Present         (1)      Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                               President

                    (2)      Smt. Karishma Mandal,

                              Member

                    (3)      Anil Kumar Singh

                              Member

Date of Order : 19.11.2018

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to complete full construction in/of the Shanti Abhinav Enclave/Apartment including the full construction in/of the common areas in the said Enclave including staircase, lift, terrace, ground floor of all the car parking areas as per the provisions of the development Agreement dated 22.08.2000.

2. The facts of this case lies in a narrow compass which is as follows:-

The complainant has asserted that her husband Late B.P. Sinha had entered into agreement with M/s Ashwarya Construction (I) Pvt. Ltd., Patna vide development agreement dated 22.08.2000 vide annexure – 1 whereby and where under M/s Ashwarya Construction (I) Pvt. Ltd., had agreed to construct at their own cost an apartment, residential building complex in the said piece of land contained in schedule – I of the said development agreement. By virtue of aforesaid development agreement M/s Ashwarya Construction (I) Pvt. Ltd., agreed to give 34.41% of the total builtup area including flat and parking area of the building with proportionate share in the land to the owner (husband of the complainant) in consideration for the value of the said piece of land and to sale remaining 65.59% of the builtup area with proportionate share in the land to the prospective buyers who may form an association of buyers or a new co – operative housing society for the purpose of buying and owing flat in the said building.

It further appears that later on there was partnership deed cum letters of understanding appears to be executed on 17^th day of July 2006 between one Pushpalata Kumari who is opposite party no. 1 in the present complaint petition and M/s Ashwarya Construction (I) Pvt. Ltd., who was second party in the development agreement dated 22.08.2000 which was executed between M/s Ashwarya Construction (I) Pvt. Ltd., and Sri Bijendra Prasad Sinha (husband of the complainant) since deceased. The aforesaid apartment is known as SHANTI ABHINAV ENCLAVE as per development agreement dated 22.08.2000 and memorandum dated 06.08.2000. After death of the husband of the complainant she became land owner by virtue of different orders passed by different competent agency the details have been mentioned in the complaint petition which has not been disputed, it appears that after execution of partnership deed, the opposite party no. 1 has stepped herself in place of M/s Ashwarya Construction (I) Pvt. Ltd., and as such she was bound to implement the provision of the development agreement dated 22.08.2000.

It further transpires that opposite party no. 1 had not completed the work and developed the land in question as per development agreement, hence the complainant as well as the alotty/purchaser of the flats have taken shelter to this forum for directing the opposite party no. 1 to complete the construction of the building and provide other amenities such as lift etc. to them and as such at the request of the alotties they have been added as Performa opposite party no. 2 to 15. Performa opposite parties have also supported the complaint by filing written statement. The grievance of the performa opposite parties are that they had paid the consideration price but the company has failed to perform its liability accrued out of the sale agreement and also flauted the terms and condition of the development agreement dated 22.08.2000.

On behalf of opposite party no. 1 a preliminary objection was taken that as the complainant has not paid consideration to opposite party no. 1 hence she is not Consumer. However, the preliminary objection of the opposite party no. 1 stand over ruled by this forum vide order dated 14.05.2000 and the opposite party no. 1 was directed to file written statement so that the complaint case be decided on the point of fact and law.

It further appears that the complainant has not added M/s Ashwarya Construction (I) Pvt. Ltd., as a party in the light of order dated 04.05.2011 of this forum and as such this case is hit by miss-joinder of the party.

It has been further stated that opposite party no. 1 is helpless to do any type of work in the light of the order dated 21.02.2008 of town commissioner, Patna municipal corporation hence unless the aforesaid order of the town commissioner is modified or set aside. In Para – 12 of the written statement following fact have been asserted, “that all legal formalities on legal obligation/duties can be executed only Managing Director of M/s Aishwarya Construction Pvt. Ltd. The opposite party no. 1 cannot do anything without taking proper authority/permission/no objection certificate from the Managing Director of M/s Ashwarya Construction Pvt. Ltd.”

This case has been heard several times but order could not passed due to lac of infrastructure.

It is admitted that opposite party no. 1 had entered in this project by virtue of partnership deed executed between opposite party no. 1 and M/s Ashwarya Construction (I) Pvt. Ltd., hence opposite party no. 1 had substituted herself in place of M/s Ashwarya Construction (I) Pvt. Ltd., which had earlier executed a development deed dated 22.08.2000 with the husband of the complainant (since deceased) Undisputedly the complainant is the land owner and she has right to pursue the matter as per provision of the development agreement. It is true that the complainant has not added M/s Ashwarya Construction (I) Pvt. Ltd., as a party but this fact is not sufficient to absolve opposite party no. 1 from the responsibility of executing the terms of development agreement dated 22.08.2000 because she knowingly and deliberately had executed partnership deed with M/s Ashwarya Construction (I) Pvt. Ltd., and the complainant has right to compel opposite party no. 1 to fulfill the provision of development agreement.

We think it proper to quote the fact stated in Para – 5 of development agreement which is as follows, “the developer shall submit the building plan prepared by the said Architect in accordance with law, to Patna Regional Development Authority (P.R.D.A.) and other authorities. The plan of the proposed construction shall be submitted to P.R.D.A. and other appropriate authority, if any in the name of owner Sri Brajendra Prasad Sinha, S/o Late Sachidanand Sinha. The owner shall sign all relating papers as required by the developer for obtaining sanction of the said building plan on behalf of the owner from Patna Regional Development Authority and /or other authorities, if any and cost and expenses rebating to above shall be paid and borne by the developer.”

We also think it proper to quote Para – 5 of the partnership deed dated 17.07.2006 which is as follows, “that the first party will be a working partner, who shall provide 100% capital according to business need and he will be sole responsible for any loss or any damage in the business. In other words he will also be entitled to get 100% profit in the business. The second party will be a sleeping partner who will look after the project whether the same is being constructed according to sanctioned map or not more so the second party will do the work for the advantage of the partnership.”

From bare perusal of Para – 5 of partnership deed it is crystal clear that M/s Ashwarya Construction (I) Pvt. Ltd., is also a sleeping partner and as such the opposite party no. 1 has right to chase the company for help in completing the rest project as per development agreement.

For the reason stated above we find and hold that by not completing the unfinished work of “SHANTI ABHINAV ENCLAVE” opposite party has committed deficiency.

Hence, we direct the opposite party no. 1 to complete the construction of the flat in question with all amenities as per terms and conditions of development agreement dated 22.08.2000 executed between complainant’s husband and M/s Ashwarya Construction (I) Pvt. Ltd., within the period of six month from the date of receipt of this order or certified copy of this order after obtaining necessary permission from competent authority in accordance with law.

Opposite party no. 1 is further directed to pay Rs. 25,000/- ( Rs. Twenty Five Thousand only) to the complainant by way of compensation and litigation cost within the period of two month.

Accordingly, this complaint stands allowed to the extent referred above.

                                       Member                                 Member(F)                      President