi-storied building in their joint premises comprising of total area of 4 Katha 11 Chittacks 00 sq. ft. lying and situated at Mouza Bally, within the limits of Nischinda Gram Panchayat. Along with this development agreement a registered Power of Attorney was also executed on that date in favour of the OP for this construction. According to this agreement the complainant would get, as his owners allocation, a 600sq. ft. super build up area flat in the ground floor, back side of the building and a 80 sq. ft. shop room in the ground floor, front side of the building for his livelihood by means of self-employment. It was stated in this development agreement that the OP/Developer would complete the construction of the building within 24 months with a grace period of 6 months and then the developer would hand over the owners allocations in complete and finished condition. It is the allegation that the OP/developer handed over the complainant a 545 sq. ft. flat in unfinished condition instead of a 600 sq. ft. finished flat. No possession letter had been handed over to the complainant in respect of this flat. Even the OP has not handed over the 80 sq. ft. shop room to the complainant which had caused financial loss of the complainant as he could not earn his livelihood. Moreover, it was decided through agreement that the OP/developer would use the existing meter of the complainant for construction work and the OP would pay the electric bill raised against this meter. But it is the allegation of the complainant that the OP had not paid the electric bill dated 01/11/2017 of ₹20,036/-. His repeated persuasion of getting his allocated 600 sq. ft. flat and the shop room and also payment of ₹20,036/- for electric bill has not been fulfilled for which he sent a legal notice to the OP through his Ld. Lawyer on 03/12/2018 which also brought no response from the OP. Ultimately, seeing no other alternative to get his grievances be redressed, the complainant filed this instant complaint petition praying:
(i) to direct the OP to pay compensation of ₹3,000/- for physical and mental harassment and for negligent act of the OP;
(ii) to direct the OP to hand over the allocated 600 sq. ft. flat along with possession letter in favour of the complainant instead of unfinished 545 sq. ft. flat;
(iii) to direct the OP if he fails to hand over the allocated 600 sq. ft. flat then to pay the market value equivalent to the undelivered 55 sq. ft. area;
(iv) to direct the OP to hand over the allocated 80 sq. ft. shop room to the complainant;
(v) to pay simple rate of interest upon all the dues due from the OP till realization;
(vi) to pay all litigation costs; and any other relief/reliefs to restrain the OP from doing unfair trade practice.
Complainant filed copies of (i) the registered Development Agreement and Power of Attorney executed on 04/06/2014, (ii) electric bill dated 01/11/2017 and (iii) legal notice dated 03/12/2018 sent to the OP through Ld. Lawyer as annexure to the complaint petition.
Notices were served upon the OP and Proforma OPs, after admission, to appear and contest the case by filing their written versions. None of them appeared despite ample opportunities were given to them nor did they file their written version for which the case proceeded ex parte against the OP and the Proforma OPs. Then the complainant filed his Evidence on Affidavit. Ultimately argument was heard in full from the complainant side and the complainant filed his Brief Notes on Argument. None of the OP and Proforma Ops took part in the argument.
We have now come to the position to deliver the Final Order in this case. We have to decide:
(a) whether the complainant is a consumer under the OP in accordance with the C. P. Act, 1986;
(b) whether the OP is deficient in rendering proper service to the complainant;
and (c) whether the complainant is entitled to get relief(s) as prayed for.
Let us take these points together in our discussion to avoid repetition.
DECISION WITH REASONS
Factual matrix emerged from the complaint and the annexed documents:
It is the contention of the complainant that he along with the Proforma OP Nos. 2 &3 entered into a Development Agreement with the OP/Developer on 04/06/2014 in order to construct a multi-storied building at their premises under the Nischinda Gram Panchayat comprising of total area of 4 Katha 11 Chittack 00 sq. ft. It is allegation of the complainant that the developer delayed the construction of the building beyond the stipulated 24 months or 30 months after the execution of the agreement and even the developer/OP handed over the complainant a 545 sq. ft. flat instead of the agreed 600 sq. ft. flat and the developer/OP had not handed over the 80 sq. ft. shop room to him. Moreover the developer/OP has used his existing meter during construction but did not pay the electric bill generated on 01/11/2017 amounting to ₹20,036/-. His repeated persuasion to hand him over the agreed 600 sq. ft., flat together with the 80 sq. ft. shop room and payment of ₹20,036/- due to usage of electric through his existing meter brought no result for which the complainant filed this complaint with the prayers stated herein above.
Complainant has brought all his allegations in his evidence.
As the OP has not contested the case we have no alternative views to counter or rebut the allegations of the complainant.
