JUDGEMENT

          Complainant by filing this complaint has submitted that complainant is the owner of the undivided 1/18^th part of share in respect of the premises No.30, Ma Saradamoni Sarani (Bosepara Lane), P.S.- Shyampukur, Ward No. 8, Kolkata – 700003 and other op nos. 2 to 6 are also the owner of the said schedule property having their respective shares in the said property.

          That on 08.05.2008 the land owners of the schedule property i.e. op nos. 2 to 6 with an intention to develop the schedule property and also for the purpose of commercial utilization of the said suit property entered into a joint venture agreement with the op no.1 and also decided to complete the project in accordance with the terms and conditions of the said agreement and for execution of the development agreement executed a Power of Attorney and accordingly each of the land owners empowered the op no.1 to apply for sanction plan and also for entering into agreement for sale of flats on the said suit property to the prospective purchasers and to receive consideration money from the said intended purchaser and issue valid receipts of money.

          Subsequent to the said agreement in order to settle with the portion of share of the complainant in the suit property, an agreement was excluded into on 04.02.2011 by and between the op no.1, op nos. 2 to 6 through their constituted attorney Shri Asish Roy who is also one of the Directors of the op no.1 and also the complainant.

          Fact remains the owners and the developer jointly will sell a self contained and independent flat measuring a super built up area of 1100 sq. ft. more or less on the front (North West Side) portion of the top floor of the (G+4) storied new building to be constructed on the land of premises No.30, Ma Saradamoni Sarani, P.S.-Shyampukur, Ward No.8, Kolkata-700003 as mentioned in the Schedule-B of the said agreement with a car parking space on the ground floor at a lump sum price of Rs. 25,50,000/- only after adjustment of price of undivided 1/18^th share of the complainant of the suit property and the description of the said flat is morefully and particularly described in the Schedule-B of the agreement.

          That the owners and the developers will jointly execute register a deed of conveyance in favour of the purchaser or her nominee as may be required by the purchaser on or before expiry of two years from the date of receipt of full consideration money and deliver vacant possession of the complete flat and also the open car parking space in complete and habitable condition in all respect and in case of failure to complete the construction within the stipulated period of two years, the developer/op no.1 without prejudice to the other rights of the complainant as available in accordance with law of the land in default, will pay an amount @ Rs. 250/- only per diam for each day of delay after expiry of the stipulated period as compensation.

          It is the duty of the developer to bring electric connection to the new building by his own expenses, but the purchaser will bear and pay the cost and expenses for the installation of separate electric meter in her own name and developer shall procure the completion certificate within reasonable time after completing work of construction of the proposed new building but in case the purchaser fails to complete the transaction upon completion of the flat of the complainant and getting intimation from the developer for completion of the flat within three months from the date of inspection of the flat and the developer will be at liberty to cancel the agreement upon payment to the purchaser the amount of the market price after deducting Rs.25,50,000/-, the price of the flat as agreed between the parties.

          Complainant further stated that though as per the agreement entered by and between the parties all the ops and specially the op no.1 was and still is under obligation to fulfil its part and provide the service on its part, but unfortunately op no.1 with the collusion with the other ops have not fulfilled the terms and conditions of the agreement and accordingly caused the shortfalls in the constructional works.  Though the developer agreed that on or before expiry of two years from the date of agreement i.e. 04.02.2011 upon receipt of full consideration money shall deliver vacant possession of the complete flat and also the open car parking space in complete and habitable condition in all respect.  Though as per agreement ops, the developer and also the land owners are also under joint obligation to execute and register a conveyance in favour of the purchaser or her nominee as may be required by the purchaser within the said two years as stated above, but in spite of that developer till date has not even properly constructed the flat in question though he was under obligation to complete and intimate about the completion within 03.02.2013. But fact remains op has neither completed the construction nor even intimated about the status of such completion.

          Though under obligation to procure the completion certificate within reasonable time after completing work of construction on several occasion verbally and also thereafter by written intimation through Advocate Mr. Gitanath Ganguly on 19.07.2012 requested the op no.1 to furnish document duly certified by a licensed building surveyor of KMC with 15 days from the date of receipt of said letter and further intimate about the position of building and progress.  But op did not bother and did not receive the same letter but even after that complainant tried to contact the op no.1 and also the other ops to ventilate her grievance, but neither of the ops had given any heed to the requests of the complainant.  Unfortunately op nos. 2 to 6 also did not pay any heed to the same and for such sort of violation of the agreement and terms and conditions and also for negligent and deficient manner of service this complaint is filed and as per observation of the Hon’ble Supreme Court when possession of a flat is not delivered within the stipulated period the delay so caused is denial of service is well proved.  Therefore the complainant was compelled to file this complaint for redressal and considering the negative attitude of the ops.

