Date of filing : 15.03.2018
Judgment : Dt.09.09.2020
Mrs. Balaka Chatterjee, Hon’ble Member
This petition of complaint is filed under section 12 of the C.P.Act, 1986 by Sri Subir Bhattacharya alleging deficiency in service on the part of the opposite parties (referred as OP hereinafter) namely (1) M/s UMANJANA, (2) Sri Dipu Banerjee and (3) Sri Sibsankar Chatterjee.
Case of the Complainant, in brief, is that the Complainant being desirous to develop a plot of land owned by him having premises No.2073 at Brahmapur, P.S.-Bansdroni, Kolkata-700 096 contacted OP and entered into a Development Agreement o n 10.1.2014 with OPs for constructing a multistoried building thereon. The Complainant has stated that as per said agreement the Complainant was entitled to get 40% of total sanction F.A.R comprising flat No.102 measuring 780 sq.ft. and Flat No.105 measuring 740 sq.ft. It is stated by the Complainant that subsequently another Supplementary Agreement was executed by and between the parties on 19.12.2014 since total area of flat No.102 and flat No.105 was much lesser than 40% of total FAR.However, by executing the Supplementary Agreement the OPs promised to pay an amount of Rs.5,75,000/- to the Complainant for the shortfall area. The Complainant has further stated that though the OPs handed over the flats to the Complainant but OPs did not pay the promised amount to him and, hence, being aggrieved, the Complainant by filing the instant Consumer Complaint prayed for direction upon the OPs to pay Rs.5,75,000/- together with interest @18% p.a. from 19.9.2016, to reconstruct the exterior walls of the building, to engage an Engineer Commissioner for inspection, to pay Rs.12,00,000/- towards compensation and Rs.50,000/- as cost of litigation.
The Complainant annexed photocopy of Development Agreement dt.10.01.2014. Supplementary Development agreement dt.19.12.2014, possession letter dt. 19.9.2016.
The OP contested the case by filing written version denying and disputing all the allegations made out in the petition of complaint stating inter alia, that the Complainant being the owner of a piece of land lying and situated at Brahmapur, P.S.-Regent Park, presently Bansdroni, Dist.-South 24-Parganas decided to develop the said plot of land by constructing multistoried building entered into a Development Agreement with OP on 10.01.2014 and as per said Agreement the owner was entitled to get 40% of the total FAR but during the period of construction, it was noticed that as per floor plan it was not possible to handover 40% of FAR and, therefore a Supplementary Agreement was executed by and between the parties and as per said agreements the Complainant was entitled to get Flat No. F 102 on the first floor measuring about 790 sq.ft., flat No.T105 on the third floor measuring about 740 sq.ft. and 40% of car parking space and Rs.5,75,000/- but on request of the Complainant the OPs constructed a flat on the ground floor on condition that Rs.5,75,000/- the Complainant was entitled to get would be adjusted with the cost of construction. The OPs have stated that a flat measuring about 500 sq.ft. was constructed on the ground floor comprising an area of more than 40% of the entire car parking space and the Complainant was agreeable to pay @ Rs.1,000/- per sq.ft. for the additional area amounting Rs.20,000/-. The OPs have further stated that the Complainant has transferred the said flat in favour of one Ratan Mahato by registering a Deed of Conveyance and said Ratan Mahato has paid Rs.2,00,000/- to the OPs but the OPs on good faith have returned the said amount to the Complainant by Account Payee cheque being No.304732 drawn on Axis Bank. Further it is stated by the OP that apart from said flats the Complainant is also in possession of one garage measuring about 130 sq.ft.
The OP annexed Deed of Conveyance dt.6.3.2017 executed by and between the Complainant and one Ratan Mahato.
The Complainant and the OPs adduced evidence followed by cross-examination in the form of questionnaire and reply thereto.
Points for determination
- Whether there is any deficiency in providing service on the part of the OP.
