Hon’ble Mrs. Soma Bhattacharjee, Member

CC/899/2019 has been filed by Sanjay Rebati Biswas. vs- M/s. Royal Group and Sri Amitava Biswas OP nos. 1 and 2 under Section 12 of C.P. Act, 1986.

The case in brief is as follows: The mother of the complainant Smt. Tarulata Biswas since deceased had purchased a plot no. 3 measuring more or less 6 cottahs 4 chittaks out of which net land is 5 cottahs 4 chittaks after excluding land for common road, in Mouza Kalikapur J.L. No. 20 R.S. no. 2 Touzi No. 3 under the then Police Station Kasba now Purba Jadavpur.

The mother of the complainant entered into a development agreement which was executed on 7^th December, 2012 by the mother of the complainant and the OP no. 1. As per the said agreement the owner’s allocation was three numbers of flats one each on 2^nd, 3^rd and 4^th floor of the proposed building, each of the flats to have 1038 sq. ft. built up area and 50% of the car parking space. In the 2^nd floor the owner would get the south eastern flat, in the 3^rd floor south eastern flat the 4^th floor the owner would get the south eastern flat. The developer/OP no. 2  would also pay an additional amount of Rs. 6,00,000/- to the mother of the complainant. The possession was to be handed over by 24 months i.e. 6^th December, 2014.

Although the development agreement was signed and executed but the same was never registered at the instance of the OP. Subsequent to the said agreement the peaceful vacant position of the said property was duly handed over to the Ops who started construction work on the said plot of land. The sanctioned plan was duly obtained from KMC vide building permit no. 2014120421 dt. 09.02.2015, Borough No. 12.

The complainant’s mother expired intestate on 04.05.2013 leaving behind the complainant and his brother, the two owners of the said property. A supplementary development agreement was executed on 12.03.2015 between the complainant his brother and the OP no. 1 and 2. The complainant and his brother also executed a power of attorney in favour of the OP nos. 1 and 2 and it was registered at the office of the D.S.R 3, South 24 Pgs at Alipore and was recorded in Book No. IV, Volume No. I, from pages 1907 to 1923 being No. 00164 for the year 2015.

According to the agreement, the owner’s allocation was to be handed over to the owners by April, 2015, latest by 8^th August, 2017. However, the complainant states that they have not been provided with the owners’ allocation till the date of filing of this complaint. The complainant requested the OPs to handover possession but they neglected to provide a possession of the constructed apartment. The OPs neither delivered vacant possession of the owners’ share nor paid Rs. 6 lakh as per agreement. They have not informed the complainant about any issues or force majeure issues which may have hampered the construction of the structure.

Till September, 2019 when the complaint case was filed, the OPs have completed entire construction and have provided possession and registration of other apartments in the building to buyers. But OPs have failed to complete the building and handover the owners’ allocation.

It is pertinent to mention here that as per declaration issued by the OPs on stamp paper the OP/developer have agreed in principle to pay an amount of rupee equivalent to the price in area of 429 sq. ft against his occupying one more flat beyond his share. Furthermore, it has also been agreed that an amount equivalent to the cost of garage, the cost of one shop room and the cost of one covered space was to be handed over to the complainant as per development agreement. On top of it the OPs had agreed to pay an amount or Rs. 3 lakh to the complainant. However, the OPs failed to provide the ready to move apartment within the extended time frame and they stopped all correspondences with the complainant.

The complainant states that the cause of action arose on 7^th December, 2012 when the mother of the complainant hired the services of the OPs to build the apartment. It arose again on 12.03.2015 when a supplementary development agreement was executed between the complainant and the Ops. Since the developer/OP has failed to provide peaceful vacant possession of the owner’s allocation the cause of action is continuing till the date of filing of this complaint.

Although the notices were duly served upon the OP nos. 1 and 2 and they appeared before the Commission they did not file any W.V. Later, they did not appear or file evidence etc and the case proceeded ex parte against OP nos. 1 and 2.

Perused and considered the evidence on record of the complainant and the annexure filed with the complaint petition.

Points for decision are

• Whether the complainants are consumers
• Whether there is deficiency of service
• Whether the complainants are entitled to any relief

The complainants in this case are consumers since they handed over vacant plot of land to the OP no. 1 & 2 for development. The OP nos. 1 & 2 failed to handover the owners’ share to the complainants, hence there is a deficiency  of service on the part of OP nos. 1 & 2. Therefore, the complainants are entitled to relief as prayed for.

Hence it is ordered

The complaint case no. 899/2019 is allowed ex parte. The OP no. 1 & 2 are directed to pay:

• Rs. 18,00,000/-  as total compensation for  failing to deliver the service, as per agreement relating to the share of the complainant, 
• Rs. 3,00,000/- as cost of a car parking space of 120 sq. ft,
• Rs. 13,00,000/- as cost of one agreed shop (157.53 sq. ft.),
• Rs. 2,00,000/- as cost for another covered space (47.12 sq. ft.),
• Rs. 3,00,000/- for additional amount as was to be given as promised,
• Rs. 50,000/- as litigation cost, all within 90 days from date of pronouncement of order. If OPs no. 1 & 2 fail to comply with this order within stipulated time, the complainant will be at liberty to put this order into execution.

          CC/899/2019 stands disposed of accordingly.