Hon’ble Mr. Ajeya Matilal, Presiding Member
Ld. Advocate for complainant is present and files amended complaint along with BNA.
Heard the Ld. Advocate for the complainant.
This is a case u/s 12 of the C.P. Act, 1986. The fact of the case is in short like that the complainant is the owner of all that piece and parcel of 1 cottah 11 chitacks land with structure thereon comprised in holding no. 2/5 Bairagi Para Lane, P.S. Bantra, Dist- Howrah. The complainant is an old lady having the said property. In order to develop the same the complainant entered into a development agreement on 26.12.2008 with OP annexed at running page no. 6 at the complaint. The original copy of the development agreement is in custody of the OP/developer. As per the terms and conditions of the development agreement the complainant was supposed to get 40% of the sanctioned covered area of the building to be constructed over the property. The owner’s allocation as per development agreement would consist of 40% of the sanctioned covered area in the form of several completed flats. Following the agreement for development, the complainant executed a power of attorney on 19.01.2009 in favour of the OP before D.S.R house Howrah. As per development agreement, the OP was required to complete the entire construction work within 24 months as per clause 9 of the development agreement. The OP could not complete the construction till date. The 40% of area, which the complainant was entitled to get is 748 sq. ft. on the ground floor, 748 sq. ft on the 1st floor, 748 sq. ft on the 2nd floor and 350 sq. ft on the 3rd floor in total 2594 sq. ft. Prior to institution of this case, the complainant got possession of two flats one on the ground floor measuring about 222 sq. ft and another flat on the 1st floor measuring about 579 sq. ft. The total area of the aforesaid flat is 801 sq. ft. Out of the total built up area of 5187 sq. ft., the complainant got 801 sq. ft. So, the complainant is further entitled to get 1273.80 sq. ft. which would reveal from the report of the Ld. Engineer Commissioner. According to the complainant the market value of residual allotment was estimated approximately Rs. 44,58,300/-. During pendency of the instant case the developer sold out all the flats available in the multi storied building. So no flats were available for the complainant in the building. But the complainant is entitled to get deficit area of 1273.80 sq. ft. from the developer in terms of the owner’s allocation. According to the complainant at present the monetary value of each sq. ft is rupees 3500/-. The shortfall area is 1273.80 sq. ft. and the value of the same would be Rs. 44,58,300/-. The OP did not contest the case by filing any W.V.
In support of his case the complainant examined herself and she filed some documents in course of evidence which we have mentioned earlier.
In prayer the complainant prayed for direction upon the OP to deliver 1794 sq. ft. flats in complete form. Alternatively, the complainant prayed for providing her with alternative accommodation measuring about 1273.80 sq. ft. of built up area, alternatively the complainant prayed for compensation of monetary value of Rs. 3500/- per sq. ft in respect of shortfall area of 1273.80 sq. ft. As per calculation it will amount to Rs. 44,58,300/-. The complainant also made a prayer for compensation of Rs. 10,00,000/- for mental agony.
The Ld. Advocate for the complainant submitted that no flat is available as all the flats were sold by the developers as per the report of the Ld. Commissioner. The developer is not in a position to provide with any alternative flat.
It appears from the aforesaid discussion that the complainant is a consumer and there is deficiency on the part of the OP. So, the complainant is entitled to relief as prayed for.
So the case succeeds.
Hence it is ordered
The CC/82/2015 is allowed ex parte against the Opposite Party with litigation cost of Rs. 10,000/- and compensation of Rs. 2,00,000/-. The Opposite Party is directed to pay Rs. 44,58,300/- to the complainant within 90 days along with compensation and litigation cost, failing which it shall carry interest @ 8% p.a. from this date till its realisation. The complainant will be at liberty to put this order into execution after the expiry of the stipulated period.
