DATE OF FILING : 17.09.2014.
DATE OF S/R : 05.11.2014.
DATE OF FINAL ORDER : 27.01.2016.
Smt. Dipali Nandi,
wife of Sri Hiranmly Nandi,
residing at 15/2, Chandranath Chatterjee Street,
P.S. Bhowanipur, Kolkata 700025
and presently residing at ‘Labanya Apartment,
64, Makhla no. 1, Government Colony,
P.O. Makhla, P.S. Uttarpara,
District Hooghly,
PIN 71225. , ………………………………………………………… COMPLAINANT.
- MUM Developer,
having its office at 9, P.K. Ganguly, Road,
P.O. & P.S. Bally, DistrictHowrah,
represented by its proprietor,
Smt. Swapana Patra,
wife of Sri Deb Kumar Patra,
residing at 9 ( BL 302 ), P.K. Ganguly Road,
P.O. & P.S. Bally,
District Howrah,
PIN 711201.
- Mr. Kamal Kumar Nandan,
son of late BalaiChandra Nandan,
residing at 9 N, TurfRoad, P.S. Bhabanipore,
Kolkata 700025 and presently at
191, Maniktala Road, Makhla, P.S. Uttarpara,
District Hooghly,
PIN –712245. ………………………………………………OPPOSITE PARTIES. .
P R E S E N T
Hon’ble President : Shri B. D. Nanda, M.A. ( double ), L.L.M., WBHJS.
Hon’ble Member : Smt. Jhumki Saha.
Hon’ble Member : Shri A.K. Pathak.
F I N A L O R D E R
- This is an application U/S 12 of the C.P. Act, 1986 filed by the petitioner, Dipali Nandi, against the o.p. no. 1, Mum Developers, represented by Swapna Patra and proforma o.p. no. 2, Kamal Kumar Nandan, praying for a direction upon the o.p. no. 1, to deliver khas possession of his owners allocation i.e., one flat in the 2nd floor and one in the ground floor having covered area of 900 sq. ft. and 640 sq. ft. respectively and one road side shop room of 80 sq. ft. in the ground floor and also to pay balance consideration of Rs. 95,000/- out of the total agreed sum of Rs. 2,70,000/- and to pay compensation of Rs. 4 lakhs and cost.
- The case of the petitioner is that she is absolute owner and occupier in respect of bastu land measuring 2 katta 14 chittak 23 sq. ft. in municipal holding no. 191/2, Manicktola Road, P.S. Uttarpara. O.P. no. 2 is the absolute owner and occupier of bastu land measuring 2 katta under the same municipality holding at no. 191 and the o.p. no. 2 requested the petitioner that she may join him to construct a multi storied building with the help of o.p. no. 1/ developer and the petitioner agreed as per terms deed of agreement for developing the property and constructing multi storied building and it was agreed among the parties that the petitioner would get one flat of 900 sq. ft. in the 2nd floor and one flat 640 sq. ft. in the ground floor and one shop room 80 sq. ft. in the ground floor and a total sum of Rs. 2,70,000/- would be paid by o.p. no. 1 to the petitioner and the o.p. no. 2 would get one flat and one shop room and the share of the land owners would be delivered to each of them within a very short time and not later than one year of such agreement and maximum two years. The o.p. no. 1 with active cooperation from the petitioner and o.p. no. 2 got the agreement done as well as the municipal plan sanctioned for construction of G + 3 building. The o.p. no. 1 already paid Rs. 1,25,000/- to the complainant and then Rs. 50,000/- and thus out of the agreed sum of Rs. 2,70,000/- the o.p. no. 1 paid Rs. 1,75,000/- to the petitioner and the due amount is only Rs. 95,000/-. The o.p. no. 1 on 28.01.2014 made the petitioner signed some blank papers making him believe that they would be necessary to raise building and the complainant would get possession before the Durga Puja, 2014. The o.p. no. 1 suddenly requested the petitioner to hand over her original Title Deed dated 28.7.1978 and also the o.p. no. 1 became angry when the petitioner refused to do the same. The o.p. no. 1 completed the building save and except two flats and shop room of the petitioner and handed over possession to the o.p. no. 2 on 17.8.2014 and the o.p.no. 2 performed puja and now residing in the flat. The petitioner requested o.p. no. 1 to hand over share and the o.p. no. 1 avoided her and later on refused to give her completing the same flats and shop room. On 28.8.2014 the o.p. no. 1 and his men and agents threatened the petitioner and her husband with dire consequences and thus the petitioner sent advocate’s letter on 29.7.2014 and filed this case.