Findings:
When we scrutinize and scan the complaint petition and documents annexed therein we find that the development agreement executed on 04/06/2014 tells us that Sri Kalachand Sharma, the Proforma OP No. 2, was the owner of 2 Cottah 3 Chittack 06 sq. ft. of Bastu land recorded in Khatian No. 6879, under Dag No. 6840 and recorded in Khatian No. 7259, under Dag No. 6839 received through a registered deed of gift from his father Sri Surendra Mohan Sharma. Sri Surendra Mohan Sharma also transferred 580 sq. ft. i.e. 12 Chittack 40 sq. ft. of Bastu land and 170 sq. ft. Pucca structure to the present complainant by a registered deed of gift. Sri Gopal Chandra Sharma, the Proforma OP No. 3 and father of the complainant, was the absolute owner of a Bastu land measuring 1 Cottah 05 Chittack 17 sq. ft. and a 170 sq. ft. structure. The present complainant has sold 119 sq. ft. covered structure area with undivided proportionate share of land without any right, title and interest over the roof of the said shop room to one Sri Amit Majumder through a registered deed of sale in 2007. The owners have amalgamated their property by a joint declaration before the Executive Magistrate, Howrah, on 04/06/2014, i.e. on the date of execution of the development agreement. It is stated in the schedule of this development agreement that the developer agreed to construct a four-storied building in a total area of 4 Cottah 11 Chittack 00 sq. ft. Bastu land after demolition of the dilapidated structure therein and after getting the building plan duly sanctioned by the Howrah Zilla Parishad. It was decided that the Proforma OP No. 2 would get 39% super built up area and the Proforma OP No. 3 together with the present complainant would get 36% super built up area in respect of their respective lands. It was also settled that the Proforma OP No. 2 would get 2 flats, each of area 600 sq. ft. super built up area, one in the 1st Floor and the other in the 2nd Floor and would get a 80 sq. ft. shop room also. The Proforma OP No. 3 was entitled to get a 800 sq. ft. flat in the 2nd Floor and the complainant was entitled to get a 600 sq. ft. flat in the ground floor and also was entitled to get a 80 sq. ft. shop room in the ground floor. It was also settled that the remaining shares of all the owners would be provided in the top floor of the building.
Complainant has confessed that he had been given a 545 sq. ft. flat in the ground floor instead of a 600 sq. ft. flat and no shop room had been provided to him. It is the allegation of the complainant that the OP/developer has not handed over the copy of the sanctioned building plan. But construction of the building has been done by the OP as he has handed over a flat to the complainant. It is to be noted here that the complainant has not refused to get possession of the flat measuring less that the expected 600 sq. ft. flat, rather he demanded the 600 sq. ft. flat while it was settled through the development agreement that the remaining shares would be provided to the owners in the top floor of the building. Complainant has not stated anything whether the Proforma OPs have been handed over their respective shares. He has no allegation against the Proforma OPs.
It is stated in Clause 11 in Page 9 of the development agreement that the developer, the OP, had to construct the building without demolishing the “said” shop room. But a proper description of this shop room has not been given. We consider here the statement that the complainant has sold 119 sq. ft. covered area to Sri Amit Majumdar and this has been mentioned in this Clause as the said shop room.
In Clause 21 in Page 13 of this agreement it is stated that the existing meter of the owner will be used by the developer for supply of electricity for the construction and the developer will pay the electric charges. Here the specific name of the owner has not been mentioned. The complainant has submitted a copy of the electric bill dated 01/11/2017 wherefrom it appears that it is a domestic connection and the complainant has allowed the developer to use this domestic connection for commercial purpose which is highly illegal. Moreover the stated Clause has not mentioned that the developer was going to use the complainant’s meter.
As there is no other alternative submission, we have to rely on the statement and evidence of the complainant. So we can say that the OP has handed over a flat to the complainant which is less than the stipulated area, though, according to the agreed decision, there is a scope of getting the remaining balance share in the top floor of the building. But it can be easily said that the OP has failed to hand over the 80 sq. ft. shop room to the complainant which would be his source of income for his livelihood.
The above discussion leads us to conclude that the complainant is a consumer as he has given his share of land to the developer/OP who is liable to hand over his promised share in the newly constructed building. The OP is deficient in service agreed to be provided to the complainant. So, we are of the view that the OP is liable to hand over the 80 sq. ft. shop room to the complainant as promised in the development agreement. The OP is also liable to hand over the remaining balance share to the complainant in the top floor of the new building. The OP must hand over proper possession letter/letters in respect of the complainant’s share and also the sanctioned building plan. The complainant suffered very much as he was not given the shop room using which he could earn his livelihood and the OP must provide compensation for such suffering. We think a sum of ₹20,000/- will be justified in this case. The OP is also liable to pay ₹5,000/- to the complainant as the litigation cost. We restrain ourselves from giving any direction on payment of the charge for the electric used by the OP.
It is, therefore,
ORDERED
that the Complaint Case bearing No. CC/387/2019 be and the same is allowed ex parte against the Opposite Party and with cost and dismissed against the Proforma Opposite Parties.
1. The Opposite Party is directed to provide the complainant a shop room of area 80 sq. ft. in the ground floor as stated in the Development Agreement dated 04/06/2014. The Opposite Party is directed to hand over the remaining balance share to the complainant as promised in this Development Agreement. The Opposite Party is also directed to hand over the possession letters in respect of the complainant’s shares in the building and the building plan duly sanctioned.
2. The Opposite Party is directed to pay ₹20,000/- as compensation and ₹5,000/- as litigation cost to the complainant.
The Opposite Party is directed to comply with these orders within 60 days from the date of this order otherwise the complainant will have the liberty to take steps under the law.
Both the parties are given liberty to get a free copy of this order.
Dictated and corrected by me
Member.
