The instant case was instituted on the basis of a petition of complaint filed by one Prasun Sarkar S/o. Late Gopal Gobinda Sarkar R/o. No. 1 Government Colony, P.S. English Bazar, Dist. Malda against the O.P. Santosh Karmakar, S/o. Late Baneswar Karmakar, Partner, Indraprastha Developer, Raj Palace under the Police Station English Bazar Dist. Malda filed u/s 12 of Consumer Protection Act, 1986 and the said case was registered before this Forum now Commission as Consumer Case No. 99/2017.
The fact of the case as revealed from the petition of complaint as well as from the evidence is that the suit property is situated within the District Malda under jurisdiction of this Forum. The O.P. is a promoter and developer and the O.P. is carrying a promoting business as partner of Indraprastha Developer at Malda District. The complainant and his brother and sisters entered into a development / construction agreement with the O.P. by a registered deed bearing No. 1-7630 dt. 28/08/2016 for construction of multi-storied building over the landed property as mentioned in the terms and condition of the agreements. As per agreement the O.P. will give or hand over a flat measuring 2000/- sq. ft. including 20% common passage on second floor front portion as owner allocation and it was agreed that the O.P. shall pay Rs.75,00,000/- (Rupees Seventy Five Lakhs Only) to the complainant and his brother within six months from the date of execution of the agreement and Rs.15,00,000/- (Rupees Fifteen Lakhs Only) will be paid to the complainant and thereafter within three months the O.P. will pay more 20,00,000/- (Rupees Twenty Lakhs Only) It was agreed that the owners allocation of the complainant shall be handed over within 36 (Thirty Six) months from the date of execution of the agreement but within the stipulated time the O.P. expressed that only 1000 sq. ft. i.e. front side and its back side, moreover, 1000 sq. ft. will be handed over to the complainant instead of entire 2000 sq. ft. at the front side of ground floor. Accordingly, the complainant sent a legal notice through his Ld.Lawyer on 28/11/2014 and requested the O.P. to fulfil the terms and condition as mentioned in the Clause ‘D’ of the developer agreement but in spite of receiving such notice the O.P. kept mum. Thereafter, again on 09/12/2014 the complainant again sent a notice to fulfill the terms and condition of the agreement but due to non-delivery of the agreed flats to the complainant within time the complainant had to bear excess amount @ Rs .20,000/- per month for the flat for the period from November, 2016 to November, 2017. Although the O.P. handed over the agreed flat to the other brother and sister of the complainant but the O.P. intentionally did not hand over the agreed flat. Lastly, on 25/07/2017 the complainant agreed to get 2000 sq.ft. flat by two separate flats measuring 1000 sq. ft. each at the second floor front side located as per registered agreement. The O.P. got the said notice but did not handover the same for which the complainant has come to this Forum to get relief as prayed for.
The petition has been contested by the O.P. by filing written version denying all the material allegations as levelled against them contending inter alia that the instant case is not maintainablein its present form. The statements made in the petition of complaint is false. The case has been filed to harass the O.P. The case is barred by the Provision of waiver, estoppel, and acquiescence. The case is also barred by the miss-joinder of parties.
The definite defense case is that as per development agreement which was executed on 08/06/2013 between the complainant Prasun Sarkar along with his brother Prabhat Kr.Sarkar and his sisters viz. Keya Talukder and Smt. Krishna Pramanik that one flat measuring 2000 sq. ft. including 20 % common area on the second floor will be handed over to the complainant, one flat measuring 2000 sq. ft. including 20% common area will be handed over to Prabhat Kumar Sarkar and one flat measuring 1000 sq. ft. including 20 % common area on the first floor. The O.P. according to the agreement has already handed over two flats earmarked to Prabhat Kr. Sarkar and Keya Talukdar. The second floor 2000 sq, ft. meant for the owners development agreement and is ready for delivery. This flat is allocated to the complainant when the construction was going on. The complainant on the second floor requested the O.P. to divide the 2000 sq. ft. flat by 1000 sq. ft. each and the O.P. developer as per advice done this. That shows that the implied acceptance of this flat by the complainant.
The further case is that the layout of the first floor and the second floor is same. So the O.P. did not act any violation of the layout plan and to allocate 2 flats of 1000 sq. ft. each to the complainant.
The further defense case is that the complainant is not entitled to get any compensation as for his own latches the O.P. cannot suffer. So considering such facts and circumstances the instant case is liable to be dismissed with cost.
In order to prove the case the complainant himself was examined as P.W.-1 and during trial he proved and marked document as per exhibit list and he was cross-examined.
On the other hand one Santosh Karmakar was examined as O.P.W.-1 and cross-examined. During trial he proved and marked documents as per exhibited list on behalf of the O.P.
Now the point for consideration:- Whether the complainant is entitled to get any relief as prayed for?
::DECISION WITH REASONS::
At the time of argument the Ld.Lawyer of the complainant argued that as per agreement the delivery of the flats will be handed over within 36 (Thirty Six) months from the date of execution of the agreement. The agreement was executed on 28/06/2013 and the thirty six months will cover on 27/06/2016. But during that period the flat has not been handed over to the complainant for which the complainant has to pay money @ Rs. 20,000/- per month. In this regard the Ld.Lawyer of the complainant refers a number of case laws reported in 2021(1) CPR 178 (NC) of National Commission, TDI Infratech Ltd. and Ors. Vs. Rajinder Singh Thakur, 2021 (1) CPR 218 (NC) National Commission, Ria Gupta Vs. SS Group Private Limited, Air 2000 Supreme Court Lata Construction and others V. Dr. Rameshchandra Ramnikiai, AIR 2000 Supreme Court D.K. Joshi Vs. Chief Secretary State of U.P. and others.
On the other hand the Ld.Lawyer of the O.P. argued that the O.P. cannot be suffer for the own latches of the complainant. The Ld.Lawyer of the O.P. draws the attention of cross-examination of P.W.-1 that the P.W.-1 visited two times when the construction of the flat was going on. He further admitted that as per instruction of complainant the flat of 2000 sq ft. was divided into two flats of 1000 sq. ft. each.
It is the well settled principle of law that the complainant will prove his own case. From the cross-examination it is found that he visited the flats two times when the construction of the flat was going on and it is his instruction the 2000 sq ft. was divided into 1000 sq ft. Such admission cannot be wiped out. Moreover, on perusal of the layout plan i.e. the sanction plan it is found that in the second floor one flat was mentioned of 2000 sq feet and there is no mention of two flats of 1000 each. Moreover no receipt has been filed by the complainant that he has to pay Rs.20,000/- (Rupees Twenty Thousand Only) per month from the month of November 2016 to November 2017. How the Forum now Commission will come to a conclusion that he paid Rs. 2,60,000/- (Rupees Two Lakhs Sixty Thousand Only) when the fact has been denied it is the liability and responsibility of the complainant to prove such fact and he paid Rs. 2,000/- (Rupees Two Thousand Only) from the month of November, 2016 to November, 2017. So the story of the complainant that he paid Rs. 2,60,000/- (Rupees Two Lakh Sixty Thousand Only).
On perusal of the case laws it is found that all the case laws are related to the matters for late delivery of the flats but for the instant case it is found that the flat has already been ready and the complainant is not willing to take the flat of 2000 sq. ft. Moreover, the sister and brother of the complainant has already taken possession of the flats as per agreement. They should have made party in this case. So considering the facts and circumstances the instant case is liable to be dismissed.
C.F. paid is correct.
Hence, ordered that
the case be and the same is dismissed on contest against the O.P. without any cost.
