- Sri Pabitra Kumar Chatterjee,
C-4/702, Capital Apartment,
3, Vasundhara Enclave, Delhi-110096,
Represented by Constituted Power of Attorney holder
Smt. Anjana Mazumder
Flat No.FG 4, Kasturi Co-operative Housing Society Ltd.
77/A, Baderaipore Road, P.S. Jadavpur, Kolkata-32. _________ Complainant
____Versus____
- M/s Mira Construction
41/4, Chetla Road, P.S. Alipore, Kolkata-27
Represented by its existing partners-
(a)Sri Tapan Kumar Gayen
39B, Beltala Road, P.S. Ballygunge, Kolkata-20.
(b) Sri Biswajit Das,
41/4, Chetla Road, P.S. Alipore, Kolkata-27. ________ Opposite Party
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 19 Dated 21-07-2015
The case of the complainant in short is that complainant along with co-sharer entered into Development Agreement on 14.6.06 with M/s Mira Construction, a partnership firm having its regd. office at 41/4, Chetla Road, P.S. Alipore, Kolkata-27 represented by its existing partners (a) Sri Tapan Kumar Gayen, (b) Sri Biswajit Das as the developer o.p. herein.
In terms of agreement dt.14.6.06 it was decided by and between the parties that complainant will get 300 sq.ft. super built up area on 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27, photocopy of the agreement dt.14.6.06 is annexed herewith and market with letter-‘A’.
M/s Mira Construction represented by Sri Tapan Kumar Gayen and Sri Biswajit Das out of Rs.4,45,000/- gave two cheques each amounting to Rs.1 lakh and it was decided by and between the parties that M/s Mira Construction will pay the balance amount within Dec. 2011 otherwise the company will give 300 sq.ft. super built area in 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27.
The 1st cheque was encashed by complainant but the 2nd cheque dt.10.6.11 drawn on Vijaya Bank, Rash Behari Avenue Branch was bounced due to insufficient fund although it was decided that M/s Mira Construction represented by Tapan Kumar Gayen and Biswajit Das that full amount will be paid within Dec. 2011. Photocopy of cheque dt.10.6.11 is annexed herewith and marked as letter-‘C’.
Complainant went to o.p. many times for fulfillment of their part of obligation but o.p. failed to comply with the agreed terms.
Lastly on 15.3.12 complainant through his lawyer sent registered letters dt.13.3.12 with A/D to the two partners of o.p. for performing its part. The said letter dt.13.3.12 was received by Sri Biswajit Das through Mira Das but the said registered letter sent to Sri Tapan Kumar Gayen was returned with postal endorsement ‘Not Claimed’. A true copy of the said notice along with registration receipts and acknowledgment card are filed herewith and marked with letter – D, D1 & D2 but o.p. did not perform its part.
As o.p. did not perform its part so the complainant is entitled to get 300 sq.ft. super built up area on 1stfloor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27. Complainant has to sustain mental agony, harassment for deficiency of service and unfair trade practice rendered by o.p. and for this purpose o.p. is liable to compensate the complainant Rs.6 lakhs on account of mental agony, harassment and / or inconvenience.
The cause of action of the complainant arose on 14.6.06 when complainant entered into the agreement with o.p. and thereafter on 22.4.11 when Tapan Kumar Gayen and Biswajit Das two partners of Mira Construction gave to cheques each amounting to Rs.1 lakh and promised to pay Rs.2,45,000/- within Dec. 2011 in default Mira Construction will hand over 300 sq.ft super built up area on 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27 and thereafter when the lawyer of complainant sent registered letters dt.13.3.12 sent on 15.3.12 to the partners of o.p. and the same is continuing day to day.
Decision with reasons:
O.ps. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them and prayed for dismissal of the case. Ld. lawyer of o.ps. in the course of argument submitted that the case has got no merit and the same is liable to be dismissed.
We have gone through the pleadings of the parties, evidence and documents in particular. From the record we find that the dispute between the parties is in respect of a flat. It is seen from the record that complainant referred and relied one development agreement and its terms and conditions have been mentioned therein. From the agreement we find that in consideration of the owners having agreed to grant exclusive right to the developer to commercially exploit the said premises by constructing the building thereon and the owners shall be entitled to the following areas which shall be provided by the developer to the respective owners by Sri Pabitra Kumar Chatterjee, owner no.1 shall be provided 300 sq.ft. super built up are of the said building.
We further find that In terms of agreement dt.14.6.06 it was decided by and between the parties that complainant will get 300 sq.ft. super built up area on 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27, photocopy of the agreement dt.14.6.06 is annexed herewith and market with letter-‘A’. Further on 22.4.11 it was decided by and between the parties that M/s Mira Construction represented by Tapan Kumar Gayen and Sri Biswajit Das will give Rs.4,45,000/- only to complainant in exchange of 300 sq.ft. super built up area photocopy of receipt dt.22.4.11 is annexed herewith and marked with letter-‘B’. M/s Mira Construction represented by Sri Tapan Kumar Gayen and Sri Biswajit Das out of Rs.4,45,000/- gave two cheques each amounting to Rs.1 lakh and it was decided by and between the parties that M/s Mira Construction will pay the balance amount within Dec. 2011 otherwise the company will give 300 sq.ft. super built area in 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27. The cause of action of the complainant arose on 14.6.06 when complainant entered into the agreement with o.p. and thereafter on 22.4.11 when Tapan Kumar Gayen and Biswajit Das two partners of Mira Construction gave to cheques each amounting to Rs.1 lakh and promised to pay Rs.2,45,000/- within Dec. 2011 in default Mira Construction will hand over 300 sq.ft super built up area on 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-27 and thereafter when the lawyer of complainant sent registered letters dt.13.3.12 sent on 15.3.12 to the partners of o.p. and the same is continuing day to day.
In view of the above findings we find and hold that o.ps. had deficiency in service on their part being service providers and complainant has been able to substantiate his case and is entitled to relief.
Hence, ordered,
That the case is allowed on contest with cost against the o.ps. O.ps. are jointly and/or severally directed to give possession of 300 sq.ft. super built up are on the 1st floor of the building at 26/1B, Sabji Bagan Lane, P.S. New Alipore, Kolkata-700027 in favour of the complainant as per schedule of complaint petition and are further directed to pay to the complainant compensation of Rs.60,000/- (Rupees sixty thousand) only for harassment and mental agony and litigation cost of Rs.10,000/- (Rupees ten thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
