The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is at the instance of a landowner against a Proprietorship Construction Firm (Opposite Party No. 1) and its Proprietor (Opposite Party No.2) on the allegation of deficiency in services on the part of Opposite Parties in a dispute of housing construction.

          In a nutshell, Complainant’s case is that on 10.07.2013 he entered into an agreement with the OPs for development of a piece of land measuring about 2cottahs 12 chittaks of land and two-storied building standing thereon lying and situated at Premises No.40G, Dharmatala Road, P.S.- Kasba, Kolkata – 700042, Dist- South 24 Parganas within the local limits of Ward No.67 of Kolkata Municipal Corporation (KMC).  As per terms of the agreement, after completion of the proposed building, the complainant is entitled to entire 2^nd floor measuring about 1156 sq. ft. super built up area, a self-contained flat measuring about 594 sq. ft. super built up area on the ground floor and one open car parking space of the premises and in addition to the same, the developer would pay a sum of Rs.5,00,000/-.  On the same day i.e. on 10.07.2013 the parties executed a Supplementary Agreement where it was agreed that the complainant shall receive a sum of Rs.25,00,000/- as non-refundable amount as negotiation charges.  The complainant states that as per terms of the Agreement, the construction of the building should have been completed within 24 months from the date of sanctioned of building plan with grace period for another six months but the OPs have failed to start the construction and only paid Rs.9,00,000/- out of Rs.30,00,000/- and in this regard, all the requests and persuasions including legal notice dated 24.06.2017 went in vain.  Hence, the complaint with prayer for following reliefs, viz. – (a) an order of payment of Rs.21,00,000/- together with interest @ 12% p.a. from date till recovery; (b) an order for payment of Rs.71,91,760/- as the present market value of owner’s allocation; (c) Rs.5,00,000/- as compensation and (d) Rs.50,000/- as litigation cost etc.

          Despite service of notice upon OP No.1 on 10.02.2018 and OP No.2 on 06.02.2018 neither of them has appeared nor filed written version.  Under compulsion, the complaint was heard ex-parte.

          In support of his case, complainant tendered evidence through affidavit.  Besides the affidavit, complainant has also relied upon Development Agreement dated 10.07.2013, Supplementary Agreement executed on the self-same date and copy of Power of Attorney dated 10.07.2013.

          On perusal of petition of complaint, evidence on affidavit and the documents annexed therewith, it emerges that the complainant had entered into a Development Agreement with the OP No.1 Construction Firm represented by its sole Proprietor i.e. OP No.2 for development of a property by raising a multi-storied building lying and situated at Premises No.40G, Dharmatala Road, P.S.- Kasba, Kolkata – 700042, Dist- South 24 Parganas within the local limits of Ward No.67 of Kolkata Municipal Corporation (KMC).  On 10.07.2013 the complainant has also executed a registered Power of Attorney authorising the opposite parties to start construction.

          In accordance with Schedule ‘B’ – to the said agreement, on completion of the proposed building in all respect by the developer at its own cost and expenses, in lieu of the land of the said premises, the developer shall allocate and handover to the owner the following accommodation:-

1.  A self contained flat, being the entire 2^nd floor measuring 925 sq. ft. built area, be the same or a little more or less (1156 sq. ft. super built up area) of the proposed building;
2.  A self contained flat measuring 475 sq. ft. built area (594 sq. ft. super built up area) on the ground floor of the proposed building;
3.  One open car parking space on the northern side of the said premises outside the proposed building together with undivided proportionate share of the land.  

In addition to the same, the developer would pay Rs.5,00,000/- only to the landowner as non-refundable amount. 

On that date, the parties had entered into a Supplementary Agreement and in terms of the said Supplementary Agreement, the complainant shall receive Rs.25,00,000/- only as non-refundable amount as negotiation charges.

Now, as per Clause 13.1, the developer agreed to construct the building within 24 months from the date of sanctioned of building plan with a grace period for six months.  It was also agreed by developer in Clause 13.9 to the Agreement that till handing over possession, the developer shall pay the rent or license fee to the owner for giving such accommodation.

The complainant has specifically alleged that the period for construction work together with grace period expired but even the plastering of outer as well as inner walls of the building has not even completed till date.  In this regard, the notice issued by the complainant through his Advocate on 24.06.2017 and 28.06.2017 thereby claiming of balance amount and calling upon for handing over owner’s allocation went in vain.  The statement made by the complainant remains uncontroverted and unchallenged. 

Considering all the above, I think the complainant has been able to substantiate his case.  However, I do not find any reason why the complainant has made a prayer for payment of Rs.71,91,767/- as the present market value without praying for specific direction upon the OPs to complete construction within specified period.  From the statement of the complainant, it reveals that plastering of the outer as well as inner walls of the building has not even completed till date meaning thereby the OPs have already initiated construction but could not complete the same. 

In view of the above, prayer for payment of Rs.71,91,760/- as the present market value does not stand.

          However, on having a look to Clause 18.1 (Penal Clause) it appears that after expiry of 24 months of stipulated period and the grace period from the date of sanction of building plan, the developer shall pay a sum of Rs.10,000/- to the owner as penalty and/or damage per month till completion of the project.  Accordingly, complainant is entitled to the same.  Besides the same, complainant is also entitled to compensation on account of mental agony and harassment suffered by him which I assess at Rs.1,00,000/-.  As the situation compelled the complainant to lodge complaint, the complainant is entitled to litigation cost which I quantify at Rs.10,000/-.  The Development Agreement and the Supplementary Agreement indicate that the OPs have already paid Rs.9,00,000/- out of total amount of Rs.25,00,000/- payable by them and therefore, the OPs are still liable to pay an amount of Rs.16,00,000/-.

          In view of above discussion, the complaint is allowed ex-parte with the following directions:-

1. The Opposite Parties are jointly and severally directed to make payment of Rs.10,000/- per month as penalty after expiry of two years from the date of obtaining sanctioned building plan in favour of the complainant till the date of handing over possession;
2.  The Opposite Parties are jointly and severally directed to pay the balance agreed amount of Rs.16,00,000/- to the complainant;
3. The Opposite Parties are jointly and severally directed to pay compensation amounting to Rs.1,00,000/- in favour of the complainant;
4. The Opposite Parties are jointly and severally directed to make payment of Rs.10,000/- as costs of litigation;
5.  The above payments must be paid within 60 (sixty) days from date positively.