Dated : 27 Jun 2023

HON’BLE SUDIP NIYOGI            PRESIDENT

FACTS

            The case of the Complainant in short is that: -

            He had entered into an agreement with OP No.1 the sole proprietor of OP No.2 on 21.09.2011 for construction of a multi-storied building on the land of the Complainant at 1005, Madurdaha, Police Station- Anandapur, Kolkata – 700107 and following the said agreement Developers i.e. the Ops to complete the construction of the building within two years from the date of the plan of the building sanctioned by the Kolkata Municipal Corporation which was subsequent obtained on 08.01.2022. It is alleged that the OPs did not comply with the terms of the agreement and complete the construction despite repeated requests. Several correspondences were made by the Complainant with the OPs in this regard, but to no effect. According to him, the construction of caretaker room and common toilet, fixing main door at the entrance gate of the lift, cover on the railing of the staircase were yet to be completed. The lift in a shabby condition. Electric metre room, lighting in the boundary walls etc. were incomplete. OPs also did not complete the internal wooden/electrical work etc. at the cost of the Complainant in his portion, though he was allowed by the Developers informal entry in the owner’s portion. Complainant claimed penalty @ Rs.10,000/- per month following the Clause 6(X) of the said agreement for development. By alleging unfair trade practice and deficiency in service against the OPs, Complainant filed present complaint seeking several relief(s) namely a direction upon the OPs to complete the incomplete works and to issue paper relating to formal possession of the owner’s allocation and penalty @ Rs.10,000/- per month from January, 2014 to February, 2022 and reimbursement of arrear of Kolkata Municipal Corporation property tax amounting to Rs.46,953/- in total along with interest, compensation and cost of litigation.

            In this case, OPs did not contest this case by making appearance and filing written version. Following the application of the Complainant, the petition of complaint was treated as evidence on his part. Besides that Complainant filed several documents in support of his claim.

            Now, the Point for consideration is that Whether the Complainant is entitled to the relief(s) as prayed for.

FINDINGS

            The copy of the development agreement dated 21.09.2011 produced by the Complainant reveals that the plot of land upon which the construction was made, was actually the purchase property of the Complainant and he made the said agreement with the OPs for a multi-storied building with lift facility. The owner’s allocation was clearly specified in schedule ‘B’ to the said agreement which is the complete first floor and second floor of the proposed building. This apart, the back side (Eastern side) vacant space of the building would be the owner’s car parking space. According to the said agreement, the construction of the building would be completed within two years from the date of sanction plan or from taking over the possession of the said plot of land that is a schedule property whichever is later.

            According to Complainant, the sanction plan was obtained on 08.01.2012. So, the building should have been completed within 07.01.2014. But, Complainant alleged that several works as mentioned in the petition of complaint in the building remained to be done by the Developers. It is further found that the Complainant claimed to have obtained possession of his allocation. Complainant also admitted to have been allowed informal entry in owner’s portion and the same is still in his custody. In his petition of complaint he claimed to have taking over the possession of the owner’s allocation in the month of April, 2017 and after that he started completion of the construction work by spending his money. It is found that though no formal possession certificate was issued to the Complainant, however, he admitted to have got his name mutated in respect of his portion that is owner’s allocation with the Kolkata Municipal Corporation. It is true in the development agreement it was decided that if the developer fails to deliver the owner’s allocation within the stipulated time after considering the unforeseen possess, the developer shall have to pay penalty @  Rs.10,000/- per month to the owner till the date of handing over the owner’s allocation. It was also decided therein, the owner shall record his name in the record of Kolkata Municipal Corporation and clear of all the previous outstanding taxes of Kolkata Municipal Corporation and after taking possession of the owner’s allocation, the developer shall pay taxes etc.

              Here, in this case what we find there are no materials on record as to when the construction of the proposed building commenced and when it was completed. The only thing we find that Complainant claimed to have entered into his allocated portion in the month of April, 2017 and claimed that thereafter he got the interior work done in his portion. Complainant claimed as stated above that he has already been in possession of his portion and he also mutated his name with the Municipal records, though claimed that no formal letter was issued to him.

            In such a situation, the prayer for penalty or reimbursement of Corporation taxes cannot be entertained. Regarding incomplete works as mentioned in Para 6 of his petition of complaint, we find there are several matters pointed out and where the lift is said to be in a very shabby condition, requiring painting and maintenance, slab on the first floor landing of the staircase broken and to be replaced which revealed that the said building are being used by the occupants for quite some time, though no specific dates were mentioned. Out of the said prayers, the prayer for construction of caretaker room and a common toilet can only be allowed as Complainant claimed that as these are yet to be done. The other incomplete works as mentioned in the said Paragraph are not being adequately supported by the development agreement.

            So, we are not going to pass any order regarding those. So, considering all these, we find that the instant complaint should be allowed against the OPs.

            Accordingly it is,

ORDERED

            That the instant complaint should be allowed against the OPs ex parte.

            OPs are directed to complete the construction of the caretaker room and the common toilet at the Premises No. 1005, Madurdaha, Police Station- Anandapur, Kolkata – 700107 and issue a formal possession letter in favour of the Complainant.

            OPs are also to pay Rs.3,000/- (Rupees Three Thousand Only) towards cost of litigation to the Complainant.

            OPs are directed to complete the work within 60 days from the date of this order, failing which Complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

          President