Dt. of filing- 13/12/2017

Dt. of Judgement- 05/07/2019

Mrs. Balaka Chatterjee, Hon’ble Member.

          This petition  of complaint filed under Section 12 of the  Consumer Protection Act, 1986 by Sri Swapan Majumder alleging deficiency  in service on the part of the Opposite Parties ( referred  to as OP hereinafter )  namely (1) M/s.  Creative Constructions (2) Sri Subrata Mukhoadhyay (3) Smt. Sharmila Banerjee and impleading  (4)  Debjani Majumder (5) Sri Salil Kumar Majumder (6) Smt. Arati Majumder (7) Sri Amilesh Majumder (8)Smt. Mousumi Mitra as Proforma OPs.

          Facts in brief are that one Sushil Kumar  Majumder being  owner of a piece of land  measuring about 9 cottah 1 chittaks  and  20 sq.ft at premises no. 102 A, Jyotish Roy Road, P.S. – Behala  within limits of Kolkata Municipal Corporation, Ward No. 117, Kolkata – 700 053 executed  a registered will in favour of  his four sons i.e. the complainant in this consumer complaint, Predecessor- in- interest of OP Nos. 6,7 & 8 , husband of  OP No.4  & OP No.5 on 5^th January 1966 and after demise of said Sushil Kumar Majumder  on 08.12.1968 his four sons  took probate of the will on  20.03.1972 from the Court of the Ld. District Judge at Alipore and  the complainant along with his three brothers became owner of the said property  specifically each of them became entitled for  1/4^th  of the said property  but subsequently eldest son  of Sushil Kumar Majumder namely Sunil Kumar Majumder died  intestate on 01.07.2009  leaving behind his  wife ( OP No.4  herein) and son namely Indranil Majumder as his legal heirs. The complainant has stated that the co-owners of the said  property decided amicably to execute and register a partition deed and the same was registered on 27.07.2011 before the District Sub-Registrar – II, Alipore and by virtue of said partition deed said premises  has been demarcated and numbered as  102  Jyotish Roy Road and  102A, Jyotish Roy Road and one Indranil Majumder  Son of Sunil Majumder, Salil Kumar Majuimder, Swapan Kumar Mazumder and Anil Kumar Majumder  became owners of  the piece of land measuring about 4 cottah 8 chittaks  35 sq.ft.  being premises no.102, Jyotish Roy Road and Smt. Debjani Mjumder  W/o Sunil Majumder, Salil Kumar Majumder, Swapan kumar Majumder and Anil Kumar Majumder became owner of the piece of land  measuring about 4 cottah 8 chittaks and  3 sq.ft bearing  premises no.102A, Jyotish Roy  Road and said Anil Kumar Majumder  died  intestate leaving  behind his  wife Arati Majumder, son Amitesh Majumder and daughter  Mousumi Mitra as his legal heirs.  It is stated  by the complainant  that the owners of the premises no.102, Jyotish Roy Road entered into a joint Venture Agreement  on 24.04.2012 with OP Nos. 1, 2 & 3 under some terms and conditions  and as per terms and conditions the owners were entitled to get 4 flats one in each floor of the proposed  building to be constructed by OP Nos. 1 – 3, non-refundable amount of Rs. 3,00,000/- and security deposit of  Rs. 5,00,000/- ( refundable on receiving possession).  It is  further stated by the complainant  that the owners of the premises no.102 Jyotish Roy  Road executed a General Power of Attorney in favour of the OP Nos. 1 – 3 and  by virtue of  said Joint Venture Agreement  of Power of Attorney the OP Nos.1 – 3  started developing the property and being satisfied  the owners of premises no.102A, Jyotish Roy Road also intended to develop the said property approached OP Nos. 1 -3 but Development Agreement in respect of premises no. 102A, Jyotish
Roy Road could not be executed  as there was some shop owners running business  at the said property and negotiation was going on for settlement of the issue and to obtain vacant possession  and the complainant being co-owner of both the premises opted  for two flats to be constructed at premises no. 102, Jyotish
Roy Road in lieu of his allocation at  102A, Jyotish Roy Road . To settle the matter a  meeting was convened on 23.11.2013 and it was  agreed that OP nos. 1-3  would pay Rs. 6,00,000/- to the owners for settlement of the disputes with shop owners of premises no.  102A, Jyotish Roy Road, would  pay Rs. 4,00,000/- as non-refundable  amount, would deposit Rs. 5,00,000/- as refundable deposit and ground floor of premises no. 102, Jyotish Roy Road would be remained with OP Nos. 1 -3. Ground floor of the premises no.102A,  Jyotish Roy Road would be remained with land owners, Salil Kumar Majumder will be entitled  for  2 flats at premises no.102A, Joytish Roy Road and  OP Nos. 6, 7 & 8 shall be entitled to 2 flats.

