DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 143_ OF ___2015
DATE OF FILING : 24.3.2015 DATE OF PASSING JUDGEMENT: 19.01.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Samar Dhar
- Sri Amar Dhar, both sons of late Subal Dhar of 63, K.P Roy Lane, P.S Garfa, Kolkata – 78.
- Sri Bhola Nath Dhar,s/o late Sailen Chandra Dhar of 63, K.P Roy Lane, P.S Garfa, Kolkata – 700078.
- Smt. Papiya Chakraborty,w/o Sri Rabin Chakraborty of 28J/1B, Naktala, Kolkata – 700084.
O.P/O.Ps : 1. M/s Bakul Associates, 4/102, Kali Kumar Majumder Road, Santoshpur, P.S Purba Jadavpur, Kolkata – 75 ,represented by its Partners Sri Sanjib Mitra and Sri Santanu Bhowmick.
2. Sri Sanjib Mitra, son of Sri Arun Kumar Mitra of 15K, K.P Roy Lane, P.S Garfa, Kolkata – 700031.
3. Sri Santanu Bhowmick,son of late Amulya Bhusan Bhowmick of 34, Green Avenue, Santoshpur, P.S Purba Jadavpur, Kolkata – 700075.
Pfororma O.Ps : 4. Sri Tapan Dhar,son of late Subal Dhar of 63, K.P Roy Lane, P.S Garfa, Kolkata – 700078.
- Smt. Sikha Das, wife of Sri Kartick Chandra Das of 63, K.P Roy Lane, P.S Garfa, Kolkata-700078.
_____________________________________________________________________
J U D G E M E N T
Sri Ananta Kumar Kapri, President
This is a complaint filed under section 12 of the C.P act, 1986 by the complainant ,alleging deficiency in service on the part of the O.P nos. 1,2 and 3 i.e the developers.
Tobe brief, the complainants ‘case is that they and the O.P nos. 4 and 5 are the joint owners of the scheduled property along with their mother namely Dhira Dhar. According to them, they have inherited the property after the death of their predecessor namely late Subal Dhar. The said complainants entered into a Development Agreement , as alleged in the complaint, with O.P nos. 1,2 and 3 i.e the developers for a multi storied building to be constructed by the developers as per Building Plan. They also executed a registered General Power of Attorney in favour of O.P nos. 1,2 and 3 on 24.9.2014 . O.P nos. 1,2 and 3 thus undertook to construct a G+3 building on the scheduled property and also agreed in terms of the agreement to allot 1900 sq.ft built up area on different floors to the land owners i.e the complainants and O.P nos. 4 and 5 and their mother Dhira Dhar also. It was also agreed that the developers would pay Rs.3,75,000/- to the land owners in addition to the allotment of the constructed flats as agreed by and between them. The possession of the flat was agreed to be delivered within 18 months from the date of Development Agreement i.e 21.9.2008 , which may be extended for six months. But, construction of the flat was not made complete within the stipulated time and possession of incomplete construction was delivered to the land owners on 8.12.2014. The developers did not complete the construction work inspite of several meetings between the complainants and the developers. It is alleged in the complaint that only 1700 sq.ft built up area has been provided to the land owners in violation of the terms of the agreement. Dhira Dhar, the mother of the complainants died on 23.7.2011.The General Power of Attorney executed in favour of the developers thus got invalidated and complainants also cancelled it. Now, complainants have come up before this Forum with the filing of the instant case and have thereby prayed for following reliefs:
- To deliver remaining 200 sq.ft built up area or in the alternative, to pay monetary compensation for that area.
- To direct the developers to complete the building in terms of the Development Agreement dated 21.09.2008.
- To restrain the developers from acting illegally on the basis of the General Power of Attorney dated 24.9.2014.
- To direct the developers to pay compensation of Rs.2 lacs for delay , harassment and litigation cost.
Hence, this case.
The O.P nos. 1,2 and 3 have filed written version of their statements to contest the case. According to them, they completed the construction work of the flats within 18 months as agreed upon between the complainants and them. The land owners vacated the scheduled land in the month of December, 2011 and possession was handed over to them in the month of December, 2013. So, to them, the construction became completed within two years of the date of agreement and there is no variation in so far as the terms of the agreement is concerned. Construction was made according to the sanctioned plan. Developers are ready to adjust the shortfall in built up area, if there is any. It is the further case of the developers that they suffered huge loss for revocation of general power of attorney by the complainants ; they could not execute the sale deed in favour of the intending purchasers and ,therefore, the intending purchasers are not making payment of consideration money to them. So, the O.Ps, developers, have claimed a compensation of Rs.8 lacs for financial loss and also for suffering mental suffering, pain and agony.