          In the present case notices of the complaint were served to the ops and all the ops received the summons and refused the same as it is evident from the service reports that is track report of the postal department but they do not turn up, so the case is heard finally exparte.

                                                      Decision with reasons

          On careful consideration of the entire complaint including the agreement made in between the ops and the complainant and also considering the argument as advanced by the Ld. Lawyer for the complainant also considering the ops’ unwillingness in this case, it is clear that op even after receipt of the notices did not care to contest this case as it was not possible for them to defend the complainant and her allegation.  So, the evidence on record on behalf of the complainant is accepted as unchallenged testimony and further it is proved from the agreement that the complainant is owner of undivided 1/18^th of share of present case premises No.30, Ma Saradamoni Sarani, P.S.-Shyampukur, Ward No.8, Kolkata-700003 and it is specifically mentioned in the agreement that complainant shall have to get one flat measuring a super built up area of 1100 sq. ft. more or less on the front (North West Side) portion of the top floor of the (G+4) storied new building to be constructed altogether  with car parking space on the ground floor at a limit of same price and as per agreement car parking in place of that complainant shall have to get the said flat shall be allocated to the complainant in lieu of 1/18^th shares of the premises and it is specifically mentioned that the said flat shall be handed over to the complainant within 24 months from the date of this agreement which executed on 04.02.2011.  So, in the meantime on 04.02.2013 the said period has already expired but complainant has not got the said flat together with car parking place but as per agreement op/developer shall have to pay compensation to the complainant @ Rs.250/- per day for each day daily after expiry of stipulated time of completion.

          Truth is that op has failed to prove that he has already constructed the building and received the completion certificate and handed over the possession to the complainant.  So considering all the above fact and circumstances it is proved beyond any manner of doubt that complainant was entitled to one flat as per agreement along with car parking space in place of his 1/18^th shares as land owner and agreement was executed in between the both parties.  Ops have failed to prove by any cogent document that complainant has been allotted the said flat as per agreement dated 04.02.2011.  At the same time ops have got such chance to defend complainant’s allegation but they did not appear before this Forum and did not contest and for which the entire allegation of the complainant is proved beyond any manner of doubt.  In view of the above fact and circumstances, we are convinced to hold that complainant is no doubt deceived by the ops in this regard and no doubt complainant is entitled to get a relief as prayed for against deficiency and negligence on the part of the op which is proved beyond any manner of doubt.  At the same time it is clear that the developer/op no.1 has adopted unfair trade practice and by deceiving the complainant they got the land and constructed some portion and thereafter have been harassing the complainant which is also proved for which complainant has suffered much.  At the same time complainant has failed to enjoy the flat against his 1/18^th shares of the flat and as legal owner he is entitled to get the said flat as per agreement and ops are bound to handover the same by executing the sale deed and by transferring the said flat in favour of the complainant but ops have not performed their part.

          Thus the complaint succeeds in exparte form.

          Hence, it is

                                                               ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs.10,000/- against each op in exparte form.

          Ops jointly and severally are hereby directed to complete the same flat and to hand over the khas possession of the said flat along with completion certificate to the complainant within one month from the date of this order and to execute a valid deed of sale of conveyance in favour of the complainant in respect of the said flat as described in the Schedule – B of the said agreement dated 04.02.2011 executed in between the parties of the same and the complainant. At the same time op no.1/developer shall have to pay Rs.25,000/- per month as compensation if op/ developer and other ops failed to execute the sale deed and deliver khas possession in respect of the said flat in favour of the complainant and that compensation shall be paid in each month after expiry of the stipulated period and this order is passed after consideration a judgement of Revision Petition No. 4838/2012 passed by National Commission in Reference Case Swapan Kr. Ghosh & Ors – Vs – Anjali Ghosh & 6 Ors and that judgement was passed by Justice J. N. Malik and Dr. S.N. Kanitkar of National Commission and this compensation shall be paid by the op no.1 and other ops jointly and severally till full satisfaction of the decree.

          For adopting unfair trade practice and also for harassing the complainant and for deceiving the complainant in such a manner op no.1 is imposed a punitive damages of Rs. 2,00,000/- for adopting unfair trade practice and said amount shall be deposited to this Forum by the op no.1/developer positively within one month from the date of this order even if it is found that op no.1 and other ops are unwilling to comply the order in that case penal action shall be started against them for which they shall be responsible and further fine and penalty may be imposed u/s 27 of C.P. Act 1986.