Complainant filed this complaint for directing OP-1 M/s Sana Construction, a Partnership Firm (a) handover constructed car parking space as per Development Agreement alternatively to pay Rs. 3,00,000/- for unfair trade practice, (b) to pay an amount of  Rs. 6,50,000/- plus interest  at the rate of 18 percent p.a., (c) to pay an amount of Rs. 1,00,000/- for harassment and mental agony, (d) to pay damage of Rs. 1,50,000/-, (e) handover Completion Certificate and Occupancy Certificate, (f) to pay an amount of Rs. 40,000/- as litigation cost and (g) any other relief which the Commission deem fit and proper, in the circumstances of the case, be passed.

The facts as stated in the complaint are that Ganesh Chandra Debnath, since deceased during his life time had entered into a Development Agreement with the OP-1 M/s Sana Construction, a Proprietorship Firm for construction of a G + 3 storied building at KMC Premises No. 40E, Bediadanga Second Lane, (presently New Ballygunge Road), Kolkata-700039. Complainant and OP 3 are the legal heirs of Late Ganesh Chandra Debnath. In terms of the Development Agreement, OP-1 paid a sum of Rs. 3,50,000/- out of total amount of Rs. 10,00,000/- to said Ganesh Chandra Debnath. OP 1/Developer failed and neglected to pay balance amount of Rs. 6,50,000/- in spite of repeated demands.

It is further alleged that complainant and OP-3 Dipankar Debnath executed a General Power of Attorney dated 18.08.2011 favour of the OP-1 whereby the OP-1 agreed to provide and handover vacant possession of the entire 2^nd floor of the proposed G+3 storied building. OP-1 did not complete construction of entire 2^nd Floor of the building. Complainant taken possession of the 2^nd Floor of the constructed building from the OP-1. OP-1 failed and neglected to handover one car parking space measuring about 125 sq. ft. to the complainant from the “Owners” allocation on these allegations, the complaint is filed.

Upon notice, the complaint is resisted by the OPs 1 & 2. (Proprietorship Firm & its Proprietor) by filing written version. They have not denied with regard to execution of Development Agreement dated 08.06.2006 with Ganesh Chandra Debnath, since deceased. The project has been completed in the year 2012. Developer’s allocation have been sold to different buyers and owners allocation have been also delivered to the complainant and her brother Depankar Debnath (herein after OP 3). Since April, 2012 complainant and OP-3 are in possession of their flats. During his life time Ganesh Chandra Debnath relinquished the claim of garage space. OPs fulfilled their obligation in terms of the development Agreement. The claim of the complainant is barred by limitation. There is no deficiency in service on their part.

 OP-3 has also contested the case by filing written version and he has supported the case of the complainant and also claims & seek reliefs against the OPs 1 & 2 as per prayer made out in the consumer complaint.

Complainant and OPs 1 & 2 filed their Affidavit of Evidence. They also relied certain documents in support of their respective cases. OP-3 did not file Affidavit of Evidence. OPs 1 & 2 filed their Brief Notes of Argument.

We have heard the learned Counsel for the OPs 1 & 2.  Neither the complainant nor her Counsel Participate in the argument. Perused the material available on record.

It is an admitted fact that Ganesh Chandra Debnath, since deceased was the owner of KMC Premises No. 40E, Bediadanga Second Lane (presently New Ballygunge) Kolkata – 700039 and during his life time said Ganesh Chandra Debnath had executed a Development Agreement dated 08.06.2006 with OP-1 M/s. Sana Construction, a Proprietorship Firm represented by its Sole Proprietor (herein after OP 2) for construction of a G+3 storied building at the said premises in accordance with the building plan to be sanctioned by the Kolkata Municipal Corporation.

            It is significant to mention here that as per Development Agreement Ganesh Chandra Debnath is entitled to get entire 2^nd floor of the proposed G+3 storied building to be constructed at the said premises together with undivided proportionate share of land, common area, facilities and amentias as described in the 3^rd schedule of the Development Agreement including one parking space measuring about 125 sq. ft. on the ground floor of the proposed building as owner’s Allocation. In adaptation to that the OP/Developer  shall pay Rs.  10,00,000/- as consideration money to said Ganesh Chandra Debnath. It is pertinent to note that on the date of execution of the Development Agreement OP-1/Developer had paid Rs.  2,50,000/-to the owner and remaining amount will be paid in four equal installments.

