DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. _79_ OF ___2014_
DATE OF FILING : 28.2.2014 DATE OF PASSING JUDGEMENT: 2/08/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : Sri Sreeraj Das, son of Sri Tapan Das of 32/33, Pashupati Bhattacharjee Road, P.S Behala, Kolkata -34.
-VERSUS -
O.P/O.Ps : M/s C.D Enterprises, represented by its Proprietor- Sri SujitDas ,son of Sri Ajit Kumar Das of P-32, Senhati Colony, P.S Behala, Kolkata-34.
Proforma O.P : 1. Satyajit Saha, son of Mihir Lal Saha of Flat no.2 Second Floor, 2/17, Netaji Nagar, P.S Jadavpur, Kolkata -92.
2. Arup Das, son of late Hriday Das of B-2, 146/1, V.K Nagar, Durgapur, P.S Durgapur, Dist. Burdwan, Pin- 713210.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
This is an application under section 12 of the C.P. Act, 1986 filed by the complainant on the ground that he is an absolute owner of the land measuring 1 cottah 15 chittaks 19 sq.ft situated at 9V/1, Pashupati Bhattacharjee Road, P.S Behala, Kolkata-34 being plot no.26A, Municipal Ward no.116. It is the further case of the complainant that in order to develop the said land he engaged the developer who is O.P-1 for the purpose of residential building on the said piece of land on mutual decision and a joint venture agreement was executed on 11th January, 2010 on condition that developer shall erect entire G+3 storied building , car parking space etc. at his own cost. Apart from that, one Joint Power of Attorney was executed by the land owner in favour of the developer which was duly registered with the office of the District Sub Registrar II at Alipore, South 24-Parganas being Registration no. 03654/10 IV-227/10 empowering him to do the acts and deeds. The photocopy of the development agreement and power of attorney are annexed in Annexure A and B. it has claimed that owner’s allocation was 40% of the total sanctioned area at the said proposed building in the form of entire first floor of the building with proportionate share of the land and all common facilities and amenities etc. and one covered car parking space measuring 150 sq.ft on the ground floor will be given to the owner. Apart from that, land owner will get Rs.3 lacs in terms of the development agreement. The developer shall issue notice to the complainant for delivery of the entire first floor flat having electric wiring, sewerage water pipe line, overhead tank etc. which is the owner’s allocation. It has alleged by the complainant that O.P failed and willfully neglected to complete the construction of the flat and deliver possession of the entire first floor and covered car parking space within the stipulated period of 18 months from the date of plan sanctioned by the KMC which is a gross violation of the terms of the development agreement. It has alleged that on query it has detected that construction work is still pending of the first floor flat i.e fixing of doors, windows inside and outside plastering work, inside and outside painting, Electrical Wiring, fixing of collapsible gate, sewerage line, installation of pipe fittings etc. installation of separate new electric connection, construction/completion of garage works, marble finishing of stair case from ground floor to first floor etc. Complainant is compelled to send a letter to cancel the power of attorney on 19.8.2013 nominating and appointing Sri Sujit Kr. Das the proforma O.P which was executed on 29.4.2010 and executed and registered and informed vide letter dated23.8.2013 as well as by way of Dasti Service. Photocopy of the said letter is annexed as annexure C. It has alleged that inspite of revocation of power of attorney on 19.1.2013 complainant came to learn that the O.P wrongfully entered into an agreement for sale with Mr. Arup Das and Satyajit Saha for sell of second and third floor flats of the building at a consideration to the tune of Rs.18 lacs only and also acknowledged the part consideration money. Since the O.P has not completed the first floor flat and even not paid the entire cash amount, notice was issued but no action was taken on the part of the O.,P and he has violated the terms and conditions of the Development Agreement. So, he is guilty of deficiency of service and unfair trade practice since after revocation of power of attorney he has transfer second floor and third floor flat to the third parties and accepted part payment. Hence, this case with a prayer to direct the O.P to hand over entire first floor flat in fully habitable condition upon completion of the pending works which the estimated cost of Rs.5 lacs together with covered car parking space and to deliver the occupancy certificate of KMC and compensation Rs.6 lacs , direction be given to the O.P for payment of balance amount of Rs.3 lacs and cost Rs.15000/-.
