Case of the complainant in brief is that the complainant being the land owner entered into a development agreement on 14.02.2014 with the Opposite party no. 1 and 2 who are the partners of M/s. Ramkrishna Construction, the promoting and developing house and accordingly the complainant executed and registered a development agreement and power of attorney in favour of the OP no. 1 and 2 in respect of the land situated at F/J-18, Arobindo Sarani, Jangra Dakshin Moth, P.O.-Jangra, P.S.-Baguiati, Kolkata-700059 in order to construct a G+4 storied building therein. It is stated in the petition of complaint that as per terms and conditions of the said development agreement, the complainant is allocated with 50% of the constructed area of the building and accordingly the OP no. 1 and 2 have informed through their Advocate’s letter dated 10.11.2016 that they are ready to hand over two numbers of flat measuring 700-750 sq.ft on the front side and 700-750 sq.ft. on the back side on the 2^nd floor of the building. It is further stated by the complainant that as per the said agreement one flat on the 2^nd floor front side measuring 668sq.ft., one flat on the 2^nd floor back side measuring 652sq.ft., one flat on the first floor on the front side measuring 668 sq.ft. and remaining portion existing area 128 sq.ft. on the ground floor of the building have also been allocated in favour of the complainant and the complainants stated the OPs to receive the refundable security deposit amount of Rs. 3,00,000/- at the time of hand over the physical possession of the aforesaid flats. It is further stated that the complainant is ready to pay the balance consideration amount of Rs. 1, 50,000/- for the garage measuring 100 sq.ft. but the complainant objected to pay Rs. 1,50,000/- to the OPs for cost of extra area by sending letter dated 23.11.2016. Thereafter the complainant requested the OPs to hand over the possession of his allocated portion by sending letter dated 20.12.2016 but OPs remained silent till the filing of this case. Complainant further stated that as per terms and conditions of the development agreement OPs have failed to complete the aforesaid building within 30 months from the date of execution of the development agreement and handed over the same to the complainant and as such the OPs shall pay a rate of Rs. 5,000/- to the complainant for delaying period of completion of the aforesaid building. Thereafter the complainant on several occasions requested the OPs to hand over the owner’s allocation to him but all in vain. Hence the complainant files this case praying for direction upon the OPs to hand over one flat on the 2^nd floor front side containing area 668 sq.ft. and another flat on the 2^nd floor back side containing area 652 sq.ft. and one flat on the first floor front side containing area 668 sq.ft. and remaining portion containing area 128 sq.ft. on the ground floor of the building as per allocated share of the complainant, to hand over physical possession of the garage measuring 10X10=100 sq.ft. on the ground floor of the building @Rs.2500/- per sq.ft., to pay Rs. 3,00,000/- as compensation and Rs. 70,000/- as litigation cost and to pay Rs. 5000/- per month for delay of completion of the construction work of the building within the stipulated period of 30 months.

Notices were served upon the OPs. OPs have contested this case by filing their W/V jointly, denying and disputing all the material facts levelled against them, stating that in terms of the agreement dated 14.02.2014 the OP no. 1 and 2 paid Rs. 3, 00,000/- as interest fee refundable security deposit to the complainant and in terms of the agreement the complainant will get 50% of the constructed area out of which the complainant will get two residential flats on the 2^nd floor having its area 700-750 sq.ft. on the front side and 700-750 sq.ft. on the back side, remaining area will be adjusted on the first floor in the form of a residential flat out of agreed 50% of the constructed area.

OPs have further stated that they have already handed over the owner’s allocation to the complainant in the month of December, 2016 along with possession letter and it is settled between the parties that owner will get total 2,016 sq.ft. out of which one flat on the first floor having its area 668 sq.ft., one flat on the 2^nd floor having its area 668 sq.ft. and on the 2^nd floor having its area 652 sq.ft. but upon physical measurement the OPs repeatedly requested the complainant to receive his allocation which the complainant ignore. OPs further stated that it is also settled between the parties the owner will purchase one garage having its area 100 sq.ft. at a total consideration price of Rs. 2,50,000/- but physically the area of the garage enhanced by 56 sq.ft., total measuring 156 sq.ft. in place of 100 sq.ft. for which the complainant paid Rs. 1,00,000/- out of total consideration amount of Rs. 3,90,000/- (@2,500 per sq.ft.). OPs stated that on several occasions they requested the complainant to take possession of owner’s allocation by paying Rs. 8,13,500/- as per terms of the agreement dated 14.02.2014 by sending Advocates letter dated 11.05.2016 and 09.01.2017. As the OPs have handed over the owner’s allocation to the other owners and completed the construction work on 24.01.2017 as per the agreement, they are not deficient in providing service. Accordingly the OPs have prayed for dismissal of the case with cost.

