HON’BLE MR. JUSTICE ISHAN CHANDRA DAS,PRESIDENT

       This appeal has been directed against the judgment and order dated 24-03-2017 passed by Ld. DCDRF, North 24-Parganas at Barasat in CC/447/2016 where Ld. Forum concerned while disposing of the complaint case dismissed the same on contest against the OPs without cost.

       Being aggrieved by such order of dismissal the present appeal has been preferred by the complainants of CC/447/2016.

       Briefly stated, the case of the appellant/complainant (hereinafter referred to as the complainants) was that the complainants and the OPs no. 3 and 4 being the joint owners entered into an agreement with the OPs no. 1 and 2/Developers and its proprietor for construction of a number of multistoried buildings thereon. The land owners also executed and registered Power of Attorney in favour of the OPs/Developers and as per said Development Agreement as well as the Power of Attorney the Developers submitted a building plan before the concerned municipality for development of the said property by constructing a number of multistoried building and as per agreement it was settled between the parties that the construction would be completed within 48 months from the date of getting the sanctioned plan. It was further settled that in case, the Developer fails to deliver possession of the allocated area to the owners’ within the stipulated period (i.e. four years) the Developer shall pay damages to the tune of Rs. 5,000/- (Rupees five thousand) for every month’s delay to the land owners and such period shall be granted for a maximum period of six months. According to the said Development Agreement the owners were entitled to get 50% on the ground floor and 40% of the upper floors of the total constructed area of the proposed multistoried building together with an undivided proportionate share in the said land and common area of the said building. According to the said Development Agreement, the Developer paid a sum of Rs. 1,50,000/- (Rupees one lakh fifty thousand) as refundable security deposit to Nemai Pramanik at the time of aforesaid Development Agreement and rest 1,50,000/- (Rupees one lakh fifty thousand) has been paid at the time of sanctioned building plan to the complainant no. 3 and Debi Prasad Pramanik, the predecessor in interest of the OPs no. 3 and 4. Building plan was sanctioned by local municipality on 29-12-2010 and as per said Development Agreement the OP no. 1 was bound to complete the proposed three number of multistoried building on the property within 48 months from the date of getting the sanctioned plan from the local authority but it was not done till today. The complainants requested the OP no. 1 to start construction of another two blocks as one block has been constructed in the mean time but no development work was taken up by the Developer. On 25-02-2014 one Debi Prasad Pramanik, the predecessor in interest of the OPs no. 3 and 4 died intestate leaving the OPs no. 3 and 4 as his legal heirs whose name should be inserted in the Development Agreement in place of said Debi Prasad Pramanik but the Developer/OP no. 1 who assured to complete the legal formality and to execute the terms of Development Agreement but ultimately he did not do so and left the complainants to take up before the DCDRF concerned claiming reliefs in terms of the petition of complaint.

       The OPs no. 1 and 2 filed two separate written versions to contest the complaint case and denied the cause of action, as averred in the body of the petition of complaint. Admitting the liability of the Developers/OPs no. 1 and 2 for construction of the building of the landed property within the stipulated period of 48 months from the date of getting the sanctioned building plan from the local authority it is alleged by the OPs that the OPs no. 1 and 2 did not give vacant possession of that portion of the land where the proposed construction would be made and due to such reason the OPs/Developers could not complete the construction of the building on the plot of land though both the OPs ultimately prayed for dismissal of the complaint case.

       Factual aspects of the matter were not seriously disputed by the parties herein. Fact remains the complainants no. 1 to 4 and the predecessor in interest of the OPs no. 3 and 4 were the joint owners of the property and as per terms of agreement between the parties three blocks of the building were to be constructed by the Developer as per agreement dated 09-04-2009 where it was further decided that the OPs would construct such buildings within 48 months from the date of getting the sanctioned building plan from the local Authority. It is also not disputed that one of such blocks was constructed in the mean time but the OPs alleged that due to non-cooperation of the land owners by providing the vacant possession of the plot the building could not be constructed by the OPs/Developers. It is also claimed by the OPs/Developers that due to the demise of the predecessor in interest of the OPs no. 3 and 4 (i.e. Debi Prasad Pramanik, since deceased) a separate agreement and fresh Power of Attorney should be executed for smooth running of the construction of the buildings but we are afraid when the parties to the agreement were the land owners entered into the Development Agreement upon execution of the Power of Attorney in course of such construction if one of them dies his successors in interest cannot deny the Developer for getting the construction fulfilled as per the terms of agreement between them.

       Here the complainants and the OPs and the predecessor in interest of the OPs no. 3 and 4 being the consumers within the meaning of section 2 (1) (d) of the Act would be entitled to the benefits they deserved if they co-operate with the Developer in the matter of construction of the building by way of fulfilling the terms and conditions as enumerated in the Development Agreement for getting this share, as referred to under the caption “owner’s allocation” in the second schedule of the agreement provided the conditions enumerated in the agreement.

       Frankly speaking, this is the case where the agreement, its terms and conditions, the petition of complaint for implementation of such terms as well as the written versions filed on behalf of the OPs were half heartedly drafted and taking into consideration all these aspects no effective order can be passed in appeal unless the inner defects are rectified by the respective parties. Hence, instead of passing any specific direction in this appeal we allow the appeal, set aside the order impugned and direct the parties to get their respective pleadings modified for getting appropriate reliefs. With this observation and direction we remit the case to Ld. DCDRF concerned for fresh decision. This appeal stands disposed of. Parties are directed to appear before Ld. DCDRF on 30/04/2019.