West Bengal

South 24 Parganas

CC/273/2015

1. Sri Haridas Saha, S/o Late Ramkrishna Saha. - Complainant(s)

Versus

Smt. Rinku sharma, Wife of Sri Jagindar Sharma, Proprietress of M/S. Aryan Enterprises. - Opp.Party(s)

Smt. Mousumi Chakraborty.

09 Oct 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

         C.C. CASE NO. _273_ OF ___2015_

 

DATE OF FILING : 10.6.2015                        DATE OF PASSING JUDGEMENT: _9.10.2015___

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :      1.  Sri Haridas Saha

                                                  2.  Sri Rampada Saha

                                                  Both sons of late Ramkrishna Saha of 46, Santinagar Colony,P.S. Regent Park,

  Kolkata – 40.

 

 

-VERSUS  -

 

O.P/O.Ps                            :     Smt. Rinku Sharma,w/o Sri Jogindar Sharma , Prop. Of M/s Aryan Enterprise of

 5/A, Vivekananda Nagar, P.S. Regent Park, Kolkata -40.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

Sri Jinjir Bhattacharya, Member

 

            The case of the complainant, in brief, is as under:

            The complainants are the joint owners of a land measuring 1 cottah 14 chittak 12 sq.ft situated at 67/14, Santinagar Colony, within KMC Ward no.97 , P.S. Regent Park , Kolkata – 40 under District South 24-Parganas . Sometimes in May, 2010, the complainants with intent to develop their aforesaid bastu property by constructing a multi storied building thereon after demolishing the existing structures, contacted the O.P who is/was engaged in the promotion and development of housing property and entered into a Development Agreement on 24.5.2010 with the O.P and also executed and registered “Power of Attorney” in favour of the O.P for doing everything for the purpose of construction of the proposed building and also to deal with the 3(three) flats under the Developer’s allocation with the third party. Thereafter, the O.P in violation of the terms of the agreement did not complete construction of the proposed three storied building in all respect leaving some internal sanitary and plumbing work, sewerage connection etc. unfinished and did not obtain completion certificate from the concerned department of KMC. The O.P sold out all the three flats under developer’s allocation to third parties before handing over possession of the rest three flats under owners’ allocation completed in all respect to the petitioners. The O.P has delivered possession of only one out of three flats of owners’ allocation to one of the complainants being complainant no.2 Sri Rampada Saha but the O.P is negligent in the matter of delivery of possession of two other flats to the petitioners completing the same in all respect despite repeated request from the side of the complainants. The O.P dishonestly let-out a flat from the owner’s allocation to a third party and having illegal gain at the cost of the complainants. Moreover, the O.P has constructed unauthorized one additional flat on the roof of the building ignoring objections of the complainant. The O.P has not intentionally paid the shifting charges/rent for alternative accommodation @ Rs.2000/- per month from June, 2010 till delivery of possession of the flats under owners’ allocation as agreed upon in the agreement. The O.P used inferior quality of materials in the construction of the building in violation of the specification contained in the agreement. Notice of complainant’s advocate of 4.2.2015 requesting the O.P for completion of the building, giving possession of other two flats as per owners’ allocation and praying for shifting charges to the complainant although received by the O.P on 5.2.2015 by post was not replied by the O.P. .With the allegation of commission of negligent acts by the O.P and deficiency of service together with adopting unfair trade practice against the O.P., the present petition of complaint under section 12 of the C.P Act, 1986 is made by the complainants with prayers for such relief/reliefs as contained in the petition of complaint. 

            Despite service of notice upon the O.P and allowing reasonable opportunity for filing written version, the O.P did not appear and contest the case by filing written version . So, the case proceeded exparte against the O.P.

            The complainants filed evidence on affidavit and BNA. The evidence of the complainants remains unchallenged and ,therefore, we place reliance upon the unchallenged testimony of the complainants in deciding the present petition of complaint. We find that the complainants being the owner of the scheduled property entered into a development agreement with the O.P on 24.05.2010 for construction of a 3-storeyed /4-storeyed building thereon after demolishing the existing structure with certain terms and conditions set forth therein. In terms of the said agreement, the O.P was liable to complete construction within 18 months from having vacant possession of the land and allocation of flats after construction between the owners and the developer(O.P) would be in the ratio of 50:50. For construction of a 3-storeyed building, owners’ allocation would be ground floor front side, first floor back side and second floor front side. As per the said agreement the developer was under obligation to hand over possession of owners’ allocation  before handing over the flats to intending purchasers.

