Judgment : Dt.19.6.2017

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under section 12 of C.P.Act by Sri Debendra Narayan Chakraborty alleging deficiency in service on the part of the OP Smt. Soma Basu.

            Case of the Complainant in brief is that he being one of the Co-sharers of a piece of land being premises No.48, Nandi Para, P.S.- Regent Park, Kolkata-700 070, under KMC Ward No.113, Mouza – Bansdroni, Pargana-Magura, J.L.No.45, R.S.No.381, Touzi No.33B, under Khatiyan No.777 Dag No.650, the  Complainant along with other co-sharers entered into development agreement on 20.4.2011 for development of the said piece of land by erecting a G+III storied building thereon to be constructed by the developer under certain terms and conditions. It is stated by the Complainant that as per terms of the said agreement the developer was to deliver a self contained flat measuring 806 sq.ft, super built up area on the first floor south west side being flat No.A-1 and one car parking space measuring 120 sq.ft. ground floor of the said premises. It is further stated by the Complainant that the developer, by a possession letter dt.125.7.2014, deliver the said flat measuring 860 sq.ft super built up area on the first floor, South West side being Flat No.A-1 and one car parking space measuring 120 sq.ft. at the ground floor of the said premises but fact remains that the said car parking space has not been delivered in reality to the Complainant although he has made several requests to the Opposite party to that effect. Accordingly, the Complainant has prayed for direction upon the Opposite Party to pay Rs.3,50,000/- to the Complainant towards value of car parking space and to handover car parking space and registration of the same after marking the said car parking space as mentioned under the Schedule B of the petition of complaint.

            The Complainant has annexed Photostat copy of –

1. Agreement for development dt.20.4.2011

2. Possession letter dt.15.07.2014 issued by the developer in favour of the Complainant.

3. Building Plan of 1^st floor

4. Building Plan of ground floor, etc.

            Notice was served upon the Opposite Party but she did not turn up and hence the case was fixed for ex-parte proceeding vide order No.7 dt.5.5.2017.

             The Complainant has filed affidavit-in-chief. In course of hearing the Complainant narrated the facts mentioned in the petition of complaint.

Decision with reasons

             On perusal of petition of complaint and documents annexed thereto, it appears that the Complainant in capacity of one of the land-owners (along with other co-owners) entered into a development agreement on 20.4.2011. The Complainant stated that as per terms of the said agreement the developer was to deliver a flat and a car parking space. It is further stated that the developer handed over a possession letter dt.15.7.2014 in respect of the said flat and the said car parking space but in reality delivery of car parking space has not been done. The specific allegation of the Complainant is non-delivery of the car parking space to the Complainant. However, to substantiate such allegation, the Complainant never took any step, such as appointment of an Advocate Commissioner etc. No authentic report has been filed before us that the scheduled car parking space has not been delivered to the Complainant. On the other hand, it is evident from the possession letter dt.15.7.2014 issued by the developer that the Complainant put his counter signature therein stating that he accepts the possession of the said flat and car parking space. Therefore, from his own averment under the possession letter the Complainant has got possession of the said car parking space.

             Since the Complainant received the possession of the car parking space, as per his averment under the possession letter no question of awarding Rs.3,50,000/- to be paid by the OP developer in favour of the Complainant arises at all.

              In fact we find no deficiency on the part of the OP developer.

              Moreover, this petition of consumer complaint suffers from non-joinder of necessary party since the Complainant relies upon the development agreement dt.20.4.2011 which was also executed by other co-sharers who ought to have been impleaded as party in the instant case.

              In the result the complaint fails.

Hence,

ordered

              That CC/86/2017 is dismissed ex-parte but without any order as to costs.