PER: HON’BLE MTS. DIPA SEN (MAITY), MEMBER
The present complaint under section 17 of the Consumer Protection Act, 1986( as amended upto date ) is filed by the land owner smt.Bharati Ganguly w/o Sri Pallab Ganguly, against the Developer/ builder on the allegations of deficiency in services on the part of the developer in a consumer dispute related to housing construction.
The brief fact of the case is that being the sole owner of a piece of or parcel of land measuring 1 cottahs 09 chittaks 00 sq ft. of Municipal Premises no. 30, 65 Vidya Sagar Sarani, Kolkata 700008,KMC ward no. 123, Assessee no. 41-123-18-0030-3, the complainant has entered into an agreement on 08.05.2015 with the opposite party for development of the said premises by masonry building consisting of several self contained flats / units after demolishing the existing two storied structure which was in existence at the said premises. The said Development agreement was registered on 08.05.2015 in the office of the District Sub Register II at Alipore, South 24 Pgs. As per the said development agreement the complainant being the land owner would obtain entire 2nd floor of the propose building ie. 515 sq ft. of built up area along with a sum of Rs. 4,00,000/.The opposite party developer has already paid Rs. 3,00,000/- and it was further decided that the balance amount of Rs. 1,00,000 /-shall be paid by the developer to the complainant after getting the sanctioned building plan from the competent authority. As per the said agreement it was also agreed between the parties that the developer will construct and complete the building within a period of 12 months from the date of obtaining sanction plan. It was further decided that time for completion of the said construction work shall be extended for another six months in case of’’ force majure’’ and it was mentioned that the time shall be the essence of contract. It was further settled and agreed between the parties that the opposite party developer shall pay the sum of Rs. 5,000/- per month to the complainant towards alternative rental accommodation during the period of construction of the new building at the said premises. Pursuant to the said agreement the developer has started payment of Rs. 5,000/- per month since month of February, 2017, but the developer has stopped the payment of Rs.5,500/- towards the rent of alternative accommodation of the complainant since month of August,2017. The said monthly rate was further enhanced to Rs. 6,000/- from month of Febrary,2018. Even after expiry of 38 months of the said development agreement the opposite party developer has failed and neglected to complete the construction work of the proposed building and to deliver the possession of the said allotted portion of the proposed building. Furthermore, the opposite party developer has failed and neglected to pay the amount of Rs. 1,00,000/- to the complainant within the stipulated period mentioned in the development agreement dated 09.02.2017. The complainant has been suffering immensely for no fault of her part. Hence, this case has been filed by the complainant for getting redressal of his grievences.
It appears from the order sheet that despite proper service of notice the opposite party /Developer did not care to appear before the Commission and did not file written version within the stipulated period or nor taken any other step. As such, the case was fixed for ex-parte hearing on 26.04.2019.
The record reveals that the complainant has not tendered any separate evidence on affidavit but adopted the petition of complaint supported by affidavit and the documents annexed therewith as evidence.
The case is taken for ex-parte hearing .Perused all documents and heard the ld. Advocate for the complainant.
Ld. Advocate for the complainant submitted that even after expiry of the stipulated period as per the development agreement, the opposite party did not complete the construction work of the proposed building and thereby did not deliver the possession of the owner’s allotted portion and did not even pay the balance amount of premium of Rs. 1,00,000/-to the complainant. Under such compelling situation, the complainant has sent several letters dated 04.09.2017, dated 15.11.2017 and has sent one legal notice on 02.01.2018 to the opposite party/developer . But the opposite party /developer even after receiving of those letters and legal notice did not bother to reply against the said notice and remained silent .As per the said agreement dated 08.05.2015 it was also decided by and between the parties that the opposite party will pay monthly rent of the alternative accommodation during the period of construction but the opposite party has stopped the said payment from month of August, 2017. The opposite party is negligent as not taken any responsibility to complete the construction work and hand over the possession of owner’s allocation and provide the completion certificate from the competent authority.
In this present case the ops. did not take part in hearing . No W/V has been filed. Hence, the averment made by the complainants remained uncontroverted and unchallenged.
The materials on record clearly demonstrate that the complaint is a consumer u/s 2(1) (d) of Consumer protection Act, 1986, as he has hired the service of the opposite party on his own land in the form of consideration in relation to housing construction of the proposed multistoried building.
With the above discussion, we therefore come to the conclusion that the opposite party has deficiency in service as did not hand over the possession of entire 2nd floor of the propose building ie. out of total available floor area ratio as owner’s allocated portion as per the agreement. On careful perusal of clause no. 14, it appears to us that the developer/opposite party is duty bound to complete the owner’s allocation portion in all respect including permanent domestic water and sewerage connections, electricity connection as well as common areas and facilities and make the same fully habitable for user within 12 months from the date of obtaining sanction plan. It also appears from perusal of clause no. 2 of the agreement dated 08.05.2015 that the developer /op. shall make payment of Rs. 5,000/- per month till date of hand over of the possession. But we do not find any scrap of paper / rent receipt produced as best evidence from where we can ascertain that the present rate has been increased to 6,000/- per month or the complainant is really staying in such a rented accommodation. Hence, in absence of any such evidence we cannot take any decision on this point.
With the above discussion, the complaint is allowed ex-parte with the following directions:
i)The opposite party is directed to deliver peaceful vacant possession of the entire owner’s allocation of 2nd floor area in habitable condition in all respect as mentioned in the agreement dated 08.05.2015 within 90 days from the date of communication of this order.
ii) The opposite party is directed to obtain completion certificate from the appropriate authority and hand over the same to the complainant within 90 days from the date of communication of this order.
iii) The opposite party / developer is directed to pay the balance amount of Rs. 1,00,000/-to the complainant within 60 days;
iv)The opposite party /developer is further directed to pay Rs.2,00,000/-to the complainant as compensation for his mental agony and harassment for non delivery of possession of the owner’s allocation;
v) The Opposite Party/Developer is also directed to make payment of Rs.10,000/- to the complainant as litigation cost;
vi) The above payments must be paid within 60 days from date, in default the entire amount of Rs.3,10,000/- (Rs.1,00,000/- + Rs.2,00,000/- + Rs.10,000/-) shall carry interest @ 9% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of the same to the parties at once for information and compliance.
