Order-14.

Date-21/04/2017.

       Shri Kamal De, President.

This is an application u/s.12 of the C.P. Act, 1986.

            The case of the complainant, in short, is thatthe complainant with intention to obtain a small flat on tenancy of 250 sq. ft. covered area on the 2^nd floor, Premises No.5, Karim Hossain Lane, Kolkata – 700 017 approached OPs-1 and 2 (developers).  An agreement was also executed dated 03-10-2009 in between the parties whereby it was agreed that the incoming tenant shall pay the cost of construction  at the rate ofRs.1,500/- and the rent that has been settled is Rs.1.50p per sq. ft. per month.  The cost of construction stood at Rs.3,75,000/- of which an amount of Rs.2,85,000/- has already paid which is more than 75 percent of the total amount payable to the promoter as the cost of construction.  It is alleged that OP2 left the complainant with false promise and failed to make ready of the flat or deliver it and almost 7 years have elapsed but OPs 1 and 2 have not complied with the contractual agreement.  It is stated that cause of action is continuing as the flat in question is neither readied nor delivered to the complainant.  The complainant on 22-09-2016 made a visit to the said premises to see the development of construction but the complainant was surprised to note that all flats or the units of the 2^nd floor of the said premises have already been acquired by some unknown people.  The complainant has alleged deficiency in service and unfair trade practice against the OPs.  Hence, this case.

            OPs 1 and 2 have contested the case in filing written version contending, inter alia, that the case is not maintainable in its present form and prayer.  It is stated that the complainant/incoming tenant approached the OP for letting out a flat on tenancy basis measuring 250 sq. ft. on the 2^nd floor at Premises No. 5, Karim Hossain Lane, Kolkata – 700017.  Complainant/incoming tenant also paid the construction charges of the said flat  at the rate ofRs.1,500/- per sq. ft. covered area basis i.e. total cost raised to 250 sq. ft.  at the rate of Rs.1,500/- per sq. ft. i.e. Rs.3,75,000/- and complainant paid Rs.2,85,000/- in instalment.  It is also stated that the rate of rent of the said flat is settled at Rs.1.50 per sq. ft. per month payable according to English calendar month.  The landowner authorized and empowered the developer/building contractor i.e. contesting OPs to construct the building and to collect construction cost from the incoming tenants to release the cost of construction of the constructed premises No. 5, Karim Hossain Lane, Kolkata – 700 017.  It is stated that the OP has already constructed the said flat as well as the said entire building by investing a huge amount of money but after completion of the said building in question the landowner in collusion with the complainant and with the help of local hoodlums have captured a huge construction area and not allowing these OPs to enter into the said building and therefore the OPs are unable to deliver the subject flat to the complainant.  It is stated by the OPs that these OPs are obliged to pay an amount of Rs.2,85,000/- to the complainant. It is stated that these OPs have neither made any negligence nor committed any deficiency in service in this regard.  These OPs have prayed for dismissal of the case.

            OPs 3 and 4 have neither appeared nor contested the case and the case has proceeded ex parte against the OPs.

Point for Decision

1. Whether the OPs have been deficient in rendering services to the complainant?
2. Whether the complainant is entitled to get the relief as prayed for?

Decision with Reasons

We have perused the documents on record i.e. Xerox copy of the agreement dated 03-10-2009 and other documents on record.

            It appears that the complainant entered into an agreement with Ops 1 and 2 for taking the subject flat on tenancy on 03-10-2009 whereby it was agreed that the incoming tenant shall pay the cost of construction  at the rate ofRs.1,500/- per sq. ft. and the rent has been settled  at the rate ofRs.1,50 per sq. ft. per month.  It also appears that the complainant has paid an amount of Rs.2,85,000/- as against the total consideration of Rs.3,75,000/- as the cost of total construction of the subject flat.  we also find that the first payment of Rs.50,000/- was made on 03-10-2009 and the 2^nd payment of Rs.85,000/- was made on 08-11-2009 and third payment was made of Rs.1,50,000/- on 08-02-2010 as it appears from the back of the non-judicial stamp paper where the agreement of such acquisition of the flat tenancy is executed.  It also appears that despite of making of payment of more than 75 percent within 4 months from the date of execution of agreement dated 03-10-2009, OPs 1 and 2 could not ready the flat or hand it over to the complainant within 12 months from the date of execution of the agreement.  It is stated by the OPs1 and 2 that the building in question is captured by some local hoodlums and is not allowing the OPs to enter into the said building and therefore, the OPs are unable to deliver the booked flat.  It is also alleged by the complainant that OPs 1 and 2 have not obtained Kolkata Municipal Corporation Sanctioned Plan for construction of the said premises and the entire premises has been built without obtaining the municipal corporation sanctioned plan.  Be that as it may, we find that the OPs 1 and 2 have failed to make ready the subject flat or handover to the complainant as per contractual obligation.  We think that there has been clear deficiency in service on the part of the OPs 1 and 2. 

OPs 3 and 4, however, did not appear in the entire proceeding despite notice and service return.  OPs1 and 2 have also admitted that they have received Rs.2,85,000/-.So the complainant has been able to establish the deficiency in service.  In the given circumstances as the OPs 1 and 2 have failed and neglected to make ready the flat for giving in tenancy to the complainant.  We think that it would be befitting to pass an order for refund of money with interest in favour of the complainant.  We are also fortified in this regard by decision of Hon’ble N.C.D.R.C. reported in 2011(4) CPJ 481. 2011(4) CPR 235. 2011(3) CPC 499 National Consumer Disputes Redressal Commission, New Delhi.

In result, the case merits success.

Hence,

Ordered

That the instant be and the same is allowed on contest against the OPs 1 and 2 and ex parte against the OPs 3 and 4.

            OPs 1 and 2 are directed to refund the amount of Rs.2,85,000/- with interest  at the rate of9 percent p.a. w.e.f. 03-10-2009 till compliance from the date of this order.

            OPs 1 and 2 are also directed to pay an amount of Rs.10,000/- to the complainant for causing harassment, mental agony and pain within the said stipulated period.

            Ops 1 and 2 are also directed to deposit the amount of Rs.10,000/-  to this Forum as punitive damage within the said stipulated period.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act,1986.