There is no dispute relating to the death of Ganesh Chandra Debnath. Complainant and OP-3 are the daughter and son of Ganesh Chandra Debnath. During his life time Ganesh Chandra Debnath executed and registered four Agreement for Sale in respect of flat Nos. 1A, 1B, 3A and 3B of the proposed building with Syed Akbar Hossain, Shaikh Sahajahan Hossain Syed Akbar Hossain and Syed Akbar Hossain. Complainant Smt. Darpana Sinha is one of  the attesting witness of the said Development Agreement  dated 08.06.2006  and four registered  Agreement for Sale all dated 09.06.2006. Therefore, she is fully aware that during the life time her father executed and registered four Agreement for Sale with the Purchasers in respect of Flat Nos. 1A, 1B, 3A and 3B including four open car parking place. Thus Ganesh Chandra Debnath virtually relinquished his claim of car parking space  with the knowledge of the complainant. Flats situated on the 1^st and 3^rd floor including open car parking space have  already been given possession to the purchasers. Therefore, the question of provide car parking space to the complainant does not arise.

On bare perusal of para-07 of the Consumer Complaint, we find that the complainant and OP-3 being the legal heirs of Ganesh Chandra Debnath executed a power of Attorney in favour of the Developer specifically agreed to handover, provide  and deliver them vacant possession of the constructed entire 2^nd floor of the proposed G+3 storied building in course of construction with undivided proportionate share of land including one car parking space on the ground floor. Copy of power of Attorney is not produced to the commission. Thus, we are not aware about the contents of the power of attorney. Complainant alleged that OP/Developer failed and neglected to handover physical possession of the 2^nd floor flats to the complainant in habitable condition. Ultimately, she had taken possession of the entire 2^nd floor from the Developer. There is no cogent evidence on the part of the complainant that the entire 2^nd floor flat was unfinished condition. The admission of the complainant itself proved that Developer physically delivered possession of the entire 2^nd floor to her.

The issue relating to claim of Rs.  6,50,000/- as balance consideration amount in terms of the Development Agreement dated  08.06.2006 came up for consideration. OP/Developer paid Rs. 3,50,000/- to Ganesh Chnadra Debnth during his life time. Balance consideration amount of Rs.  6,50,000/- is still due. OP/Developer denied with regard to claim of the complainant but he failed to produce any money receipt to establish that balance consideration amount was paid to Ganesh Chandra Debnath since deceased or his legal heirs i.e. the complainant and OP-3. It is true that complainant did not disclose the specific date, month and year regarding possession of the entire 2^nd floor flat though the OP/Developer failed to produce any document to establish his claim with regard to date of delivery of possession of the flat. Thus, the question of limitation does not arise because the Developer/OP did not handover completion certificate of the building and possession certificate of the flat to the complainant. There is no documentary evidence to that effect on the part of the Developer/OP. Thus, the cause of action is continuous one till the completion certificate and possession certificate is given to the complainant and OP-3. Therefore, the objection raised on behalf of the OP/Developer is not tenable. Moreover, the OPs 1/Developer is not entitled to get claim Rs.7,03,000/- from the complainant and OP-3  because the Developer did not file any postal order or DD in respect of claim as made out in the prayer of WV.

In view of the above discussions, following directions are, therefore, issued:-

1. The OP-2 being the Sole Proprietor of OP-1M/s Sana Construction is directed to pay the balance consideration amount of Rs. 6,50,000/- to the complainant and OP-3 in equal share being the legal heirs of Ganesh Chandra Mondal, since deceased in terms of the Development Agreement dated  08.06.2006 along with simple interest  at the rate of 5  percent p.a. from the date of last payment till the date of payments.
2. The OP-2 is also directed to issue completion certificate of the building and possession certificate of the entire 2^nd floor flat to the complainant and OP-3.
3. The OP-2 is further directed to make above payment within 45 days from the date of receipt of copy of this order.

The  Registry in Charge is requested to send a copy of this order to all parties of  the consumer complaint immediately. Office Assistant is also requested to upload this order on the website of this commission forthwith.

           Thus, the consumer complaint is disposed off

Dictated & Corrected by

President      

                                Member (L)                     Member (M)                   President