Judgment :Dt.6.6.2017

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under Section 12 of C.P.Act, 1986, filed by Swapna Das alleging deficiency in service on the part of the OP M/s Ram Thakur Enterprise.

            Case of the Complainant, in brief, is that being owner of a piece of land measuring more or less 2 cottahs, 10 chittaks and 0 sq.ft. lying and situated in Mouza-Bademasur, J.L.No.31 in EP No.82, in C. S. Plot No.562(P), KMC premises No.34, Purba Phool Bagan Road, Mailing address – 74, Phool Bagan, P. S. – Jadavpur, now at Patuli Police Station, Kolkata-700 086, the Complainant entered into a Development Agreement on 08.10.2010, with the OP Developer for development of the said piece of land by constructing a three storied building there at the Developer’s own expense and thereafter to deliver three numbers of flat, each measuring 700 sq.ft. built up area on north-east side on  each floor of the said three storied building to the Complainant. The Complainant has stated that it was agreed between the parties that the Owner’s allocation portion of the building would be delivered within 18 months from the date of execution of the Development agreement. It is further stated that the OP on 1.7.2014 delivered a flat on the 2^nd floor north east side of the building to the Complainant but without delivery of any possession letter and other documents such as copy of sanctioned plan, etc. to the Complainant. The Complainant has specifically stated that since then the OP had requested the Complainant on several occasions to extend a spell of three months’ time respectively to which the Complainant agreed and granted a spell of three months time on four occasions even executing subsequent agreements, but of each and every occasion, the developer failed to keep her word and the construction work remained incomplete. The Complainant even served a demand notice dt.21.5.2015 through her Ld. Advocate. Mr. Kamal Kanta Kar in reply to which the developer served a letter dt.27.6.2015 and prayed for a further spell of three months’ time to complete the construction work which the Complainant granted but again the developer failed to keep her word.

            However, the Complainant mentioned that the Opposite Party delivered a flat on second floor of the building but that too in incomplete condition.

            It is specifically stated that on 1.10.2015, the Complainant found that the OP transferred two flats at the said building to the outsider purchasers by violating terms of the agreement executed by and between the Complainant and OP.

            The Complainant sensing something was going wrong revoked the Power of Attorney on 27.7.2016 executing Deed of Revocation. According to the Complainant, it is evident from the conduct of the OP that she adopted unfair trade practice by not completing the owner’s allocation portion in time in spite of getting repeated opportunity for completing the same. Hence, the Complainant has prayed for a direction upon the OP to deliver the entire owner’s allocation viz. three numbers of flats to the Complainant/Owner as per full satisfaction of her and to pay a sum of Rs.3,00,000/- towards damages and costs to the Complainant.

 The Complainant annexed photocopy of the following documents : (1) Agreement dt.8.10.2010, (2) General power of attorney, (3) Notice dt.2.5.2015 from the Complainant (through the Advocate) to the Developer, (4) Declaration by the Developer dt.27.6.2015, (5) Supplementary Agreement dt.15.7.2014 and (6) Revocation of power of attorney dt.27.7.2016, etc.

            The OP contested the case and filed written version denying and disputing all material allegations stating, inter alia, that out of good relationship between the parties the developer agreed to the request of Complainant for development of the property and, therefore, on mutual understanding an agreement was executed. It is stated by the OP that due to unavoidable circumstances she could not complete entire construction within the stipulated time but time was extended by the Complainant. The OP further stated that as a result of gratitude and the request of the Complainant the developer has done lots of extra works in the portion which already delivered to the Complainant on 23.12.2015. It is the specific defence of the OP that after starting residing at her flat the Complainant did not allow the OP and her masons to complete the unfinished work at the 1^st floor flat of the Complainant. It is specifically stated by the OP that had the Complainant allowed the OP to get into the site and to undertake construction work of the owner’s allocation portion the entire construction work would have been finished even before filing the instant case. The OP specifically undertakes to complete the construction and deliver the remaining portion of the owner’s allocation to the Complainant within three months if the OP is allowed to construct the remaining work.

            The Complainant and the OP adduced evidence followed by cross examination in the form of questionnaire and reply thereto.

            Ld. Advocate for the Complainant has submitted that the Complainant did not put hindrance before the developer or her masons to construct the building and it is the OP who manufactured the story of putting hindrance before the Opposite Party and her masons to enter into the premises.

            Points for determination

1. Is there any deficiency on the part of the OP?

2. Whether the Complainant is entitled to the relief as prayed for?

           Both points are taken up together for comprehensive discussion and decision.

          It is evident from the record that the parties entered into an agreement for development dt.8.10.2010 and subsequently a supplementary agreement thereto under certain terms and conditions. Terms of the contract is binding upon the parties. Moreover, both parties, in course of this proceeding mutually agreed to the point that the OP would complete the construction and deliver possession of the owner’s allocation to the Complainant if a spell of three months’ time is granted to her and if the Complainant allow, her and her masons to the said premises. The Complainant is very much agreeable to the proposal and submitted that she never disallowed the developer and her masons in the premises. However, as both parties mutually agreed to this point, they would not resile therefrom.

          Since the instant case is being disposed on basis of mutual consent no order as to compensation and costs is passed.

          In the result, the Consumer Complaint succeeds in part.

          Hence ordered

          That the Consumer Complaint being No.CC/417/2016 is allowed I n part on contest but without any order as to compensation and costs.

          The OP is directed to complete the construction within three months from the date of this order and the Complainant is also directed not to put any hindrance and after completion of the construction work the OP to deliver possession of the flats as per terms of the agreement dated 08.10.2010.

          In the event of non-compliance of this order or any part thereof the Complainant is at liberty to execute the same as per provision of law.

          Thus this petition of complaint is disposed off.