This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that OP1 is a Thika Tenant in respect of structure on the premises No.B/29A/H/10, Chaul Patty Road, P.S. Beliaghata, Kolkata – 700 010 and OPs2 to 4 are the developers and the OP5 is the constituted attorney of the developers being OP nos.2 to 4.
OP1 intended to construct a Pucca G+3 storied building on the said land in accordance with the building plan to be sanctioned by the KMC after obtaining no objection from the Office of the Thika Controller and for the purpose of constructing the said building accordingly a development agreement was executed amongst the OPs.
In fact, the complainant was in search of accommodation and came in contact with the OP and complainant agreed to take on lease all that one self-contained residential flat on the first floor measuring more or less 230 sq. ft. carpet area consisting of one bed room, one kitchen cum dining and one bath and privy with undivided proportionate share etc. In respect of said premises and thereafter an agreement of lease was executed on 26-12-2012 with the OPs 1 to 4 as per terms and conditions of the said lease deed and for that purpose a total consideration of Rs.4 lakhs was fixed and complainant at the time of execution of the lease agreement paid a sum of Rs.50,000/- on 08-01-2013, again Rs.50,000/- on 22-03-2013, further Rs.50,000/- on 09-04-2013, further Rs.50,000/- 27-08-2013 and lastly paid Rs.50,000/- on 26-12-2013.
In terms of the said lease agreement complainant shall get the possession of the said flat as per lease agreement but till date the complainant has not received the possession of the said flat though complainant was willing to pay the balance amount of Rs.1,50,000/- to the OP as per terms and agreement of the lease but during pendency of the construction work OPs 2 to 4 appointed Ranjit Das as their constituted attorney on behalf of the firm and to sign and execute documents and papers on their behalf. So, complainant after making the said payment of Rs.2,50,000/- to the developer requested to receive the balance amount and to handover possession of the said flat but the OP refused to do so on one pretext and otherwise and also restrained the complainant to enter into the said flat for any purpose of erection.
On repeated demand made by the complainant OP did not attempt to complete the flat and to hand over the same. Subsequently, OP stated that flat in question of carpet is measuring 140 sq. ft. but not 230 sq. ft. but complainant refused to accept such less area of flat and subsequently OP expressed that they shall have to sell the same to the third party.
Finding no other alternative complainant moved an application u/s.144(2) of the Code of Cr.PC before the Ld. Executive Magistrate at Sealdah under M. Case No.981 of 2014 against the OPs and the Ld. Magistrate has been pleased to restrain the OP from doing illegal construction at the suit property. Subsequently, complainant on 26-05-2014 along with Ld. Lawyer Prasanta Banerjee went to the OP for getting possession of the said flat and for execution and registration of the lease deed in respect of the flat in question but OP even after receipt of the notice had not handed over the above flat and in the above circumstances for violation of the agreement and also for negligent and deficiency manner of service the present complaint has been filed praying for redressal.
On the other hand OPs even after services of notice published in Ajkal on 25th October, 2014 did not turn up and fact remains it was the said publication which was widely published and OPs did not turn up to contest the case. In the above situation there was no other alternative but to dispose of the case in ex parte form after relying upon the documents and evidence as filed by the complainant.
Decision with Reasons
On careful consideration of the argument as advanced by the Ld. Lawyer for the complainant and also considering the all documents including the case record it is palpably proved beyond any manner of doubt that complainant entered into a lease agreement executed in between the complainant and the OPs in respect of getting the present case flat on the basis of the executed lease agreement executed by the OPs and that agreement was executed on 26-12-2012 and as per agreement a sum of Rs.4 lakhs is fixed for a carpet area of 230 sq. ft. on the first floor of the case premises and from the documents it is found that complainant already paid Rs.2,50,000/- and receipt has been submitted by the complainant and from that receipts it is found that on behalf of the Sana Construction the amount was received by the present OP Developers and as per lease agreement complainant shall be delivered with the possession of the said flat within 4 months from the date of execution of the said agreement for lease of the flat. So, invariably complainant shall have to get the possession of the flat by 26-04-2012 but truth is that OPs did not hand over the said flat as yet even after receipt of Rs.2,50,000/- and no doubt in respect of Rs.2,50,000/- there is no doubt cash receipts as produced by the complainant. It is equally true that it is a Thika Tenanted Land and fact remains without permission of the Thika Controller no construction can be made but construction has already been made but OP did not hand over any paper in support of permission of Thika Controller for construction of the building. At the same time complainant did not find any such flat of a carpet area of 230 sq. ft. but OP offered a flat of 140 sq. ft. carpet area but complainant refused to accept it so considering that fact it is clear the allegation of the complainant is proved beyond any manner of doubt because OPs got ample scope to defend the complainant’s allegation but they did not turn up. So, we have relied upon the unchallenged testimony of the complainant including the receipt as produced by the complainant and issued by the OPs. Truth is that OP did not handover any sanctioned plan, any permission of the Thika Controller and also failed to perform their part performance as per lease agreement. So, invariably complainant is entitled to get the entire amount of Rs.2,50,000/- along with compensation of Rs.2 lakhs from the OPs if OPs failed to hand over a flat of area 230 sq. ft. carpet area within one month from the date of this order. Accordingly, the complaint succeeds when negligence, deficiency and deceitful manner of practice of the OPs is proved beyond any manner of doubt.
Hence,
Ordered
That the case be and the same is allowed ex parte against the OPs with a cost of Rs.10,000/-.
OPs1 to 4 are hereby directed to handover the flat as per agreement for lease of a flat dated 26-12-23012 within one month from the date of this order, in default, OPs1 to 4 shall have to refund the amount of Rs.2,50,000/- (receipt as consideration amount by the OPs1 to 4 from the complainant) and also a compensation of Rs.2 lakhs for harassing the complainant for not getting the said flat and also for enjoying the said amount and investment of the said amount in his business by OP and for enjoying profits by the OPs and further for negligent and deficient manner of service and for further causing mental pain and agony to the complainant.
For deceitful manner of practice OPs1 to 4 are directed to pay penal damages of Rs.50,000/- which shall be deposited to this Forum within one month from the date of this order.
If OPs 1 to 4 fail to comply the order within stipulated period i.e. within one months from the date of this order in that case penal interest at the rateRs.500/- shall be assessed till full satisfaction of the decree and if it is collected it shall be deposited to this Forum by the OPs 1 to 4.
Even if it is found that OPs are reluctant to comply this order in that case penal action shall be started u/s.27 of the C.P. Act for which they shall be imposed further penalty and fine.
