FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

Case of the Complainants, in brief, is that the Complainant the ComplainantNo.1 along with othes had entered into a Development Agreement with OP1 in the January, 2012 foe developing a new G+4 building thereon at Parganas Panchanna Gram , P.S.- Kasba , Mouza – Bindel , J.L. No. 16, R.S. No. 212 Touzi No. 1298/2833, C.S. Khatian No. 48 , C.S. Dag No. 211 within the limit of Kolkata Municipal Corporation under Ward No. 67 and paying K.M.C. property tax under Assesee No. 21-067-04-0012-8 being premises No. 2B, Bediadanga 1^st lane , Kolkata – 700039 , District – South 24 Parganas. It was mentioned in the Paragraph No. 9 of the said agreement that the construction shall be completed within a period of 36 months either from the date of peaceful vacant possession overcoming the tenants matter and the said possession should be written to count aforesaid moths or from the date of sanction building plan. In the Paragraph No. 11 it was agreed between the parties that in case developers fails to deliver the possession of the owners area within the period stipulated in Clause 9, then and in such event the developer shall be granted an extension of a maximum period of 6 months and the developer shall have to complete the project. But due to any unavoidable circumstances arises which beyond the control of developer, in that event the time shall be extended after discussion between the parties. If it is found there is no unavoidable circumstances but the developer fails to handover within the extended period of 6 months, at that circumstances the developer shall pay an amount of Rs.20,000/- p.m. to the owners till the handover the possession. The complainants have knowledge about date of sanctioned plan till date as the developer failed and/or neglected to complete and/or finish the construction in accordance with the development agreement for the said G+4 building as written and present in the scheduled property within the said stipulated time i.e. 36 months in terms of said development agreement. Moreover the developer has failed to provide the possession of the owner’s allocation in total as per share hold of each owner. The OP1 has inducted purchaser parties being intending purchasers to invest and make advance payments for the said project and on failure to handover the possession of the flats /units as promised by the OP1 to the said intending purchasers the Complainant No.1 has been served summon on 05.02.2021 vide Complaint Case No. 196/2021(Shyam Kishore Gupta vs M/s Milestone Project) wherein the complainant No,1 and other defendants have been made a party. On receiving the same the Complainant No.1 has learnt about the negligence and tortuous acts of the OP1 which is totally illegal and malafide on the part of the OP1 and has cancelled the said agreement by a letter dated 23/03/2021with the OP1 and demanded an amount of Rs.50,000,00/- only within a period of 7 days from the service of the said letter to the OP1Complainants are still suffering huge financial losses due to recalcitrant attitude of the OP1 in not compensating the complainants in terms of the agreement and further not delivering the possession of the owner’s allocation in favour of the complainants share till date . Therefore complainants have compelled to file this case before this Ld. Commission.

OPs did not contest the consumer complaint despite service of notice. No WV is filed by the OPs within the statutory period. Thus, the case runs ex parte hearing against the OP.

In support of his case the complainant has tendered evidence supported by affidavit and also relied upon documents annexed with the complaint petition. Complainant has also filed written argument. We have heard argument on merit and have also perused the record.

Evidently a Development agreement was executed between the parties on January, 2012 fordeveloping a new G+4 building at Pargans Panchanna Gram, P.S. – Kasba, Mouza – Bondel, J.L. No. 16, R.S. No. 212, Touzi No. 1298/2833, C.S. Khaitan No. 48, C.S. Dag No. 211, within the limit of Kolkata Municipal Corporation under Ward No. 67being premises no. 2B, Bediadanga 1^st Lane, Kolkata – 700039 , Dist – South 24 parganasand after that a General Power of Attorney dated 06/02/2012 vide no. IV-00208/2012was executed in favour of the OP1. Fact also remains that in theARTICLE – II, Paragraph No.9 of thesaid agreement it is mentioned that:

The Developer shall construct the G+IV storied building or shall construct such maximum area as can be entitle on the premises as per sanctioned building plan with specification of work schedule mentioned herein below within a period of 36 months either from the date of peaceful vacant possession overcoming the tenants matter and the said possession should be written to count the aforesaid months or from the date of sanctioned building plan.

It is also mentioned in the said Agreement (ARTICLE – II, Paragraph No. 11)that:

In case the Developer fails to deliver the possession of the entirety of the Owner’s Area within the period stipulated in clause 9 hereinabove, then and in such event the Developer shall be granted an extension of a maximum period of 6 (six) months and the Developer shall have to complete the projects. But due to any unavoidable circumstances arises which beyond the control of Developer, in that event the time shall be extended after discussion between the parties. If it is found there is no unavoidable circumstances but the developer fails to handover within the extendedperiod of 6 (six) months, at that circumstances the Developer shall pay Rs.20,000/- (rupees twenty thousand) p.m. to the owners till the handover of possession.

It is true that that no WV has been filed by the OP1 though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OP1 tantamount to admission of the allegations stated in the complaint petition.

On perusal of the record it is found that a legal notice dated 05/02/2021 has been served to the Complainant No1 along with others on behalf of Shyam Kishore Gupta and Mrs. Namrata Gupta stating that the OP1 had entered into an agreement for sale dated 20/08/2019 for purchasing one self-contained flat measuring an area about 1250sq.ft flat 3A  on the 3rd floor at the  said proposed new building in dispute and has already paid Rs.21,00,000/- (Twenty One Lacs) out of total consideration amount of Rs.47,50,000/- (Rupees forty seven lacs fifty thousand). But the development works was not started within stipulated period which was mentioned in the agreement dated 20/08/2019. After that theOP1 offered the said customer to take back the money and cancelled booking of the said flat by a letter dated 30/09/2020 and issued three cheques being no. 000045, 000046 and 000048 dated 26/10/2020 , 15/11/2020 and 09/12/2020 of Rs.7,00,000/- each of Bombay Mercantile Bank and allthree cheques were bounced with the remark “fund  insufficient”. Thereafter aComplaint Case was filed before Hon’ble DCDRC, Kolkata Unit II bearing No. 196/2021 by the said Shyam Kishore Gupta wherein the complainant No1 have been made a party along with Proforma OPs herein. Photocopy of a legal notice dated 23/03/2021 issued to the OP1 shows that the Complainant No1 cancelled the Agreement for Development executed in the year January 2012 as well as the Power of Attorney  on the grounds of termination for non – performance vide the said letter. It is very unfortunate that the OP1 has failed to start construction of the project within stipulated period as mentioned in the Agreement for Development and there is continuous negligence and deficiency of service on the part of the OP1. It is not our expectation that the complainant by any means suffer from loss of money and time for the breach of agreement on the part of the OP1. Under the above facts and circumstances, the gross negligence and deficiency in service on the part of the OP1 is proved. It is also observed by us that as the Complainant No1 cancelled the Development Agreement and as well as the General Power of Attorney vide legal notice dated 23/03/2021 therefore the question of handover the owner’s allocation cannot be arose at all.

Based on the discussion above we disposed of the consumer case in the following terms.

1. OP1 is directed to pay Rs.60,000/- to the complainants  as compensation for harassment and mental agony and Rs.15000/- as litigation cost within 30 days from the date of this order failing which the amount shall carry interest @ 9% p.a. from the date of the order till its realization.
2. That the case be and the same is dismissed on ex parte against Proforma OPs 1 & 2.
3.  Complainants are given liberty to put the order into execution if the order is not complied within the stipulated period.