Judgment : Dt.11.1.2018
Shri S. K. Verma, President
This is a complaint made by (1) Sri Dilip Kumar Biswas, s/o Late Devendra Nath Biswas, 135/5, Sreerampur (south), P.O.-Garia, P.S.-Patuli, Kolkata-700 084 and (2) Sri Bhola Nath Biswas, 14N, Naktala Road, P.O.-Naktala, P.S.-Netaji Nagar, Kolkata-700 047 against M/s Millanium India Construction, 23/15, Naktala Road,Millanium Flora Apartment, P.S.-Netaji Nagar, Kolkata-700 047, OP No.1, Sri Debasish Sarkar, s/o, Sri Kamal Sarkar, 287, Ganguli Bagan, P.S.-Netaji Nagar, Kolkata-700 047, OP No.2 and Sri Samir Kumar Halder, S/o Late Sudhir Kumar Halder, 4/45, Vidyasagar, P.S.-Netaji Nagar, Kolkata-700 047, OP No.4 praying for handing over two covered garages as per the agreement and the ground floor flat of 500 sq.ft., payment of compensation for 36 months @ Rs.20,000/- per month and a direction for removal of the chain and lock from the collapsible gates of the two flats at 4th floor, restraining order against catering business in the ground floor and also removal of the gas cylinders and gas oven from the ground floor and direction upon the OPs so that the ground floor can be used as per the KMC plan for a flat and litigation cost of Rs.50,000/-.
Facts in brief are that OPs are the developers who entered into development agreement with the Complainants, owners, on 8.9.2008. According to that agreement developers got a plot of land measuring 4 cottahs with a structure thereon under Mouza-Naktala, J.L.No.32, LOP No.-128, C.S.Dag No.102(P) and 100(P), P.S.-Netaji Nagar, being a portion of premises No.348/84, N.S.C.Bose Road, Kolkata-700 047. The developer in the said agreement agreed to handover 50% of the entire constructed area in the proposed building i.e. the entire first floor, 2 covered garages measuring bout 150 sq.ft. each and one flat measuring 500 sq.ft. in the ground floor and Rs.3,00,000/- as adjustable money against the 250 sq.ft. constructed area to be given by the OPs. Ultimately, OPs constructed a G+4 storied building and by a supplementary agreement the OPs agreed to include 2 flats of the 4th floor in the owners’ allocation. The construction of G+4 building was completed by 2010. But the Complainants did not get any letter of possession from the developers. They however got 4 keys left in the veranda of the residence of the owners by the developers. In spite of repeated requests, developers did not hand over the Complainants two covered garages each measuring 150 sq.ft. and the ground floor flat measuring 500 sq.ft. Complainants, owners, have further submitted that after receiving the keys of the two flats of the 4th floor the Complainants fixed two collapsible gates at their own expenses before the front doors of the two flats. After a few days of such fixation, the developers illegally damaged the locks of the Complainants and put those two gates under chain, lock and key so that the Complainants cannot have any scope to enter in those two flats. It was stipulated in paragraph 13 that the Developer must complete the entire construction of the proposed building in all respect and will positively handover the owners allocation to the owners within two years from the d ate of execution of this agreement, failing which the developers will have to pay a sum of Rs.20,000/- per month to the as compensation till owners allocations are handed over. According to the sanctioned plan of KMC the ground floor was for a flat, garages, Caretaker’s room and for common toilet. But the OPs violated the KMC plan and started a catering business in the ground floor and stored a number of gas cylinders in the ground floor. Moreover, the developers turned four covered garages into shops by putting shutters before those four covered garages and thus sufficiently proves themselves not only guilty for deficiency in services but also for unfair trade practice. So, Complainant filed this complaint.
OPs filed written version and denied the allegations of the complaint. Further, they have stated that Complaints are three brothers and they got the property from their father depriving their mentally retarded brother and thereby got the plot by any of deed of gift. OPs for clearing all embargoes paid Rs.10,00,000/- to the earlier developer and also to manage the entire locality. OP had to leave the front portion of the corner of the land measuring one and half cottah to the deprived brother of the Complainants and their family and as a result, project was held up for two and half years. After a long hurdles the building was erected and OP requested the Complainants to have a sitting for calculation of expenditure incurred by the developer and fresh statement of account so that 50% of the owner’s allocation and developer’s allocation can be settled amicably and OPs requested the Complainants to execute registered deed in favour of the purchaser. In addition, OPs have denied specifically the allegations as made in the complaint and prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. OPs filed questionnaire to which Complainant filed affidavit-in-reply. Thereafter, OPs filed a petition for treating the written version as evidence to this Complainant filed questionnaire and OPs filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
It appears from the prayer portion that the Complainants have prayed for handover of the two covered garages as per the agreement and the ground floor flat of 500 sq.ft. In this regard, on perusal of the agreement, it appears that owners’ allocation is 50% out of total constructed area to be made in the proposed G+3 storied building it is further mentioned the entire first floor, 2 covered garages each measuring about 150 sq.ft., one flat measuring 500 sq.ft. in the ground floor. So, it is clear that as per the agreement OPs were bound to hand over 500 sq.ft. ground floor to the Complainants which they have not done. OPs have mentioned in their written version that they paid Rs.10,00,000/- for t heir work and one of the brothers of the Complainants is mentally retarded.
In our view, such statements are nothing but for the purpose of depriving the Complainants and to camouflage the issue. As such, we are of the view that Complainants are entitled to two covered garages as per the agreement and also the ground floor flat of 500 sq.ft. to the Complainants.
Further, Complainants have prayed for 36 months rent @ Rs.20,000/-. However, we do not find any such averment in the owner’s allocation that Complainants are entitled to Rs.20,000/- per month for three years. Accordingly, this prayer cannot be allowed.
Complainant has also prayed for removal of the chain and lock and key from the collapsible gate of the two flats of the fourth floor. Complainants did not pray for any local inspection, so that the lock and key can be opened of the fourth floor. In the absence of local inspection report, this prayer cannot be allowed.
Complainant has also prayed for restraining order against catering business in the ground floor and removal of gas cylinders. In this regard, there does not appear any report of the local inspection commissioner on the basis of which this Forum may come to a finding that catering business is running in the ground floor and gas ovens are kept there. Accordingly, this prayer also cannot be allowed.
Complainant has prayed for litigation cost of Rs.50,000/-. In this regard, we are of the view that if litigation cost of Rs.10,000/- is allowed, the object of justice would be served.
Hence,
ordered
CC/257/2017 and the same is allowed ex-parte against OPs. OPs are directed to handover possession of two garages to the Complainant and one 500 sq.ft flat within three months of this order. They are also directed to pay Rs.10,000/- as litigation cost to the Complainant within the above mentioned period, in default this amount shall carry interest @ 10% p.a. from the date of this order, till realization.