- Whether the Complainant is entitled to the relief as prayed for.
Decision with reasons
Point Nos.1 & 2
Both the points are taken up together for comprehensive discussion and decision.
Admittedly a Development Agreement was executed by and between the parties on 10.1.2014 for constructing a multi-storied building at premises No.2073 Brahmapur, Kolkata-700 096. It appears from said Development Agreement dt.10.1.2014 that the owner was entitled to get 40% of total sanctioned FAR together with non-refundable money of Rs.50,000/- which would be paid by the builder to the owner.
On perusal of Supplementary Development Agreement executed by and between the parties on 19.12.2014 it appears that the owner’s allocation runs as “one self contained flat being flat No.F-102 on the first floor on the north East side, back portion.
One self contained flat being flat No.T-105 on the third floor on the South East side Front portion apart from the above the Builder/Second party herein will pay the owner /First party herein a non-refundable amount of Rs.5,75,000/- at the time of handover of the owner’s allocation.
As per Development Agreement, the owner will get 40% of the parking space on the ground floor.”
It is specific allegation of the Complainant that the OP has not paid Rs.5,75,000/- to the Complainant as per terms of the Supplementary Development Agreement and, and, moreover, exterior wall of the building has not been constructed as per terms of the Agreement for which cracks have been appeared in the inner wall of the building. The Complainant admitted that he has been handed over two flats as per terms of the Supplementary Development Agreement. The OP in his defence has stated that it was agreed between the parties that Rs.5,75,000/- would be paid by the OP for shortfall area towards 40% of FAR which was not possible to handover to the owner as per floor plan but the OP was requested to construct a flat on the ground floor measuring about 500 sq.ft. and the OP constructed the flat as a building contractor but the said flat was constructed encroaching the space meant for car parking which resulted monetary loss to the OP. It is stated that the Complainant sold out the ground floor flat to one Ratan Mahato. Deed of conveyance dt.6.3.2017 executed by and between the Complainant and one Ratan Mahato reveals that the Complainant executed the Deed of Conveyance in favour of Ratan Mahato in respect of a flat being No.G 107 having super built up area of 500 sq.ft. on receiving consideration amount of Rs.7,00,000/- which suggests that the Complainant apart from two flats being Flat Nos. F 102 & T 105 received another flat being No.G-107 on the ground floor of the said building. The OP admitted that he constructed the said flat as a building contractor after obtaining completion certificate from KMC but, as per the sanctioned building plan, there was no provision for construction of any flat on the ground floor.
It is alleged by the OP that the Complainant did not pay 60% of the consideration amount of the ground floor flat to the OP as per promise made by them.
In course of argument Ld. Advocate for the Complainant submitted that the ground floor flat constructed by the OP is not an issue to the instant Consumer Complaint. Hence it may not be taken into consideration. On perusal of reply filed by the Complainant, it appears that in reply to the question No.3, the Complainant stated that the ground floor flat is not an issue to the instant dispute and in response to the question No.6, 7, 8, 9 & 10 advanced by the OP, the Complainant stated that he was unaware about the measurement of the flat, to whom he sold out the flat and consideration amount of the said flat. Deed of Conveyance executed by and between the Complainant and one Ratan Mahato clearly shows that the Complainant himself sold out the said ground floor flat. The OPs have claimed that the OPs constructed the ground floor flat as a contractor. There is no denial on the part of the Complainant regarding the said claim. It is also admitted by the parties that the ground floor flat has been constructed illegally in violation of sanctioned building plan.
It is, therefore, clear that there must have been some settlement made between the parties regarding illegal construction of ground floor flat and it is also observed that both the parties have been involved with the said matter.
Under such state of affairs, we are of opinion that the Complainant has not come before this Forum with clean hands and, therefore, is not entitled to any relief.
Point Nos.1 & 2 are decided accordingly.
Hence
ordered
That CC/132/2018 is dismissed on contest without cost.