          It is specific allegation of the complainant that after completion of proposed  building at premise no.102A,Jyotish Roy Road, the OP nos. 1-3 failed and neglected  to handover possession of  1/4^th portion of ground floor to the complainant and finding no other  way the complainant  sent demand notice dated 19.05.2017  to which  OP sent reply dated  05.06.2017 and being aggrieved  the complainant  cancelled  General Power of Attorney dated 29.04.2016  executed in favour of OP Nos. 1 -3.

          It is also alleged by the complainant  that the OP nos. 1 – 3 constructed an illegal  fountain  in front of the car parking space instead of constructing boundary wall and completion of  beautification work which creates  inconvenience to the complainant   and further  the OP Nos. 1 – 3 had filed a civil suit being no. T.S. No.3699 of 2016 and, therefore, the complainant by filing the instant consumer complaint has prayed  for directions upon the OP Nos. 1 – 3 to pay Rs. 1,50,000/- for wilful  delay in handing over  possession  of 1/4^th portion of ground floor  102A, Jyotish Roy Road,  to handover physical possession of the complainant’s  allocation in the said premises  i.e. 168 sq.ft. car parking space,  89 sq.ft.  shop room  of  113 sq.ft. covered space to complete  the residuary  work i.e.  construction of boundary  wall  and demolition of the  fountain, to pay  Rs. 30,000/-  towards cost of litigation.

          The complainant annexed Development Agreement dated 05.05.2014 Supplementary Agreement dt. 05.05.2014, letter dated 19.05.2017 issued by complainant to the OP No.1, reply dated 05.06.2017 Revocation of General Power of Attorney ft. 05.05.2016 letter to the Technical Adviser dt. 25.08.2017. Track report .

          The OP Nos. 1 -3 contested the case by filing written version stating inter alia, that on the strength of Development Agreement dated 05.05.2014 and Power of Attorney dt. 30.04.2014   & 05.05.2014 obtained sanctioned building plan on 30.10.2014 and received possession of the land on 26.02.2015  and thereafter started construction. It is stated by OP Nos. 1 -3 that all the co-owners of the  premises no.102A,  Jyotish Roy Road  Kolkata – 700 053  received possession letter and put their signature thereon but the complainant refused to do the same. The OP Nos. 1 – 3 have stated that the complainant has been handed over  two flats on 02.05.2014  from owners allocation at premise no.102 , Jyotish Roy Road as desired by him but inspite of receiving possession the complainant did not refund the refundable amount of Rs. 2,50,000/- deposited with him and, moreover, started  pressurising to forego the amount and to pay further  amount and cautioned that he would  create obstruction  in construction work . It is further stated by the OP Nos. 1, 2 and 3 that after completion of 80% of the proposed work the OP Nos. 2 & 3 , on their  utter surprise, received letters dt. 5.5.2016 from the  end of the complainant  intimating  revocation  of Power of Attorney  on the ground of dissatisfaction and  misuse of the Power of Attorney and, in reply to the said letter, the OP Ns. 2 & 3 sent a letter dt. 17.05.2016 categorically  controverting and, thereafter, intimated the matter to the other   co-owners for determining  next course of action and on receiving  assurance that they would take legal action against the  complainant  instituted a suit being no. T.S. No. 1344 of 2016 before Ld. 5^th Civil Judge  (Jr. Divn.)  at Alipur but subsequently decided  not to proceed with the case. It is  stated  by the OP Nos. 1 – 3 that a case  was filed u/s.420 of the  IPC against the complainant  being  Behala Police Station  Case No. 451 of  2016  where the  complainant appeared and was granted  bail and thereafter a negotiation was  going on between the complainant and  OP Nos. 2 & 3  for settlement of  dispute regarding  refund of refundable deposit but even before  settlement of dispute  the  complaint filed this complaint. It is specifically denied by the OPs that they have been wilfully neglected to deliver possession of  the  1/4^th  share of ground floor of the building  constructed  at  102A, Joytish Roy Road, moreover the OPs have kept are vacant one portion of the said ground floor  in compliance to the Joint Venture Agreement but the complainant  is  not entitled  to  68 sq.ft. car parking space, 89 sq.ft. shop room, and 113 sq.ft. covered space as claimed by him and the ground floor of the building   at 102A, Jyotish Roy Road have been enjoyed by two tenants  and out of  4 open spaces  one  allotted to OP no.5 another space is under possession of  OP No.4 and , thereafter, there is no  deficiency on the part of the OPs. Accordingly, the OP Nos. 1 - 3  prayed for counter claim of Rs.10,00,000/- on account of loss suffered, Rs. 9,00,000/- on account of mental agony and for further reliefs.

