Date of filing: 14/11/2019

Judgment date: 08/02/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed under section 12 of the Consumer Protection Act, 1986 by Sri Narayan Das against opposite parties (referred as OPs hereinafter) namely (1) Arindam Roy (2) Smt. Arpita Roy (3) Smt. Renu Rani Das (4) M/s. Debjani Das and (5) Smt. Sandhya Biswas alleging deficiency in rendering of service by the OPs.

Case of the complaint in short is that complainant alongwith his brother Bablu Das (since deceased and his legal heirs being O.P. 3 & 4) and sister Sandhya Biswas being owners entered into a development agreement with O.P. No. 1 & 2 the developers on 04/08/2016 to raise four storied building and as per the said registered development agreement the owners allocation was 50% of each floor from ground to 2^nd floor. The owners also executed power of attorney in favour of the O.P. 1 & 2. As per the said development agreement the complainant was entitled to a ground floor flat measuring 440 sq. ft. super built-up area more or less being flat no. G-1 with cash non-refundable consideration of Rs. 80,000/-, Bablu Das (since deceased) was allotted ground floor flat measuring 440 sq. ft. super built-up area being flat no. G-2 and also a flat measuring 240 sq. ft. being flat no. B-3 and Sandhya Biswas was to get a flat measuring 230 sq. ft. super built-up area being flat no. B-2. As per the agreement owners allocation was to be handed over within 18 months from the date of getting vacant land from the owners by O.P. 1 & 2 or from the date of commencement of the work of proposed building. Schedule property was handed over by the owners to the developer on 10/08/2016. But despite lapse of more than 38 months the project is yet to be completed and owners allocation i.e. complainant’s allocation has not been handed over. OPs only handed over one flat in the second floor to O.P. 3 & 4 (legal hears of the deceased Bablu Das) and one flat to the O.P. No. 5 namely Sandhya Biswas in the 2^nd floor. Out of the non-refundable consideration of Rs. 80,000/- O.P. 1 & 2 have only paid Rs. 30,000/- to complainant and has not yet paid the rest of amount Rs. 50,000/- neither they have paid Rs. 2,000/- p.m. as per the terms of agreement for delay in handing over of the possession of owners allocation. The O.P. 1 & 2 being the developer were also liable to pay shifting charge to the complainant of Rs. 3,000/- p.m. but the said amount has been paid only for four months and thereafter no further payment towards shifting charge has been paid by the O.P. developers. So the present complaint has been filed by the complainant praying for directing the O.P. 1 & 2 to complete the construction job of the project and to hand over the possession of owners allocation of the complainant’s flat as described in the Schedule ‘B’ of the complaint, to hand over the completion certificate obtained from the Kolkata Municipal Corporation, to pay the arrear rent along with interest from 01/12/2016, to pay compensation of Rs. 5,00,000/- and to pay litigation cost of Rs. 50,000/-.

On perusal of the record it appears that notice was sent but neither any step was taken by the proforma OPs 3 to 5 nor by O.P. 1 & 2 and thus the case has been heard exparte against the OPs.

So the only point requires determination is whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

In support of his case, complainant has filed the registered development agreement entered into between O.P. No. 1 & 2 with the complainant, predecessor-in-interest of O.P. 3 & 4 and with O.P. 5 and has also filed the registered power of attorney. It appears that as per development agreement, complainant was entitled to a flat measuring 440 sq. ft. along with non-refundable sum of Rs. 80,000/-, out of which complainant has already received 30,000/- and Rs. 50,000/- is due. It appears further that the predecessor-in-interest of O.P. 3 & 4 was entitled to two flats i.e. one in the ground floor and another in the 2^nd floor measuring 440 sq. ft. and 240 sq. ft. and O.P. 5 was to get a flat measuring 230 sq. ft. in the 2^nd floor. As per the admitted case of the complainant O.P. 3 & 4 being legal heirs of deceased Bablu Das has already been handed over a flat in the 2^nd floor. Similarly O.P. 5 has also been handed over a flat in the 2^nd floor. Complainant even though has prayed for directing the O.P. 1 & 2 to hand over the ‘B’ Schedule property in the complaint which is described as a flat measuring 440 sq. ft. but has not stated specifically in the complaint that the possession of his flat has not been handed over. Be that as it may, since before this commission no contrary material is forthcoming to counter the claim of the complainant that he has not been handed over his flat as per development agreement by O.P. 1 & 2, he is entitled to direction upon O.P. 1 & 2 to hand over the said flat. It may however be pertinent to point out that complainant has no where stated the date, month and year of delivery of possession of flat to O.P.3 & 4 and O.P. 5. Complainant has claimed that the project has not yet been completed but he has not stated in the complaint that the flat was handed over to O.P. 3 & 4 and O.P. 5 in inhabitable condition which suggests that flats were handed over after completion of the project.

Now coming to the claim of the complainant that owners handed over the possession of the property to be developed to O.P. 1 & 2 on 10/08/2016, no document has been filed about the handing over of land. Admittedly development agreement was executed and registered on 04/08/2016. Power of attorney was also registered on the same date i.e. on 04/08/2016. Complainant has claimed for directing the O.P. 1 & 2 to hand over the building completion certification obtained from the Kolkata Municipal Corporation. If that be so than how it was possible that within a period of 5 to 6 days building plan was sanctioned and as such it indicates that either no building plan was sanctioned by Kolkata Municipal Corporation or the date of handing over of the possession of the property by the owners to the developers being 10/08/2016 as claimed by the complainant, is not correct. Thus in the absence of any specific evidence in this regard as well as the date of handing over of flats to O.P. 3 & 4 and O.P. 5, the claim of the complainant that developers are bound to pay Rs. 2,000/- p.m. after expiry of alleged 18 months cannot be accepted. Complainant has also not stated when actually the construction of the proposed building was started. It may be mentioned here that the complainant has not filed any document showing any step taken by him for not handing over of the possession of the flat to him even though two flats were handed over to the other co-owners. No letter was written to the developer agitating not handing over of the possessions of the flat. So taking into consideration the facts and situation as discussed above, in the absence of the contrary material to counter the claim of the complainant, complainant is entitled to direction for handing over the possession of the flat towards his share as per the development agreement but we find no justification to direct for the amount as claimed by the complainant either towards arrear rent or towards delayed delivery of the possession for the period as claimed by the complainant. However, he is entitled to remaining Rs. 50,000/- towards non-refundable consideration of Rs. 80,000/- and also compensation for harassment and mental agony. An amount of Rs. 60,000/- will be justified as compensation.

Hence,

           ORDERED

CC/582/2019 is allowed exparte. O.P. 1 & 2 are directed to deliver the possession of the flat to the complainant as per the development agreement dated 04/08/2016 and to pay balance amount of Rs. 50,000/- towards the non-refundable sum and further an amount of Rs. 60,000/- as compensation and Rs. 12,000/- as litigation cost within three months from this date. In default of payment, entire amount shall carry interest @8% p.a. till its realization.