The Proforma O.P nos. 1and 2 are contesting the case by filing written version and denied each and every allegations made in the claim petition save and except what are matters of record. It is the positive case of the O.Ps that due to cancellation of the power of attorney by the complainant he is unable to complete necessary works of construction to finish the flat. He has also denied that he is aware that power of attorney was cancelled and no notice for cancellation of power of attorney was sent to them and it was within his knowledge after receiving the claim petition. It is the further case of the O.Ps that due to quarrel between the developer and the complainant the pending work is being delayed ,although they are paying bank installment being a purchaser and building is going to be damaged for delay. Accordingly, he has prayed that if the complaint case be allowed, then their right and grievance must be protected and leave may be granted.
The O.P contested the case by filing written version and denied all the allegations barring the specific admission made by him. It is the specific case of the O.P that total sanctioned area of the said flats with car parking space is 204.05 +239.06 sq.mt= 2572.29 sq.ft and the said owner/the complainant is to get 40% share i.e 40% of 2572=1028 sq.ft and the area of the entire first floor with car parking space is 881.86 sq.ft.So the market value of remaining portion i.e 146.14 sq.ft is Rs. 1300/- per sq.ft and O.P is ready to pay in cash Rs.1,89,982/- according to the said agreement dated 11.1.2010 i.e 1300x 146.14= 1,89,982/- and all other allegations contrary thereto and inconsistent therewith are denied. The O.P has claimed that the list of pending works and its project cost is Rs.77,200/-. But the amount claimed by the complainant is denied. The O.P has denied the valuation of the flat claimed by the complainant. It is the specific case of the O.P that there is no schedule of the first floor flat along with 150 sq.ft car parking space in the complaint petition. So, it is very difficult which portion complainant interested to claim specifically. Accordingly this suit is undervalued and not maintainable in the eye of law at all. Hence, the O.P prays for dismissal of the case with cost.
Points for decision in this case is whether (i) the complainant filed the case showing under valuation to get the jurisdiction of this Forum (ii) whether the principal O.P made any deficiency of service or unfair trade practice in this regard.
Decision with reasons
Point no.1 :- Although in the written version the O.P claimed that valuation has been shown by the complainant is undervalue. So, onus is upon the O.P to prove the same by filing believable documentary evidence i.e valuation of the flat from the Registration Department, Government of West Bengal at the relevant point of time and current rate. But O.P did not take any attempt to prove the same. So, the O.P has failed to prove his part of allegation leveled in the written version against the complainant. Thus this point is decided in negative.
Point no.2:- Although the O.P ha claimed that the valuation of the incomplete work will be Rs.77,200/- , there was no basis and complainant has claimed Rs.5 lacs ,for which Architect and Valuer of Hon’ble High Court ,Mr. S.K Sarkar was appointed as an Engineer Commissioner who has visited the place in presence of both parties and details have been mentioned in the order regarding the incomplete works i.e flooring of the lobby, white glaze sanitary fixtures of standard quality not provided in all the toilets. The internal pipe fittings not concealed, good quality C.P fittings not provided, loft in the top of the toilet is pending, Electric conceal wiring except certain common areas with finolex wire with Havel switch and MCP is pending. Overhead storage tank of sufficient capacity of 1000 ltrs. And separate tank for the first floor and separate pump is pending. No lighting facilities in staircase/garage and also in entrance as well as garage gate. He has assessed the cost of the pending works Rs.2, 17,682.00 and he has annexed one plan of first floor. So, regarding the cost of the pending work we have to believe the independent report of the Engineer Commissioner who has no inimical relationship with the O.P and no friendship with the complainant. So, why being a technical person and Architect/Engineer approved by the Hon’ble High Court will submit a false and fake report.
Thus the value of the remaining work is considered as Rs.2,17,682/- , neither Rs.77,200/- nor Rs.5 lacs.
It is true that in terms of the development agreement the developer/O.P has to deliver possession within 18 months from the date of sanction of the building by the KMC and sanction was made on 18.3.2011 by the KMC and proposed building was completed on 18.9.2011. This is clearly a deficiency of service by the developer/O.P by not completing the same within 18 months on and from 18.3.2011 and complainant being a land owner failed to get the said land within the stipulated period, particularly when we are aware in terms of the judgment passed by the Hon’ble Supreme Court in 2008(5) at page 76 that the land owner is also a consumer. It is also well known to us that Hon’ble National Commission in a reported decision reported in 2016(3) CPR at page 214 have observed that Consumer Protection Act is one of the benevolent piece of Legislation in India to protect large body of Consumers from exploitation.
