Date of filing – 09.09.2015

Date of final hearing – 20.10.2016

            The instant complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a landowner against the developer and its partners with the allegation of deficiency in services on the part of them in a consumer dispute of housing construction.

          In a capsulated form, the Complainant’s case is that with an object to start a housing business, he has entered into a Development Agreement with the Opposite Party no.1 Firm being represented by its partners i.e. OP nos. 2 & 3 on 29.09.2014 and also executed a Registered Power of Attorney empowering the OP no.1/developer to raise a construction over the said property.  In the Agreement, it was stipulated that the owners and developer’s allocation would be 50% - 50% each and the entire cost of the construction would be borne by the OP no.1.  It was agreed that the developer will complete the construction within 24 months from the date of Sanctioned Building Plan.  The Complainant has alleged that even after lapse of one year, the developer did not take any step whatsoever and in this regard repeated reminders and persuasions turned a deaf ear.  The Complainant submits that due to latches and negligence on the part of the developer, he has sustained a loss to the tune of Rs.30,00,000/-.  Hence, the Complainant approached this Commission with the instant complaint with the following prayers, viz – (a) to direct the OPs to pay a sum of Rs.30,00,000/- along with interest @ 18% p.a. from October, 2015 till the realisation of the same; (b) to direct the OPs to pay compensation of Rs.5,00,000/- for mental agony and harassment; (c) cost of the litigation etc.

          Inspite of receipt of summons/notices, the OPs did not contest.  Under painful compulsion, the record was taken up for exparte hearing.

          The Complainant Shri Dipankar Das has tendered his evidence on affidavit.  I have gone through the evidence on affidavit coupled with the documentary evidence available with the record including the (1) copy of Deed of Conveyance in favour of the Complainant dated 28.12.2011 in respect of the property in question; (2) copy Registered Development Agreement dated 29.09.2014 and (3) the copy of Registered General Power of Attorney executed by the Complainant in favour of the Developer dated 29.09.2014.

          Having heard the Complainant and on going through the materials on record, it has come to surface that the Complainant has purchased a land measuring an area of 4 cottahs 15 chhitaks and 20 sq. ft. in R.S. Khatian No.9, at Mouja Haridebpur, P.S.- Behala within the limits of Joka-I, Gram Panchayat from one Smt. Laxmi Ganguly on 28.11.2011 at a valuable consideration of Rs.18,90,000/-.  Now, in order to start of a housing business thereon the Complainant had entered into a Registered Development Agreement with the OP no.1 represented by its partners being OP nos. 2 & 3   on 29.08.2014.  On the self same date, Complainant has also executed a Registered General Power of Attorney authorising the developer to raise construction over the said land.  In the Development Agreement, it was stipulated that the share of both the landowner and the developer would be 50% - 50%.  It was stipulated that the developer shall comply the building within 24 months from the date of getting the sanction of the proposed multi-storied building.  However, OP/developer did not take any step, whatsoever, to perform their part of the obligations.  In Clause 13 of the Agreement, it was also stipulated that within one month from the date of delivery of possession, the Developer shall prepare the flat of the said multi-storied building as per desire of the owner and placed the same before the competent authority for getting its sanction.  But as the developer did not take any step, the landowner has come forward with the present complaint.

          Needless to say, in accordance with the observation of the Hon’ble Supreme Court reported in 2008 (10) SCC 345 (Faqir Chand Gulati – vs. – Uppal Agencies Pvt. Ltd. & Anr.) such a complaint is maintainable before the Consumer Forum.  The unchallenged testimony of the Complainant clearly demonstrates that the developer is deficient in rendering proper service as per provisions of Section 2(1)(g) of the Act read with 2(1)(o) of the Act.  Therefore, the Complainant is entitled to compensation in the facts and circumstances of the case on the ground of loss suffering by him due to deficiency in services on the part of the developer being service provider. 

The Complainant has stated that he has sustained a loss of Rs.30,00,000/-.  But in the petition of complaint, he has failed to explain how he has suffered such a huge loss.  The record reveals that at the time of purchase, Complainant paid a consideration amount of Rs.18,90,000/-.  It is true that due to masterly inactivity on the part of the developer to fulfil their obligations, Complainant had to suffer but taking into consideration the nature of deficiency and other rendering circumstances, in my view, a compensation of Rs.3,00,000/- in the facts and circumstances of the case would meet the ends of justice which must be paid by the OPs within one month, otherwise the amount shall carry an interest @ 12% p.a. would meet the ends of justice.

          In the result, complaint succeeds in part.

          It is accordingly,

ORDERED

          That the instant complaint is allowed exparte with a cost of Rs.10,000/-.

          The Ops are jointly and severally directed to make payment of Rs.3,00,000/- towards compensation for harassment and mental agony within one month from date, otherwise the amount shall carry an interest @ 9% p.a. from this date till its full realisation.

          The Registrar of the Commission is directed to send a copy of this order to the Opposite Parties at free of costs by Speed Post for information and compliance forthwith.