Upon the pleadings of the parties the following issues are formulated for consideration.
I S S U E S
- Is the case maintainable in its present form and in Law?
- Have the O.Ps, developers committed deficiency in service ?
- Are the O.Ps/developers entitled to counter-claim as raised by them?
Evidence of the parties :
The complainants have filed affidavit in chief which is kept in the record. On the other hand, O.P nos. 1,2 and 3 have not filed any affidavit-in-chief. They are not willing to file any evidence vide order no.32 dated 12.6.217. The documents filed by the parties are kept in the record.
DECISION WITH REASONS
Point no. 1 :
This issue has not at all figured in the argument canvassed on behalf of the parties. On perusal of the complaint, written version as filed by the O.Ps, it is found that the case is quite maintainable in its present form and in Law.
Hence, this issue goes answered in favoured of the complainants.
Point no.2:
Ld. Lawyer appearing for the O.Ps has contended that they have delivered flats measuring 1900 sq.ft built up area to the complainants in accordance with the terms of their agreement and for this reason no act of deficiency in service has been committed by them. It is argued on behalf of the complainants that the complainants have not been delivered 1900 sq.ft built up area ; they are entitled to 200 sq.ft built up area more in terms of the agreement reached by and between the parties. The developers i.e O.P nos.1,2 and 3 have committed a gross deficiency in service by delivering only 1700 sq.ft built up area to them. So, the developers will have to make good the shortfall or they will have to return the price for the shortfall of the built up area not delivered to the complainants.
Perused the complaint and the written version filed on behalf of the O.Ps. Also perused the Commissioner’s report kept in the record. Considered all these along with the submission of the ld. Lawyers appearing for the parties. It is submitted on behalf of the developers that they have delivered 1900 sq.ft built up area to the land owners and ,therefore, they are not under any obligation to make good the shortfall as alleged by the land owners.
Let us have a look to the terms of the agreement dated 21.09.2008. It is clearly laid down in para 2 at page 7 of the agreement which runs thus,
”That the Clause no.1 hereinabove in subject to the condition that the Develop shall hand over to the owners:-
- 400 sq.ft built up area in 1st floor, East side.
- 400 sq.ft built up area in 2nd floor, North East Side.
- 400 sq.ft built up area in 2nd floor North West side.
- 400 sq.ft built up area in 3rd floor, North east side.
- 300 sq.ft built up area in 3rd floor, North west side.
The owners in addition to above, will get Rs.3,75,000/-(Rupees Three Lacs Seventy Five Thousands only ) in cash or cheque out of which Rs.30,000/- will be paid at the time of execution of this agreement and Rs.1,50,000/- will be paid after obtaining the sanctioned building plan from KMC Authority and rest of the amount of Rs.1, 95,000/- will be paid after completion of the proposed new building”.
The agreement has never said that 1900 sq.ft built up area is to be delivered to the complainants as a whole. There is a clear specification regarding the owners’ share in the built up area and also regarding the floors thereof. It is clearly laid down that 400 sq.ft built up area to be allotted on the first floor and third floor each ;400 sq.ft built up area on the second floor in North East side and another 400 sq.ft built up area on the same second floor in north west side and 300 sq.ft built up area on the third floor in north west side of the building. So, it is found that flats with built up areas are allotted on different floors with definite specification. This is the spirit of the agreement and the developers will have to honour the spirit of the agreement. They cannot say that they have provided 1900 sq.ft in all to the complainants. It is their bounden duty to provide built up area according to the specification laid down in the agreement. But they have not done so. Regards being had to this aspect, we feel no hesitation to say that the developers have committed deficiency in service by not delivering the built up areas on different floors according to the specifications laid down in the terms of the agreement.
Given the context, there are two approaches open to us-1) to direct the developers to make good the shortfall in built up area or 2) to direct the developers to refund the price of the shortfall area as prevailed on the date of agreement with interest till date of full realization.
The present market price of the built up area is not known to us. No evidence whatsoever has been led by the complainant in this regard, so that we can determine the present market price of the built up area of the subject building. In this circumstances, we are in favour of putting our casting vote in favour of the 2nd point referred to just above. On perusal of the agreement we find no trace of any prevailing market price mentioned in that agreement. So, in this circumstances we are on the look out of any other documents on record which will reflect some light on the market price of the flats at that time or thereabout. While perusing the record we come across an agreement for sale which is marked as Annexure “G” filed by the complainant. This agreement i.e Annexure “G” is executed by the O.P nos. 1,2 and 3 in favour of intending purchaser of the flat and we think that the market price may be available if this document is taken into consideration.