Thus we find that there is a glaring example of deficiency of service and taking the land from the land owner the developer/O.P exploited the land owners years together by not giving peaceful possession of the flat and fulfilling the other terms and conditions of the development agreement and we find that still large number of unfinished work is pending in the said flat . it is also mentioned that mere offer of a flat is not suffice that possession has been delivered, particularly when large number of common utility for a habitable flat has not yet b3een done by the O.P developer which is evident from the report of the Engineer Commissioner. So, that possession letter has no value in the eye of Law. Rather we hold that the said possession letter has been given only to save the skin of the developer, but in the eye of Law it will not be accepted. A reported judgment of Hon’ble National Commission also speaks to that effect i.e 2009(2)CPR 299. So, complainant is entitled to get his allocation of schedule flat in terms of the development agreement before giving any flat to the intending purchasers. The developer has to deliver the owner’s allocation first and thereafter he is permitted to hand over the possession of the flat to the intending purchasers, not before that. If the developer already delivered possession to the third party, then that possession will not be considered in the eye of Law and in that effect land owner is not bound to execute the same.
It is true that developer has made lot of irregular activities ,that is why, complainant has rightly revoked the Power of Attorney on 21.7.2010 and inspite of that developer on 19.8.2013 entered into an agreement for sale with the Proforma O.Ps in terms of the agreement. So, in all respect O.P/developer acted not only deficiency in service, but also unfair trade practice towards the proforma O.Ps.
In the above findings, we hold that the complainant has been able to prove his allegation against the developer/O.P .
Accordingly, it is
Ordered
That the application under section 12 of the C.P Act is allowed on contest against the O.Ps.
O.P/developer is hereby directed to hand over owner’s allocation after completion in habitable condition in the guideline mentioned in the report of the Engineer Commissioner within 30 days from the date of this order, alongwith possession letter failing which developer/O.P is hereby directed to hand over the possession of the flat along with fresh possession letter to the complainant along with Rs.2,17,682/- , assessed by the Engineer Commissioner appointed by this Bench , along with interest @18% p.a on and from 11.7.2016 (submission of report), since the cost of the materials is already in hike due to GST ,within one month from this date, failing which complainant is at liberty to execute the order through this Forum.
The O.P/developer is hereby directed to hand over the completion certificate issued by the KMC positively within 45 days from the date of this order to the complainant along with compensation of Rs.6 lacs for the harassment and mental agony suffered by the complainant for the long years after completion of 18 months from the date of sanction of the plan by the KMC ,relying the reported decision 2011(1)CPR page 161 of Hon’ble National Commission, and litigation cost of Rs.10,000/- .
No order is passed against the Proforma O.Ps.
It may be mentioned here that if the developer/O.P failed to comply the above mentioned orders in time as noted above, then complainant is at liberty to execute the order and in that event further interest will carry @7% p.a on the total decreetal dues from the date of default till its realization.
Let a plain copy of this order be handed over to the complainant , O.Ps free of cost.
Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act is allowed on contest against the O.Ps.
O.P/developer is hereby directed to hand over owner’s allocation after completion in habitable condition in the guideline mentioned in the report of the Engineer Commissioner within 30 days from the date of this order, along with possession letter failing which developer/O.P is hereby directed to hand over the possession of the flat along with fresh possession letter to the complainant along with Rs.2,17,682/- , assessed by the Engineer Commissioner appointed by this Bench , along with interest @18% p.a on and from 11.7.2016 (submission of report), since the cost of the materials is already in hike due to GST ,within one month from this date, failing which complainant is at liberty to execute the order through this Forum.
The O.P/developer is hereby directed to hand over the completion certificate issued by the KMC positively within 45 days from the date of this order to the complainant along with compensation of Rs.6 lacs for the harassment and mental agony suffered by the complainant for the long years after completion of 18 months from the date of sanction of the plan by the KMC ,relying the reported decision 2011(1)CPR page 161 of Hon’ble National Commission, and litigation cost of Rs.10,000/- .
No order is passed against the Proforma O.Ps.
It may be mentioned here that if the developer/O.P failed to comply the above mentioned orders in time as noted above, then complainant is at liberty to execute the order and in that event further interest will carry @7% p.a on the total decreetal dues from the date of default till its realization.
Let a plain copy of this order be handed over to the complainant , O.Ps free of cost.
Member President