          The OP nos. 1, 2 & 3 annexed copy of joint venture agreement dt. 24.04.2012, General Power of Attorney dt. 27.04.2012, money receipt  dt. 25.11.2013, minutes of meeting dt.23.11.2013, General Power of Attorney dt.2.5.2014, Development Agreement dt. 5.5.2014, supplementary  agreement of  5.5.2014, Special Power of Attorney dt.5.5.2014  Site Plan, letter dt. 27.2.2015 issued by OP  developer to the  landowners, letter dt.2.6.2014 issued by developer to the  complainant, Acceptance of possession of flat by complainant  Agreement for Sale dt. 7.9.2015.

          The OP nos. 4 to 8 also contested the case by filing written version stating inter alia that ground floor of the building  premises no.102 A, has been under occupation of a tea shop owner and a barber and rest of the portion had 4 car parking spaces and out of  4 car parking spaces  3 spaces are under possession on OP Nos. 4, 5 & 7 and one is kept vacant.

          The complainant and OP nos. 1, 2 & 3 and OP Nos. 4 to 8 filed evidence followed by cross examination in the form of questionnaire and reply thereto. The complainant in his affidavit in chief has stated that the ground  floor space meant for the complainant has been being under control of Sahapur Durgatsav Committee.

           All the parties filed BNA.

           In course of argument Ld. Advocate for the complainant narrated the facts mentioned in the petition of complaint. Ld. Advocate on behalf of OP Nos. 1, 2 & 3  submitted that  refundable amount has not been refunded yet.

Points for determination:

1. Whether there is deficiency in providing service
2. Whether the complainant is entitled to the relief as prayed for

Decision with reasons :

          Both points are taken up together  for discussion and decision. Admittedly a joint venture Agreement  was executed  by and between the developers and landowners  of Holding no. 24/1,Jyotish Roy Road for constructing a G + IV  storied building at the  said premises and  to divide the said holding into two parts  and by virtue of  partition deed said premises has been divided and numbered as  102 & 102A Jyotish Roy Road. Admittedly a  General Power of Attorney  was also  executed and registered in favour of the Developer on  27.4.2012 by the landowners in respect of  premises  no.102 Jyotish Roy Road and another Power of Attorney  was executed by the landowners in respect of  102A,  Jyotish Roy Road on 2.5.2014 . It is also admitted that a Development Agreement dt. 5.5.2014 and Supplementary Agreement dt. 5.5.2014   was executed in respect of premises no. 102A & 102, Jyotish Roy Road, Kolkata under certain terms and conditions including owners ‘allocation of the proposed developed property.

          The specific allegation made by the complainant is that as per terms of the agreements executed by and between the land owners and the developers he has been entitled to get 1/4th portion of the ground floor of the building constructed at the premises being no. 102A, Jyotish Roy Road.

          On perusal of the joint venture agreement dated 24.4.2012 it appears that the owners are entitled to four flats at the building constructed at 102, Jyotish Roy Road, including other common facilities. It further appears from the documents on record that on 05.05.2014  agreement has been executed by and between the landowners of the premises  being no.102A, Jyotish Roy Road  and the instant developers. Subsequently, a supplementary development Agreement  on the same  date has been executed. On perusal of the said supplementary agreement dated 5.5.2014 which the  complainant executed as one of the land owners it appears  from  page no.4 clause no.(a) of the said  agreement which runs as owner  No.6, Sri Swapan Kumar Majumder of  the First Part, to be allocated a  flat  on 2^nd floor  back side  and one flat on the 3^rd floor front  side of the building  i.e. totally two flats to be allocated to Sri  Swapan Mjumdar in the  premise no. 102, Jyotish Roy Road, Kolkata  700 053 . Sri Swapan Kumar Majumder is being allocated one flat as per agreement dated  24.04.2012 and one flat  against the new joint venture agreement against plot B Premises no. 102A, Jyotish Roy Road, Kolkata  700 053.