            A registered power of attorney was given to the developer by the owners , inter-alia, for the purpose of selling the individual share of land for the flats of developer’s allocation at the rate to be fixed by the Developer. The developer was under obligation to put after completions of construction of new building, the owners’ possession of owners’ allocation in complete and habitable condition together with all rights in common areas and parts and facilities in the same building.

            From the unchallenged evidence of the complainants, it is seen that only one flat out of agreed three numbers of flats falling under owners’ allocation has been handed over to one of the complainants Sri Rampada Saha and that the O.P has not paid shifting charges of Rs.2000/- per month from June, 2010 to the owner no.1 Haridas Saha. It is also seen from the evidence that the O.P constructed unauthorized one flat on the roof and sold out her entire developer’s allocation and that the O.P let out one flat of the owner’s allocation to a third party.

            The complainants have filed a letter dated 4.2.2015 of their Advocate asking the O.P to give the complainant’s possession of other two flats under owners’ allocation, demolish the unauthorized constructed flat in the roof and pay shifting chares of Rs.2000/- to the complainant since June, 2010. Postal intimation shows that the letter was received by the O.P on 5.2.2015. But there is nothing in the record to show that the O.P took any step in this respect.

            Actions of the O.P, clearly indicates that there was deficiency on the part of the O.P in rendering service to the complainants and she deliberately violated the terms and conditions of the development agreement made with the complainants.

            We are of the opinion that the complainants have been successful to prove their case.

            But we cannot allow the prayer of the complainants to direct the O.P for demolition of unauthorized construction on the roof of the building because only the Municipal Authority is authorized to do so, if any, construction is found made not in accordance with the sanctioned plan.

            As regards claim for payment of shifting chares of Rs.2000/- by the O.P, we see that conditions for making such payment is hand written on the agreement and not authenticated or countersigned by the O.P at the appropriate place of insertion. Hence, we are not inclined to direct the O.P to pay any shifting charges on the prayer made by the complainants.

            The complainants are entitled to get two more flats of owners’ allocation as per agreement. The complainants are also entitled to compensation for the mental agony and harassment for the negligent acts of the O.P. We are of the view that a compensation of Rs.1,00,000/- should be awarded to the complainants.

 

 

 

 

 

 

            In view of the findings made as above, we hold that the complaint petition should be allowed and hence, it is

                                                                        Ordered

That the petition of complaint under section 12 of the C.P Act, 1986 is allowed in part on exparte against the O.P.

O.P is directed to hand over possession of the remaining two flats of owners’ allocation to the complainants in  finished and habitable condition within 60 days from the date of this order.

O.P is further directed to pay compensation of Rs.1,00,000/- to the complainants in equal share by separate account payee cheques drawn in favour of the complainants within 30 days from the date of this order.

O.P is directed to pay litigation cost of Rs.10,000/- to the complainants in equal share by separate account payee cheques drawn in favour of the complainants within 30 days from this order.

Complainants will be at liberty to approach the appropriate authority for demolition of any unauthorized construction in the scheduled property.

             

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member                                               President

Dictated and corrected by me

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                           The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

Ordered

That the petition of complaint under section 12 of the C.P Act, 1986 is allowed in part on exparte against the O.P.

O.P is directed to hand over possession of the remaining two flats of owners’ allocation to the complainants in  finished and habitable condition within 60 days from the date of this order.

O.P is further directed to pay compensation of Rs.1,00,000/- to the complainants in equal share by separate account payee cheques drawn in favour of the complainants within 30 days from the date of this order.

O.P is directed to pay litigation cost of Rs.10,000/- to the complainants in equal share by separate account payee cheques drawn in favour of the complainants within 30 days from this order.

Complainants will be at liberty to approach the appropriate authority for demolition of any unauthorized construction in the scheduled property.

             

Let a plain copy of this order be served upon the parties free of cost.

 

Member                                                           Member                                               President