Brief facts of the complaint is that the complainants being the land owners entered into an agreement for development with opposite party developer and the said development agreement was registered on 09.02.2018 for the development of schedule ‘A’ property to construct a multi storied building (G+4) as per terms and conditions mentioned in the agreement and accordingly the complainants executed power of attorney in favour of the OP-developer. It is stated in the petition of complaint that there was mistakes in the schedule of the property in the power of attorney which was not rectified by the OP-developer. According to the development agreement a building plan was sanctioned on 07.2.2017. As per agreement the land owners allocation mentioned as schedule ‘B’ would be completed within 12 months from the date of sanction of the building plan on 07.12.2017. It is further stated in the petition of complaint that according to the agreement if OP-developer fails to deliver the possession of the land owners allocation within the stipulated period they shall have to pay Rs. 10,000/- per month till hand over the possession to the complainant and after lapse of the stipulated period of 12 months the OP could not hand over the land owners allocation. Thereafter, the complainant on several occasions requested the OP to hand over the possession of the said property but OP did not turn up till May, 2019. On 02.05.2019 the complainant had been at the construction project of the OP’s and found construction work in respect of schedule ‘B’ property (land owners allocation) was not properly constructed though the construction work in respect of developers allocation was going on. Thereafter the complainant by sending Advocate’s letter dated 06.05.2019 stated the said facts to the OP and the OP by sending letter dated 21.05.2019 requested the complainant for granting another 6 months time to complete the entire project but OP failed to do the same for which the complainants sent another Advocate’s letter dated 02.09.2019 to the OP and at that time OP promised to hand over the possession with habitable condition to the complainants very soon. It is further stated by the complainants that till date OP neither completed the construction work in respect of owners allocation nor they handed over the possession in favour of the complainants. Hence the complainants filed this case praying for direction upon the OPs to hand over the possession of the schedule ‘B’ property after completing all formalities as per agreement made by and between parties to the complainants along with compensation and cost of litigation.

Notice was duly served upon the OP in spite of that none appeared on behalf of OP and no W/V was filed. Hence the case was proceeded ex parte against the OP.

The complainants adduced evidence on affidavit and BNA.

                         Decision with reasons

As per development agreement executed by and between the land owners and developer on 09.02.2018 the land owners will get 50% of the constructed area out of entire constructed area from the ground floor to top floor of the proposed multi-storied building (G+4) on the left side of the building within 12 months from the date of sanction of the building plan and if the developer fails and neglects to effect delivery of possession of the owners allocation to the owners within the aforesaid stipulated period, the developer shall pay Rs. 10,000/- per month as penalty to the land owners.

To prove their case the complainants Sri Sourav Pramanik and Bhagabati Pramanik relied upon the letter dated 08.05.2019 from where it appears that the complainants requested the OP to complete the necessary development work and hand over the possession of the same within 30 days. It further appears from the letter dated 21.05.2019 issued by the OP that OP requested to grant 6 months time to complete the project work to the complainant which substantiate the specific allegation of the complainants that OP failed to hand over the possession of the said property to the complainant as per agreement dated 09.02.2018. It further appears that the promised delivery of possession of the said property to the complainant was on 07.12.2018 as per the agreement but OP requested the complainants to grant six months time to complete the work after expiry of promised date of delivery by sending letter dated 21.05.2019. Repeatedly taking time to complete the project work on behalf of the OP-developer proves deficiency in providing service on the part of the OP.

It further appears from the letter dated 02.09.2019 issued by the Ld. Advocate of the complainants that the delivery of possession of the owners allocation had not been handed over to the complainants as per agreement dated 09.02.2018 clause no.18 (I) for which the developer is liable to pay Rs. 10,000/- p.a from 07.12.2017 as compensation and further the inaction of the OP compelled the complainant to file this instant case, so OP is liable to pay Rs. 20,000/- as cost of litigation.

In the result the complaint succeeds.

                          Hence it is

                              Ordered

that the complaint case being no.324 of 2020 is allowed ex parte  with cost against OP.

OP is directed to hand over the possession of schedule ‘B’ property as per agreement dated 09.02.2018 to the complainants after making habitable condition of the flats within 2 months from this date of order. The OP is further directed to pay Rs. 10,000/-per month from 07.12.2017 till realization and Rs. 20,000/- as cost of litigation to the complainants within 2 months failing which interest @12%p.a shall accrue on entire amount.

Let a plain copy be given to the parties free of cost as per CPR.

Dictated and corrected by

[HON'BLE MRS. Sagarika Sarkar]
MEMBER