          It is , therefore, crystal  clear  that  the complainant  by virtue of supplementary agreement  dated 5.5.2014  agreed to receive  two flats at  premises no.102A, Jyotish Roy Road, Kolkata  700 053 one of which was allotted  to him in lieu of his allocated portion of the building constructed at  102, Jyotish Roy Road, Kolkata  700 053.

          It appears from letter dt. 5.6.2017 issued by Mr. Subrata Bandyopadhyay to the complainant that  admittedly there is a share of the complainant on the ground floor of the Premises No.102, Jyotish Roy Road, Kolkata - 700 053 and that  share is being kept under lien since the complainant has failed to refund the  refundable amount of  Rs.2,50,000/- , whatever may be the cause behind  non-delivery of possession of ground floor but the said document clearly shows that the possession of ground floor has not  been handed over to the complainant and moreover  no legal  step has been taken by the  OP to  realise  the refundable  amount from the complainant  and, therefore, the complainant  is entitled to have his share  of ground floor of  102A, Jyotish Roy Road, Kolkata  700 053.

          The complainant has stated that he is entitled to 168 sq.ft.  car parking space, 89 sq.ft.  shop room and 113 sq.ft.  covered space on the ground floor of premises no. 102, Jyotish Roy Road, Kolkata  700 053. However, no document has been filed showing any such of space  as stated by the complainant.

          However,  the complainant prayed for direction upon the OP to handover 1/4^th  portion of ground floor of  building  constructed at 102A, Jyotish Roy Road, Kolkata - 700 053 but failed to file any document  wherefrom it would  have been  evident that the actual measurement of the  area to be delivered to him.

          Under such state of affairs,  if we disallow the prayer  for delivery of 1/4^th portion of the ground floor of the  building  constructed at 102A, Jyotish Roy Road, Kolkata  700 053  on the ground that no authentic document has been furnished showing actual measurement of the area to be  deliver, the complainant would be deprived of his legitimate claim.

          Further, as per terms of the agreement dt. 24.04.2012 the parties agreed that they would solve the problem of tenant jointly. It is admitted by the OPs the two shop owners who happened to be tenants are running business at the said ground floor of the building. Since the owners along with developers are to settle the issues of tenants the complainant being one of the landowner cannot shed his responsibility regarding the said two tenants.

          On perusal  of memo of consideration of Joint Venture Agreement dt 24.4.12 and Development  Agreement dt. 5.5.14 executed by and between the land owners and
Developers it appears that the complainant received refundable amount of Rs. 1,25,000/- by cheque dt. 08.03.2012 and Rs. 1,25,000/- by cheque being no. 000455 dt. 30.04.2014 in respect of his allotment at premises no. 102 Jyotish Roy
Road & 102A, Jyotish Roy Road respectively by putting his signature on the memo of consideration. It is evident that the complainant  received  total amount of RS. 2,50,000/- towards refundable amount from the OPs. No documents has been filed to substantiate that the said amount has already been refunded. Admittedly, the complainant received possession of two flats but even after receiving possession of  two flats complainant did not even refund  half portion of the refundable amount. It further appears  that  in response to the letter dt. 19.05.2017 the OP sent  reply dt. 5.6.2017 stating that a portion of ground  floor the building  at  Jyotish Roy meant for the complainant  would be kept under lien for non-payment  of  refundable amount and  on receiving said letter the  complainant  took no step to make it clear  whether he has  paid the amount.

          Considering such state  of affairs  we are inclined  to hold that the refundable amount  of Rs. 2,50,000/-  has not been refunded by the complainant yet.

          Under such circumstances, we are of opinion that it will be just and proper if the developer delivers the space which is admittedly kept on ‘lien’ on receiving refundable amount of Rs. 2,50,000/-  from the complainant.

          Regarding prayer for  construction of boundary  wall and demolition of  fountain  no authentic  document such as report of commissioner has been brought  before  us and, in absence of such document  we are  inclined to disallow such prayer.

          Considering the situation we are not inclined to pass order for compensation.

 Hence,

                       Ordered

          That CC/697/2017 is allowed on contest.

          The O.P  Developer  is directed  to handover possession of the vacant space of ground floor of the  building situated at  102A, Jyotish Roy Road, Kolkata  700 053  which the developer  claimed  to have kept on ‘lien’ within two months from the date of this order on payment  of refundable amount of Rs. 2,50,000/- by the complainant.