On perusal of this document (annexure G)it is found that one square feet of land in the flat is sold at Rs.1537/-. But this price of flat includes the price of land on which stands the building. In the instant case, the complainants are land owners and , therefore, they need not pay for the land upon which the building stands. In other words, the price of the flat will be something less than the aforesaid price of the flat i.e Rs.1537/- per sq.ft and we are inclined to fix the price of the flat at the time of execution of the agreement at Rs.1000/- per sq.ft .
Now, to determine what the shortfall is in the flats allotted to the complainants. For answer to this question we need not travel any more. In para 10 at page 6 of the complaint itself, there is an averment of the complainants , which goes thus “That the flats that are in possession of the complainants are less by 140 sq.ft”. This averment of the complainants unhesitatingly establishes that the shortfall in the flat allotted to them by the developers is 140 sq.ft only and ,therefore, the developers are required to pay for this shortfall only. The price of 140 sq.ft is Rs.`1,40,00/-( 140 sq.ft x 1000/sq.ft) and the builders will have to pay this amount to the complainants for shortfall of the flats allotted to the complainants by them.
The complainants have also prayed for compensation for causing delay in delivery of possession of the flat. The O.P nos. 1,2 and 3 have not admitted that there has been delay in delivery of possession of the flat. According to them , the possession has been delivered within the time specified in the agreement i.e within 18 months from the date of execution of the agreement. But this version of the developers appears to be not correct. It is true that the possession of the flats was delivered to the complainants in the month of December, 2013. Building Plan was sanctioned by the developers on 29.10.2010. Taking all this aspects into consideration we feel no difficulty to say that the developers failed to deliver the possession of the flats to the complainants within the schedule time and it took about 38 months to deliver the flats to the complainants by the developers i.e O.P nos. 1,2 and 3. For this delay in delivery of possession of the flats, the developers will have to pay compensation to the complainants. The complainants are also entitled to compensation for harassment and mental agony. This compensation is determined tobe Rs.1lac and the developers will have to pay this amount of compensation to the complainants.
It is contended on behalf of the land owners that the Power of Attorney executed by them in favour of the developers has become invalidated due to the death of Dhira Dhar, who was one of the signatories to the Power of Attorney.
In this regard we feel constrained to say that the Power of Attorney does not become invalidated due to the death of Dhira Dhar, one of the signatories to the Power of Attorney. The developers have interest in the subject matter of the Power of Attorney and, therefore, Section 202 of the Contract Act is a clear bar to invalidation of such kind of Power of Attorney. That Power of Attorney was valid and it is still valid and the developers are at liberty to act upon that Power of Attorney.
Hence, this point is answered accordingly in favour of the complainants.
Point no.3:
In the instant case the O.P, developers have claimed Rs.8 lacs as compensation for the financial loss suffered by them , as the complainants have not executed any power of attorney in their favour to enable them to sell their share in the flats to the intending purchasers. This claim of the developers is in the nature of a counter claim. There is no law provided in the C.P Act 1986 regarding counter claim by the O.Ps. In absence of such a law we are unable to deal with the counter claim as raised by the developers.
Hence, this point is answered in the negative against the O.Ps.
In the result the case succeeds.
Hence,
O R D E R E D
That the complaint case be and the same is allowed on contest against the O.Ps/developers i.e O.P nos. 1,2 and 3 with cost which is quantified to be Rs.10,000/- and allowed exparte against the O.P nos. 4 and 5 without cost.
The O.P nos. 1,2 and 3 will remain jointly and severally liable for making payment to the complainants. They are directed to pay Rs.1,40,000/- to the complainants with interest @12% p.a from December, 2013 i.e the month of delivery of possession of the flat till full realization of the same.
The O.P nos. 1,2 and 3 are also directed to make payment of Rs.1 lac as compensation to the complainants for delay in delivery of possession and for harassment caused to the complainants, within a month of this order, failing which the compensation amount will bear interest @12% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
O R D E R E D
That the complaint case be and the same is allowed on contest against the O.Ps/developers i.e O.P nos. 1,2 and 3 with cost which is quantified to be Rs.10,000/- and allowed exparte against the O.P nos. 4 and 5 without cost.
The O.P nos. 1,2 and 3 will remain jointly and severally liable for making payment to the complainants. They are directed to pay Rs.1,40,000/- to the complainants with interest @12% p.a from December, 2013 i.e the month of delivery of possession of the flat till full realization of the same.
The O.P nos. 1,2 and 3 are also directed to make payment of Rs.1 lac as compensation to the complainants for delay in delivery of possession and for harassment caused to the complainants, within a month of this order, failing which the compensation amount will bear interest @12% p.a till full realization thereof.
Let a free copy of this order be given to the parties concerned at once.
Member Member President
