Dt. of filing- 10/04/2018

Dt. of Judgement- 01/11/2019

Mrs. Sashi Kala Basu, Hon’ble President.

          This consumer  complaint  is filed  by Shri Ramendra Nath Saha under Section 12  of the Consumer Protection Act against the Opposite Party namely M/s. Modern Construction  alleging  deficiency in service on its part.

          Case of the complainant  in short is that complainant  was the owner in respect of the property  described as  homestead  land measuring  an area  of 4 cottha 5 chitaks  and 37 sq.ft. comprised in J.L. N. 45, Dag No. 140, being Municipal Premises  No. 116,  Arabindra Park locally known as C/2, Arabind Park. With an intention to develop the  said property, complainant entered into a development agreement with the OP  on 11.03.2011  to construct  a building upon the  roof of the ground floor on his  said plot  of land. He also  executed a registered General Power of Attorney  in favour of  OP on 09.09.2016 to construct the said  new building. OP undertook  to construct  the building  within  18  months  from the  date of the  sanction  of the building plan. OP started the construction work initially but for the reason best known to OP, work was suddenly stopped. However, on much persuasion, OP resumed  the construction work   but did some brick works only. It was agreed that the building  was a G +  3 storied   and in terms  of the agreement complainant  was entitled to entire ground floor, one flat of the 1^st floor front side and 1 flat on the 3^rd floor front side and also 1 flat  on the 2^nd floor  back side. But the same  has not been handed over  to the complainant. OP  is trying to transfer the entire  project to some other  builder for gains  without the  consent and knowledge  of the complainant. Inspite of the repeated requests of the complainant to complete the building  and to hand over  owner’s allocation, OPs have been avoiding to comply the same. So, ultimately notice was sent by the complainant through his Ld. Advocate requesting  to complete and hand over  owner’s  allocated portion but all in vain. So, present complaint has been filed  directing the OP to complete  the construction  work, to handover the owner’s  allocation, to pay compensation of Rs. 18,50,000/-  and to pay  litigation cost of Rs. 50,000/- and further  to give the possession letter  along with Completion Certificate.

          Complainant has annexed  with complaint, copy of the Sale Deed  showing the ownership of the complainant over the land, K.M.C. tax receipt, copy of agreement  dated 11.03.2011 , copy of the General Power of Attorney dated 09.09.2016 and copy of the notice sent by the  complainant through his Ld. Advocate.

          OP has contested the case by filing  the Written Version  denying and disputing  the allegation made in the complaint contending inter alia that the possession  of the owner’s allocation has already been  handed over and  a declaration dated 21.12.2015 has been made by the complainant  to that effect. Complainant  after getting  the owner’s allocation put a door in the car parking space  lying  in his allocation and tried forcibly to occupy  the unsold portion  of the developer’s allocation. Complainant  restructured  his allocation  violating the building  rules of the K.M.C. for which K.M.C refused to issue Completion Certificate. Complainant  has also  taken Rs. 2,50,000/- from the  OP but has not  refunded  the same. So, OP has prayed  for  dismissal  of the complaint  with heavy cost.

          During the  course of the trial, both parties have filed their  respective affidavit in chief  followed by filing questionnaire and reply thereto and ultimately both parties have filed written notes of argument. So,  the following points require determination :

1. Whether  there has been  any deficiency in service  on the part of the OP ?
2. Whether  the complainant  is entitled to the relief as prayed for ?

Decision with reason

          Point Nos. 1 & 2:   Both the points  are taken up  together for  a comprehensive discussions.  It is claimed by the  complainant that the development agreement  dated 11.03.2011 was executed between him and the OP  to raise  construction  of G + 3 storied building  upon the roof of the ground floor. But the  OP has not  completed the said building and  has not handed over  the  owner’s allocated portion.

          So far as execution of the  development agreement  has not been  denied  and disputed by the OP. But it is the specific claim  of the OP  that the  owner’s allocation  has already been handed over to the complainant in terms of the agreement and to this effect  a declaration has already been made by the complainant  acknowledging such handing over of the owner’s allocation. OP   has filed the said declaration  and confirmation dated 21.12.2015.  It appears from the said declaration  that the  same has been  executed by the complainant on 21.12.2015. It has been specifically stated in the said declaration  that  “as per development agreement dated 11.03.2011, the developer  completed the construction  and after completion of the  said  building on the said plot,  developer  handed over  to me as owner my allocation flats/units”. So, the specific recital in the declaration  dated 21.12.2015 suggests complainant has already been  handed over the owner’s allocation which  indicates completion  of the building  as per the development agreement entered into  between the  parties.

          It appears from the questionnaire  filed  by OP that a specific question was   put by the OP being question no. 27  that “ Did you make  any declaration and confirmation dated 21.12.2015 that the  OP completed the construction in compliance  to the agreement  dated 11.03.2011  and after  completion  of the said building  on the said plot, OP handed over to you the owner’s allocation ?”  Complainant   has replied  to the said question  being reply  no. 12 that it  was  a matter of records.  So, the execution  of the said declaration  and confirmation dated 21.12.2015  has not been disputed and denied  by the complainant. Complainant  has also admitted that the electric meters  in three separate floors  have also taken  in the said building   in the names  of his  two sons and  in his name.  Two separate  deed of conveyance  dated 28^th June, 2017 and 23^rd  April, 2014 in the name of  purchasers  namely  Rash Mohan  Saha and Suman Patra  have been filed bearing specific  recital  that as per development  agreement, developer duly  constructed  G + 3 storied  building  and  the  possession of the flat as per  the agreement  for sale entered into  between those parties  with the developer  and owner, has been handed over and accordingly deed of conveyance has been  executed in their  favour. So, on consideration of the declaration  as referred to above made by the complainant  himself and the  two deeds as well as the possession letter issued   in their favour,   negates  the claim of the complainant  that the building has not been completed or that the possession of owner’s allocation has not been handed over. So in such a situation, complainant  is not entitled to the  reliefs as prayed   and thus  the  complaint  is liable to be dismissed.

Hence,

                      Ordered

          CC/186/2018 is dismissed  on contest.