In  the  Court  of  the

Consumer Disputes Redressal Forum, Unit -I, Kolkata,

8B, Nelie Sengupta Sarani, Kolkata-700087.

CDF/Unit-I/Case No. 12/2010

1)                   Md. Wahid,

G-77, Battikal First Lane,

P.S. Garden Reach, Kolkata-24.                                                                 ---------- Complainant

---Versus---

1)                   Rais Ahmed,

G-117/1, Battikal First Lane,

P.S. Garden Reach, Kolkata-24. 

2)       Lokaiya,

G-228/3, Battikal Second Lane,

P.S. Garden Reach, Kolkata-24.                                                                      ---------- Opposite Parties.

Present :           Sri Sankar Nath Das, President.

                        Dr. Subir Kumar Chaudhuri, Member

                        Smt. Sharmi Basu, Member

Order No.   27     Dated  31-12-2012.

            The petition of complaint has been filed by the complainant Md. Wahid against the o.ps. Rasid Ahmed and another. The case of the complainant in short is that o.p. no.1 is the promoter/developer who constructs building and inducts tenants in to the constructed building by taking construction charge of the flat from the tenants. O.p. no.2 at present is the landlady of premises no.G-228/3, Battikal Second Lane, P.S. Garden Reach, Kolkata-24.

            One Husna Ara now deceased, the mother of o.p. no.2 was the landlady of the aforesaid premises who authorized o.p. no.1 to construct /develop the aforesaid premises and to induct the tenant in to constructed building by taking construction charge of the flat from the tenants.

            Sometime in 2008, the said Husna Ara died intestate leaving behind her daughter Lokaiya as her sole legal heir and successor in respect of the aforesaid premises and since then o.p. no.2 is landlady of the said premises and managing the said building. On 2.2.05 at the time of construction of the aforesaid premises, o.p. no.1 approached the complainant to take flat measuring more or less 350 sq.ft. consisting of two rooms attached with kitchen, bath and privy on the second floor of the aforesaid premises at a monthly rental basis for the total construction  charge of Rs.63,000/-.

            Complainant held the proposal of o.p. n o.1 and entered into an agreement with o.p. no.1 on  6.2.05 in presence of witnesses thereon and the said agreement was confirmed by the landlady Husna Ara. In pursuance of the said agreement the complainant paid to o.p. no.1 a sum of Rs.62,500/- in different installments as construction charge of the said flat and the o.p. no.1 granted the receipt for the same and the rest amount of Rs.500/- was payable to o.p. no.1 by complainant at the time of taking peaceful and vacant possession of the said flat by complainant.

            O.p. no.1 undertook to handover the peaceful and vacant possession of the aforesaid flat to the complainant on or before 31.3.08. Since 31.3.08 complainant repeatedly asked o.p. no.1 to h Handover the peaceful and vacant possession of the said flat but o.p. no.1 kept on deferred the matter on different pretexts. On 20.2.09 o.p. no.1 refused to handover the peaceful and vacant possession of the said flat to the complainant and also refused to refund the amount of Rs.62,500/- which complainant paid to o.p. no.1. Hence the case was filed by complainant with the prayer contained in the petition of complaint.

            O.p. no.1 had entered his appearance in this case by filing w/v and denied all the material allegations labeled against him and prayed for dismissal of the case. O.p. no.2 did not contest the case by filing w/v and matter was heard ex parte against o.p. no.2.

Decision with reasons:

            We have gone through the pleadings of the parties, evidence and documents in particular. It is seen from the record that complainant entered into an agreement with o.p. nos.1 and 2 on 6.2.05 wherein it was stipulated that o.p. no.1 promoter/developer will construct building and induct tenants into the constructed building by taking construction charge of the flat from the tenants and complainant entered into the agreement of terms and conditions of the aforesaid proposition. It is further seen from the record that at the time of execution of agreement complainant paid Rs.62,500/- and it was stipulated that complainant will pay Rs.500/- at the time of delivery of the possession of the flat as tenant and it was stipulated in the said agreement that o.p. no.1 will give possession of the vacant flat to the complainant on or before 31.3.08, but surprisingly enough o.ps. did not deliver the vacant possession of the flat in question to the complainant and complainant persuaded the matter with the o.ps. but o.ps. did not pay heed to that and we are of the views that despite payment of Rs.62,500/- out of Rs.63,000/- as per agreement o.p. no.1 did not deliver vacant possession of the flat in question in favour of the complainant and we find that this amounts to deficiency of service being service provider to the consumer / complainant and complainant is entitled to relief.

            Hence, ordered,

            That the case is allowed on contest in part with cost against o.p. no.1 and ex parte in part with cost against o.p. no.2. O.ps. are jointly and/or severally directed to deliver vacant possession of the flat in question to the complainant and if the complainant pays Rs.500/- (Rupees five hundred) only being the balance amount as per terms and conditions of the agreement on the date of delivery of the vacant possession of the flat in question. O.ps. are further directed to pay compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

            Supply certified copy of this order to the parties free of cost.