Points for determination

1. Whether the case is within the pecuniary jurisdiction of this Commission.
2. Whether the OPs are deficient in providing service to the complainant.
3. Whether the complainant is entitled to get the relief as prayed for.

Decisions with reasons

Point no. 1

To determine the pecuniary jurisdiction the complainant files valuation report of his property which has been assessed on 14.02.2014 by additional sub registrar. It appears from the said valuation report that the market value of the said property has been assessed at Rs. 10, 80,000/- at the time of handing over the property to the developer. This case was filed under section 12(1)(c) of the Consumer Protection Act, 1986 where the value of the goods purchased or the service hired or availed of and the compensation ,if any, claimed does not exceed Rs 20lacks. In this case the valuation of the property is Rs. 10,80,000/-, compensation sought for Rs. 3,00,000/- , totalling Rs. 13,80,000/- which is well within the pecuniary jurisdiction of this Commission and thus the case is maintainable.

Point no. 1 is thus answered affirmatively.

Point no.2 and 3 are taken up together

On perusal of the agreement dated 14.02.2014 paragraph no. 4 it appears that the developer shall hand over the owner’s allocation to the owner within 30 months with a grace period of 6 months from the date of execution of development agreement by and between the parties, if the developer fails to hand over the same within stipulated period, the developer shall pay Rs. 5,000/- per month as demurrage charges. The development agreement was executed on 14.02.2014. As per agreement the date of delivery of possession would be handed over on 14.02.2017 (30 months + 6 months grace period). The complainant alleged that OPs did not hand over the possession of owner’s allocation and could not complete the construction work within 30 months from the execution of development agreement. OP no. 1 and 2 submitted that they have handed over the owner’s allocation to the complainant in the month of December, 2016 by issuing possession letter and they verbally submitted they would produce the said letter at the time of final argument but no such letter has been filed by them before this Commission to support their contention. Therefore, it is evident that OP could not hand over the possession of the owner’s allocation to the complainant till today. The act of the OP developer in not delivering the owner’s allocation on time and not giving any assurance to the complainant till date with respect to the exact date of delivery of possession even after lapse of more than 5 years amounts to deficiency in service on their part. Hence, OPs are liable to pay Rs. 5,000/- per month from the proposed date of delivery of possession till realisation as the form of compensation.

As per the agreed terms and conditions of the development agreement dated 14.02.2014 the owner shall get 50% of the constructed area in the following manners:-

On the 2^nd floor: in between 700 sq.ft. more or less a residential flat in front side of the building and in between 700 sq.ft.-750 sq.ft. more or less a residential flat back side of the building and on the first floor : rest portion of 50% share in the form of a residential flat in front side of the building. The developer shall provide one space 10X10 garage room to the owner @2,500 per sq.ft. In this regard the complainant alleged that he has paid Rs 1,00,000/out of total consideration of Rs 2,50,000/ for the garage measuring 100 sq,ft and ready to pay outstanding amount of Rs 1,50,00/ but OP no1&2 charged an amount of Rs 1,50,000/for the extra area of the said garage. On the other hand OPs stated that only 56 sq.ft. area is enhanced for which the complainant have to bear extra cost. If for certain reason the area of the unit in question is increased it would certainly result into increase in the cost of the same and the complainant may also have to incur some further amount therefore for the increased area. In our opinion, the complainant shall return the security deposit to the OPs after deducting the enhanced amount of Rs 1, 90,000/. Therefore, the complainant has to refund Rs 1, 10,000/ towards security deposit.

Since the delivery of possession of owner’s allocation has not been handed over by the OPs after expiry of more than 5 years from its proposed date of delivery and there in action compelled the complainant to file this case the OPs are liable to pay litigation cost of Rs. 25,000/- to the complainant.

All points are answered accordingly.

In the result the petition of complaint succeeds.

Hence, it is

Orderd

that the complaint case being no. RBT/CC/128/2020 is allowed on contest against the OPs with cost.

OPs are directed to hand over the possession of owner’s allocation as per terms and conditions of the agreement dated 14.02.2014 to the complainant within 2 months from this date of order. OPs are further directed to pay Rs. 5,000/- per month from 14.02.2017 till handing over the owner’s allocation and to pay Rs. 25,000/- as litigation cost.

The complainant is directed to refund the security deposit of Rs 1, 10,000/ and pay Rs 1, 50,000/ to the OPno4 towards outstanding dues of the garage at the time of receiving the possession.

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