Case of the complainant in brief is that the complainant entered into an agreement for development with the opposite parties on 30.08.2017 at a piece of land measuring 2 cattahs 10 chittacks situated at Mouza-Sinthi ward no.-11 Dumdum Municipality holding no.39 Bedia para Lane, P.S.-Dumdum Kolkata-700077, for a term of 18 months from the execution of development agreement. It is stated in the petition of complaint that as per development agreement in case where ‘lift’ is not possible then the complainant shall be entitled to get entire first floor with facilities mentioned in the agreement and/or the vacant roof of the top floor of the proposed building. It is further stated in the petition of complaint that the complainant will get non refundable amount of Rs. 60, 00,000/- from the OP developer within one year from the date of sanction of municipality of building plan. It is further stated that the complainant shifted in his owners allocation on 29.04.2019 but till date the OPs neither handed over the possession letter of the owners allocation nor the balance non refundable amount of Rs. 10, 00,000/- has been given to the complainant. It is stated by the complainant that some interior work was not done by the OPs as per the agreement. On several occasions the complainant requested the OP to refund the said amount and at last by sending Advocates letter dated 28.09.2020 requested the same but the said letter returned with a postal endorsement “not claimed” on 03.10.2020. Finding no way the complainant filed this case praying for direction upon the OPs to pay Rs. 10,00,000/- with interest and to hand over the possession letter of owners allocation as per agreement dated 30.08.2017, to pay compensation of Rs. 2,00,000/- and litigation cost of Rs. 35,000/-.
During the pendency of this instant case the complainant who has filed this instant case passed away and his legal heirs (complainant no1&2)are the present complainats in this case.
OPs have contested the case by filing their written version, stating inter-alia, that the complainant took possession of the owner’s allocation by receiving possession letter from the OPs with an undertaking that he would sign on it after verifying the same by his advocate but till date the complainant did not hand over the possession letter to the OPs for which they could not transfer the rest amount to the complainant. The OPs have further stated that they purchased materials to complete the owners allocation as per direction of the complainant and did some extra work for which around Rs. 2, 25,000/- would be adjusted from the remaining amount payable to the complainant. The OPs further stated that they communicated with the complainant’s son each and every time in respect of handing over the possession of the owners allocation and finally they have given possession of the land owners allocation to the complainant as well as possession letter in respect of the land owners allocation which the complainant refused to sign. As such the OPs have no deficiency in providing service. Accordingly they prayed for dismissal of the case with cost.
Points for determination
- Whether the OPs are deficient in providing service to the complainant.
- Whether the complainant is entitled to get the relief as prayed for.
Decision with reasons
- The complainant alleged that the OPs have not handed over him the possession letter in respect of his owners allocation. On the other hand the OPs stated that they have already handed over the possession alongwith the possession letter in respect of owners allocation to the complainant. Only the signature of the complainant is to be put on the said letter/certificate. In this respect OPs have filed the certificate of possession from where it appears that OPs prepared the possession letter dated 16.02.2019 only the acceptance of the same is remained blank which proves that the complainants did not accept the same.
Further the complainants alleged that OPs did not pay Rs 10, 00,000/ as per agreement. It is apparent from the agreement dated 30.08.2017 that complainants are entitled to get interior fittings etc. as per schedule C of the said agreement. In case of extra work the complainant would pay extra charge. OPs submitted that they spent Rs.2, 25,000/ for extra work and in this respect only two receipts of Rs 7,177/ dated 28.11.2018 and Rs6,577/ dated 13.12.2018 are filed by them from where it can not be ascertained that those amount was spent for extra work. It is further apparent from the said agreement that OP promised to pay Rs60,00,000/ to the complainants out of which they paid Rs 50,00,000/. Therefore,Rs10,00,000/ is still payable by the OP. Deviation from the promise to pay remaining amount to the complainants amounts to gross deficiency on the part of the OPs.
Point no1 is decided accordingly.
- From the certificate of possession filed by the OPs it appears that the OPs handed over the possession of the owners allocation in the year 2019. Till then Rs. 10, 00,000/- is lying with the OPs hence OPs are liable to pay compensation and further the in action of the OPs compelled the complainants to file this case. Hence OPs are liable to pay litigation cost to the complainants.
Point no. 2 is decided accordingly.
In the result the petition of complaint succeeds.
Hence, it is,
Ordered
that the complaint case being no. 8/2021 is allowed on contest against the OPs with cost.
The OPs are directed to pay Rs. 10, 00,000/- to the complainant within 30 days from this date of order. OPs are further directed to pay Rs. 30,000/- as compensation and Rs. 20,000/- as litigation cost to the complainant within 30 days from this date of order failing which the entire amount shall carry interest @12%p.a.
Let a plain copy be given to the parties free of cost as per CPR.s
Dictated and Corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
