Hon’ble Mrs. Soma Bhattacharjee, Member

The complaint case was filed by Smt. Rikta Adhya against OPs Sanjay Aggarwal and Ors. u/s 47 of C.P. Act, 1986. Value of the case has been assessed at Rs. 1,74,35,623/-.

The complainant’s case is in brief as follows:

One Sailen Saha was the absolute owner of a plot of land at 2/1A Somnath Lahiri Sarani Kolkata 700053. The owner entrusted the development of the said plot with the developers 1. Sanjay Aggarwal and 2. Samar Purokayastha by an unregistered agreement dt. 19.02.2009.

As per the development agreement the owner’s allocation was :

1. One shop room of 400 sq. ft. covered area in the ground floor
2. One bed room self contained flat with kitchen and bathroom of 200 sq. ft. covered area in the ground floor.
3. One garage of 120 sq. ft. covered area in the ground floor.
4. Entire 3^rd floor.
5. 3 one bedroom self contained flat with kitchen bath of total covered area of 904 sq. ft. on 4^th floor, along with proportionate share of land attributable to the said flats along with common facilities, area utilities and civic amenities to be provided in the newly constructed building on the scheduled premises.

The development agreement dt. 19^th February, 2009 also provided that the developers shall pay Rs. 5 lakh to the owner as security money. This amount was paid by the developers to the owner and copies of money receipts have been filed in the compliant petition.

Later on 14^th February, 2013 Sailen Saha passed away intestate leaving two married daughters viz. Smt Rikta Adhya and Smt Molly Paul as  legal heirs to became owners of the property.

One of the developers Samar Purokayastha also died on 25^th June,2014 intestate leaving his wife Purnima Purokayashtha and one daughter Atreyee Sen Purokayashtha. Both the legal heirs relinquished all their right, title and interest for development of the scheduled property in favour of Sanjay Aggarwal. Under such changed circumstances, a fresh development agreement between Sanjay  Agarwal and Rikta Auddy and Molly Paul was executed on 1^st Day of June 2015 which was duly registered at ADSR Alipore.

According to the new development agreement “owner’s allocation and consideration shall mean (1) (a) one shop room measuring 378 sq. ft. covered area in the Ground floor, (1)(b) one shop room total measuring 156 sq. ft. covered area in the Ground floor (1) (c) one room flat with attached toilet and kitchen measuring 250 sq. ft. covered area in the Ground floor (1)(d) one car parking space measuring 120 sq. ft. covered area in the Ground floor (2)(a) one bed room self contained flat with kitchen and bath room measuring about 350 sq. ft. covered area on the fourth floor (2)(b) one bed room self contained flat with kitchen and bath room measuring about 364 sq. ft. covered area on the Fourth floor, (2)(c) one bed room self contained flat with kitchen and bath room measuring about 190 sq. ft. covered area on the fourth floor, and (3) Entire third floor along with proportionate share of land attributable to the said flat and shop room along with common facilities, areas, utilities and civic amenities as to be provided in the newly constructed building in respect of Municipal Premises No. 2/1A, Somnath Lahiri Sarani, Police Station- Tollygunge, now Charu Market, Kolkta- 700053 the particulars of such premises morefully described in the First Schedule hereunder written to be constructed as per specification given in Second Schedule herein and if the developer shall construct further any additional floor in that occasion the owners shall get 30%covered area on such additional floor area.”

That the said development agreement provides the Developer’s Allocation in clause 12 as follows: “Developer’s Allocation: shall mean the remaining constructed area in the proposed building after deducting above Owner’s Allocation including proportionate share of underneath land and common areas common facilities and amenities attached with the proposed building in respect of Municipal Premises No. 2/1A, Somnath Lahiri Sarani, Police Station- Tollygunge, now Charu Market, Kolkata 700053 the particulars of such premises more fully described in the First Schedule hereinunder written with common facilities areas, utilities and civic amenities as to be constructed as per specification given in the Fourth Schedule herein below written, as part of total consideration of the said land and premises.”

The OP/developer handed over possession of his allocated share to the tenants Sri Dilip Kumar Saha and Sri Shyamal Kumar Saha, 3^rd Parties, as per agreement made between developer and tenants separately.

That the Opposite Party-/ the developer handed over the possession of (1) (a) one shop room measuring 378 sq. ft. covered area in the ground floor to the tenant Sri Dilip Kumar Sasha and Sri Netai Kumar Saha jointly (1) (b) one shop room total measuring 156 sq. ft. covered area in the ground floor to the tenant Sri Shyamal Kumar Saha. By another agreement made between developer and tenants the said tenant Sri Dilip Kumar Sen shall get possession of one room flat with attached toilet and kitchen measuring 250 sq.ft. covered area in the ground floor, Sri Gupi Nath Ganguly shall get one bed room said contained flat with kitchen and bath room measuring about 350 sq. ft. covered area on the Fourth floor and Sri Amar Samanta shall get one bed room self contained flat with kitchen and bathroom measuring about 364 sq. ft. covered area on the fourth  floor and therefore the owner has foregone these above said allocation which is allocated presently to the tenants which owners shall not claim in the newly constructed building in respect of Municipal Premises No. 2/1A, Somnath Lahiri Sarani, Police Station- Tollygunge now Charu Market, Kolkata- 700053. 

However the OP /developer did not handover possession to the owners i.e. complainant in respect of constructed area in respect of entire 3^rd floor and one car parking space on the ground floor measuring about 120 sq. ft. along with common facilities and area etc in the newly constructed building in respect of premises no. 21A Somnath Lahiri Sarani Kolkta 700053.

The complainant requested the OP /developer to complete the construction in all respects in respect of owner’s allocation and to hand over the same before handing over of possession to the intending purchaser but the developer failed to do so and thereby committed negligence on his part. The complainant also issued advocate’s letter to the developer/OP.

Finally the complainant was compelled to file the complaint case no. 296/2020. In spite of receiving notices the OP did not appear or file any W.V. The OP did not challenge the averment of the complainant or evidence on affidavit filed by the complainant.

Heard. Considered. On perusal of contents of petition of complaint, evidence on affidavit and brief note of argument it reveals that cause of action had arisen on September, 2015 by which date the owner’s allocation was to be handed over to the complainant as per development agreement dt. 19.11.2009. However, the developer defaulted and as such cause of action is still continuing.  

The points for decision are as follows:

• Whether the complainant is a consumer?
• Whether there is a deficiency in service?
• Is the complainant entitled to get any relief/s?

The complainant has signed an agreement with the OP/developer for development of her land and she handed over the possession of the property to the developer.  So, she is a consumer in terms of Section 2 (1)(d) of C.P. Act, 1986.

The developer/OP has failed to deliver the owner’s allocation to the complainant as per development agreement dt. 01.06.2015.   So, there is deficiency in service. Therefore, the complainant is entitled to relief. There seems to be no reason to mistrust the unchallenged evidence filed by the complainant.

Ordered

The complaint case being no. CC/296/2020 is allowed ex parte. The OP no.1/ Developer Sanjay Aggarwal is hereby directed to handover the owner’s allocation as per schedule I to Rikta Auddy, the complainant. The OP /developer shall handover possession of owner’s allocation and completion certificate as per 1^st Schedule of the agreement dt. 01.06.2015 within 60 days from the date of this judgment to the complainant. He will also pay a compensation of Rs. 2,00,000/- within 60 days from today.

In case the OP/developer fails to comply with this order within due date, the complainant will be at liberty to put the order into execution.

The complaint case being no. CC/296/2020 is, thus, disposed of.