Date of filing: 10/02/2021

Date of Judgment: 22/06/2023

Mrs. Sashi Kala Basu, Hon’ble President.

This complainant is filed by Sri Anirban Hira under section 35 of the Consumer Protection Act, 2019 against opposite parties (referred as OPs hereinafter) namely (1) Om Shiram Enterprise being represented by its partners (2) Smt. Mita Gupta (3) Smt. Mamata Ghosh and (4) Sri Sourav Chakraborty, alleging deficiency in service on the part of the OPs..

Case of the complainant in short is that he being the owner, for the purpose of construction of G+3 storied building entered into a development agreement with the OPs which was registered on 22.06.2018 and also executed and registered power of attorney in favour of OPs on 22.06.2018. As per the terms of the agreement within 30 months from the date of sanctioned plan from Municipality, whole construction work was to be completed. But two and half years passed but the OPs have not started the construction of the building. Time was the essence of the contract. Complainant also could not approach any other developer as the OPs kept saying that they will start and complete the construction. So the present complaint is filed praying for directing the OPs to pay sum of Rs. 5,00,000/- as compensation and Rs. 60,000/- as litigation cost.

On perusal of the record it appears that in spite of service of notice also through publication in the newspaper, OPs did not turn up and so the case has been heard exparte.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

In order to substantiate his claim, complainant has filed the copy of development agreement and registered power of attorney dated 22.06.2018. On a careful scrutiny of the development agreement entered into between the parties, there appears certain terms and conditions which are reproduced hereunder:-

In the caption “The Requisites” Clause (f) it says “Developer shall make their last endeavour to complete the said building in all respect as to be fit for occupation within 30 months, after plan sanction unless prevented by reason beyond the control of the developers i.e. strike, earthquake, riots wherein period of construction shall be extended beyond 30 months or as would be reasonable subject to written consent from the owners”.

In article VI Clause – 3, the agreement specifics that “developer shall submit the building plan before the Baranagar Municipality within one month from the date of execution of the agreement after being approved the same by the owners”.

Article X of the agreement says “After signing this agreement all original documents relating to the said premises i.e. title deed, parcha, khajna, tax receipts should be handed over to the developer by the owner within 7 days for the purpose of construction work which will be returned to the owner after obtaining the revised plan”.

Article – IV in the development agreement is very relevant as it says that “it is hereby recorded and confirmed that owner shall put to developer in possession of the said property from the date of sanction of the plan to be sanctioned by the Baranagar Municipality or from the date of providing alternative accommodation to the owner whichever is earlier”.

It may be pertinent to point out that as per the terms and conditions referred to above, building plan was to be submitted by the developer for its sanction within one month after getting it approved by the owner. So when no plan was placed before the owner for approval, complainant the owner knew about it immediately after expiry of the said one month. But no letter or communication was made by the complainant with the OP as to why the plan was not placed. It is not explained as to why complainant remained silent for two and half years in spite of not taking any step by the developer for non-submission of the plan.

Similarly complainant has not stated anywhere whether relevant title deed, parcha and tax receipts were handed over to the developer as per the terms referred to above for taking step for sanction of the building plan. When time was essence of the contract, complainant had all the option to cancel the agreement or revoke the power of attorney which was not done for the reason best known to the complainant.

It may further be pointed out that as per Memo of Consideration in the development agreement, complainant has acknowledged to have received sum of Rs. 5,00,000/- in total from the developer as security deposit which was to be returned when the developer hand over the owner’s allocation in the newly constructed building. Complainant remained completely silent regarding the said sum of Rs. 5,00,000/- which is with him. It is nowhere mentioned in the complaint as to what happened to the said sum of Rs. 5,00,000/-. So apparently complainant has not come with clean hands before this commission and thus we find complainant is not entitled to any relief as prayed for.

Hence

            ORDERED

CC/82/2021 is dismissed exparte.