- The o.p. no. 1 contested the case by filing a written version denying the material allegations made against her and submitted that the case is not maintainable and also the petitioner has no cause of action and the case is barred by limitation. The o.p. no. 1 further submitted that she would hand over the two flats of 2nd floor and ground floor and one shop room of the ground floor to the petitioner as mentioned in the agreement as she has already paid Rs. 1,25,000/- and Rs. 50,000/- by two cheques dated 11.7.2012 and 16.11.2013. She further submitted that she needed the original deed as the intending purchasers and their advocates needed to verify the same regarding genuineness of land and thus the allegations made against her are all denied and she has no bad intention to complete the construction of the proposed building and she never threatened the petitioner and thus the case filed by the petitioner is totally false and be dismissed with costs and also it is false that she completed the rest part of the building except the share of the petitioner.
- The o.p. no. 2 though served with notice did not appear in the case and thus the case is heard ex parte against him.
5. Upon pleadings of parties the following points arose for determination :
- Is the case maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case ?
- Whether there is any deficiency in service on the part of the O.Ps. ?
- Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
- All the issues are taken up together for the sake of convenience and brevity for discussion and to skip of reiteration. In support of her case the petitioner filed affidavit in chief as well as her ownership document being the deed of the year 1978 showing that she purchased the property from Usha Rani Borman on 28.7.1978 and she also filed copy of the parcha showing her name as the owner and occupier of the bastu land and she paid the rents for the municipal holding. She also filed the memo of understanding executed on 16.7.2012 between her and the Mum Developer wherefrom it is noticed in page 5 para 2 that two flats out of which one measuring 900 sq. ft. covered area on the 2nd floor with three bed rooms, two toilets one kitchen, one dining room and one varadah and another flat measuring 640 sq. ft. covered area in the ground floor with two bed rooms would delivered to the petitioner and also it is mentioned in the 3rd para that a shop room measuring 80 sq. ft. covered area in the ground floor would be delivered to her and the developer i.e., o.p. no. 1 shall pay Rs. 2,70,000/- to the petitioner out of which Rs. 1,25,000/- was paid at the time of agreement and the rest would be paid later on. It is the case of the petitioner that she had received Rs. 1,75,000/- out of the total payment of Rs. 2,70,000/- and she is entitled Rs. 95,000/-. She also filed before this Forum the consent letter of o.p. no. 2 showing his consent for agreement and in their written version the o.p. no. 1 representing Mum Developer submitted that she is ready to handover possession of the two flats and one shop room to the petitioner.
- Thus from the oral evidence of the petitioner as well as from the documents it is clear that the petitioner is entitled two flats and one shop room as the same is conceded by the o.p. no. 1 also. As per agreement the o.p. no. 1 must hand over possession of the share of the petitioner within two years of the agreement i.e., within the month of July, 2014 and now the petitioner filing the case in the month of September, 2014 as she did not get her agreed share even though the o.p. no. 2 entered into his flat in the year 2014.
- This Forum heard the ld. counsel of both sides on the case and also scrutinized averments of the petition of petitioner as well as written version of the o.p. no. 1 and keeping in mind the provisions of law that the land owner allowing her land for development as per agreement with the developer is also a consumer and her dispute between herself and the developer is also a consumer dispute and that being so the petitioner are entitled to the reliefs as prayed for.
- Ld. counsel for the petitioner referred a judgment of our National Commission being the case of Sanjoy Goyal vs. Unitec Ltd. and others wherein it was a case of non delivery of possession of owners’ share even after lapse of six years when the flats were not ready and the National Commission opined that the o.p./ developer should honour their commitment and directed the o.ps. to handover premises within a period of six months on failure to pay extra penalty.
- In the instant case, the petitioner had delivered her land and she is entitled to her share in the multi storied building as per terms of agreement which is not denied by the o.p./ developer when there is evidence on the part of the petitioner that the o.p. no. 2 being another land owner whose land was amalgamated with her land also get his share.
In the result, the claim case succeeds.
Court fee paid is correct.
Hence,
O R D E R E D
That the C. C. Case No. 508 of 2014 ( HDF 508 of 2014 ) be and the same is allowed on contest against the o.p. no. 1 with costs of Rs. 1,000/- as there is no specific mention.
The petitioner is entitled to the relief as prayed for and the o.p. no. 1/ Mum Developer, represented by Swapan Patra, wife of Deb Kumar Patra, is directed to hand over possession of 900 sq. ft. at the 2nd floor being finished flat and 640 sq. ft. at the ground floor finished flat and one shop room of 80 sq. ft. in the ground floor and Rs. 10,000/- as compensation to the petitioner positively within 60 days from the date of this order and also to pay Rs. 95,000/- being the due sum as agreed in the agreement also within 60 days failing which the amount shall carry interest @ 9% p.a. till realization and the petitioner would be at liberty to put the order in execution.
Supply the copies of the order to the parties, free of costs.
DICTATED & CORRECTED
BY ME.
( B. D. Nanda )
President, C.D.R.F., Howrah.
