Case of the complainant in brief is that being a co-owner of a piece of land situated at Mouza-Baranagar, Holding no.-109A Khatian No.-2049, 10162, Premises no. - 23/11, Roy Jatindranath Choudhury Lane, Kolkata-700036, P.S.-Baranagar, District- North 24Pgs, the complainant entered into a development agreement with OP no. 1 and 2 the developers on 18.11.2013 and accordingly the complainant along with other owners executed general power of attorney in favour of the OP developers. It is stated in the petition of complaint that as per the terms of the development agreement it was agreed by and between the parties that the developers would raise a G+2 storied building on the said plot as per sanctioned building plan of Baranagar Municipality and would hand over a self-contained flat on the top floor (North-West side) measuring about 200 sq.ft. to the complainant within 18 months from the date of sanction of building plan from Baranagar Municipality. It is further stated by the complainant that after completion of the said building OP did not hand over the possession to the complainant till date. On several occasions the complainant requested the OPs to hand over the said flat in favour of the complainant but all gone in vain. Thereafter, the complainant by sending Advocate’s letter dated07.09.2021 requested the OPs to hand over the same which OPs did not receive. Under such circumstances the complainant filing this case prayed for direction upon the OPs to hand over the possession of the flat as per agreement dated 18.11.2013 to the complainant along with compensation and litigation cost.
Notices are served upon all the Ops in spite of that none appeared on behalf of them. Hence, the case was proceeded ex-parte vide Order No. 05 dated 23.08.2022.
To prove her case, the complainant adduced the following documents:-
- Development Agreement dated 18.11.2013.
- General Power of Attorney dated 18.11.2013.
- Notice dated 07.09.2021.
Decision with reasons
The complainant being a co-owner of a plot of land with the OP 3 to OP 9 entered into an agreement for development on 18.11.2013 with OP1 and 2, from where it appears that after completion of the proposed building the complainant was to be delivered a flat at the North-West side in the top floor of the building within 18 months from the date of sanction of the plan by the Dum Dum Municipality.
The complainant alleged that after completion of the said building she requested the OP/developer to hand over the same but till date they did not do the same. It is observed that the development agreement was executed in the year 2013 and this instant case was filed in the year 2022, after lapse of 9 years.
Needless to say the parties are bound by the agreement. In a decision reported in AIR 1996 SC 2508 (Bharati Knitting Company Vs. DHL World Wide e
Express Courier division of air freight Ltd.). The Hon’ble Supreme Court has observed thus:-
“It is seen that when a person signs a document which contains certain contractual terms, as rightly pointed out by Mr. R.F. Nariman, Ld. Senior Counsel, that normally parties are bound by such contract, it is for the party to establish exception in a suit…..but when there is a specific term in the contract the parties are bound by the terms in the contract. “
The fact remains that as per term of agreement the OP was under obligation to hand over the subject flat in favour of the complainant. The complainant being a co-owner of the land which is developed by the OP is given to the OP for development of the property in the hope of get a flat to live in cannot wait for indefinite time to wait. It a glare example of deficiency in service on the part of the OPs and they are liable to pay compensation and litigation cost to the complainant.
In the result, the petition of complaint succeeds.
Hence, it is,
Ordered
that the complaint case being no. 67 of 2022 is allowed ex parte against all the OPs. OPs are directed to hand over the possession of the flat as per agreement dated 18.11.2013 to the complainant and to execute and register the deed of conveyance in favour of the complainant within 45 days from this date of order. OPs are further directed to pay Rs. 20,000/- as compensation and Rs. 10,000/- litigation cost to the complainant within 45 days from this date of order failing which the entire amount shall carry interest @12%p.a.
Let a plain copy be given to the parties free of cost as per CPR.
Dictated and Corrected by
[HON'BLE MRS. Sagarika Sarkar]
MEMBER
