Hon’ble Mrs. Soma Bhattacharjee, Member
CC/363/2018 has been filed by Smt. Rupa Sarkar u/s 17 (a)(i) of C.P. Act, 1986 against M/s Samridhhi Construction and Sri Bivas Pradhan, its proprietor.
The gist of the complaint is as follows: The complainant is a landowner of a plot of land of 1 cottah, 8 chittaks more or less at premises no. 121/1 chawk Garia Kolkata 700094, P.S Pancha Sayar within word no. 109 of KMC, in the District of South 24 Pgs. She acquired this by a deed of gift made by her father. The OPs approached her to develop the said plot of land and the development agreement was signed between them on 30.05.2014 and also registered on the same date in the office of the D.S.R III at Alipore. The agreement was for construction of a straight 3 storied building as per sanctioned building plan. Thereby the complainant became a consumer according to Section 1 (i)(d) of C.P. Act, 1986 and the OPs became service provider as per the Act.
It was agreed that the OPs would complete the construction of the proposed building within 24 months to the complainant whose allocation was the entire 1st floor. As per the agreement the OPs and the OPs would pay Rs. 1,50,000/- to the complainant of which only Rs. 50,000/- was paid to her after the agreement was signed.
However, even after 36 months elapsed from the registration of the development agreement, the OPs failed to complete the construction. On repeated verbal request by the complainant, the OPs did not do the needful to handover possession of the owner’s allocation. The OPs neither paid the remaining Rs. 1,00,000/- payable to the complainant and they continued to avoid the payment till the date of filing this complaint. The complainant was paying license fees of Rs. 8500/- per month from the month of November, 2017 as license fees for her alternative hired accommodation.
The complainant served notice upon the OPs through her lawyer on 06.03.2018. The OPs replied to this letter with some false and frivolous plea for which the complainant was compelled to file CC/363/2018. The cause of action arose on 12.03.2018 when the OPs refused to accept their deficiency in service and unfair trade practice and the flat remained inhabitable. The complainant filed an amended complaint which was accepted by the Commission. Although the OP nos. 1 and 2 filed W.V they did not file any additional W.V on the amended complaint.
The OP nos. 1 and 2 submitted in the W.V that the remaining one lakh rupees, payable to the complainant, was already taken by the complainant’s father. However no documentary evidence has been filed to this effect. The OPs stated that the complainant had already taken forcible possession of the owner’s allocation and made certain deviation and construction in her portion of the building.
All materials and documents filed in the record have been considered carefully. Evidence has been appraised. Heard the argument of the Ld. Advocate for the complainant. None argued on behalf of the OPs. On careful consideration it appears that the OP nos. 1 and 2 are deficient in handing over complete share of owner’s allocation notwithstanding the signing of development agreement with the complainant.
The OPs have failed to acquire completion certificate within the date as per development agreement indicating that the building was not complete at the time of filing of this consumer complaint.
The Ld. Counsel of the complainant has cited a case law: 2017 (3) CPR (NC) 729 :- “Builder who failed to complete project and deliver possession of apartment to complainant without any justifiable reason is guilty of deficiency in service as also unfair trade practice.”
In terms of facts that have emerged from the documents and submissions and the position of the law cited above the CC/363/2018 succeeds on contest.
The Opposite Parties nos. 1 & 2 are hereby directed to :
(i) handover complete flat as per first and second schedule of the development agreement dt. 30.05.2014, to the complainant within 60 days of pronouncement of this order.
(ii) handover completion certificate to the to the complainant within 60 days of pronouncement of this order.
(iii) to pay balance amount of Rs.1,00,000/- to the complainant within 60 days of pronouncement of this order as per development agreement dt. 30.05.2014 along with simple interest @9% p.a. from 06.03.2018, the date of issue of notice to OPs.
(iv) Correlating with the extent of mental agony and harassment, to pay a compensation of Rs. 2,00,000/- to the complainant within 60 days of pronouncement of this order.
(v) to pay a litigation cost of Rs. 10,000/- within 60 days of pronouncement of this order.
If the Opposite Parties are failed to comply with this order, Complainant will be at liberty to put the order into execution.
CC/363/2018 is disposed of being allowed on contest.
Free certified copies be given to all parties.
