Date of Filing                         :    18 September, 2020.

Date of Final Order              :    23 July, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

                This complaint under Section 35 of the Consumer Protection Act, 2019, the Act, has been filed by Sri Sri Dilip Kumar Ghosh, resident of Village – Pakuria, P.O. – Lakshmanpur, Howrah, for short the Complainant, against Sri Bimal Das of 78, Brindaban Mullick Lane, Howrah – 711 101, hereinafter called the Opposite Party or OP, alleging deficiency in service occurred from the part of the OP arising out of non-delivery of  owners allocation in accordance with the Development Agreement and praying for relief as under:-

                In the light of the facts and circumstances as enumerated in the complaint petition, it is respectfully prayed that this Hon'ble Commission may graciously be pleased to:-

                Direct the Opposite Party to hand over a full finished flat admeasuring about 700 sq ft excluding super built up area in the second floor of the proposed building;

                Direct the Opposite Party to pay ₹3,00,000/- payable to him as per Clause – 8 of the Development Agreement;

                Direct the Opposite Party to pay ₹5,00,000/- as compensation for causing prolong physical and mental harassment to the complaint and to pay ₹25,000/- as litigation cost;

                Direct the Opposite Parties to issue possession certificate in favour of the complainant and to issue completion certificate and also to pass such other order/orders as this Commission may deem fit and proper.    

             Brief facts of this case as emerged from the complaint petition and the annexed documents are that the complainant entered into a registered Development Agreement on 20/02/2013 with the OP intending to develop his premises at 31/15, Brindaban Mullick Lane, Howrah – 711 101, by constructing a G+3 building by the Developer/OP.  He is the owner of this premises he had purchased through a registered Deed of Sale on 11/07/2007.  A registered Power of Attorney was also executed on 20/02/2013 in favour of the OP and on the strength of these development agreement and power of attorney the OP get the building plan sanctioned by the concerned authority vide no. 94-13-14, dated 12/08/2014.  The OP then constructed the proposed G+3 storied building thereon.  It was settled that the OP would hand over a 700 sq. ft. flat (door to door/outside wall) excluding super built up area in the second floor together with undivided proportionate share of land underneath and with all the common facilities within two years from getting full vacant khas possession and Sanctioned building plan. It was also written in the development agreement that the OP would pay a sum of ₹3,00,000/- to the owner/complainant after completion as well as selling all the portion of the Developer’s allocation. Complainant’s allegation is that the OP could not hand over his allocated flat till January, 2020, stating various excuses from one pretext to another.  Even the owner/complainant noticed that his flat had not been completed at all.  Besides, the complainant noticed in January, 2020 that the OP was trying to raise another floor over the building without having sanctioned plan for which he revoked the Power of Attorney and instructed the OP to restrain from raising extra floor in the building, but the OP did not care of his instruction even the OP tried to sell out the owners allocation to a third party and finding no other option he filed this instant complaint petition seeking relief as stated herein before.

            Complainant filed copies of (i) registered Sale Deed executed and registered on 11/07/2007 during his purchase of the premises, (2) registered Development Agreement and registered Power of Attorney dated 20/02/2013, (3) sanctioned building plan being no. BRC-94/13-14, dated 24/09/2013 sanctioned on 12/08/2014 and (4) revocation of Power of Attorney dated 20/02/2013 duly registered on 16/06/2020 as annexure to the complaint petition.

            Notice was served upon the OP after admission who appeared through his Ld. Advocate Mr. Sourav Kumar Das, and filed his written version.  Then the complainant filed his Evidence on Affidavit.  Later the OP failed to file his Questionnaire nor did he file any evidence though repeated opportunities were given. Then the Op was directed to file show cause which he did not comply and as a consequence ex parte argument was fixed.  Complainant then filed his Brief Notes on Argument and his argument was heard in full.  OP did not participate in the argument.  We are now in a position to deliver the Final Order in this case.  We have to decide whether the complainant is eligible to get relief/reliefs as prayed for.

            Let us proceed to our decision.

DECISION WITH REASONS

            It is an admitted fact that the complainant being the owner had executed a Development Agreement with and given Power of Attorney in favour of the OP on 20/02/2013 which were registered on that date.  This agreement was executed to construct a G+3 storied building at the premises at 31/15, Brindaban Mullick Lane, Bantra, Howrah – 711 101, which the complainant purchased through a Sale Deed on 11/07/2007 which was registered in Book-1, CD Vol.-3 from Page from 20 to 33 in the year 2008, precisely on 18/01/2008, in the Office of the DSR, Howrah.  Under the strength of the development agreement and power of attorney the OP got the Building Plan sanctioned by the HMC vide Sanction No. BRC – 94/13-14, dated 24/09/13, sanctioned on 12/08/2014.  Then the OP started construction of the proposed G+3 storied building. According to Clause–8 in Page–7 of the development agreement the owner was entitled to get a flat of area about 700 sq. ft. (Door to Door/outside wall) excluding super built up area in the second floor and a sum of ₹3,00,000/- to be paid by the OP ‘after completion as well as selling of the entire (G+3) building except owner’s allocated portion.’ [Emphasis supplied.].  In Clause–6 under the title ‘EXPLOITATION OF RIGHTS’ in Page–9 it is written therein as: ‘The Developer shall provide and allot Flat/Flats as stated above in favour of the First Part / Land owner exclusively within two years from the date of getting full vacant khas possession and sanction plan from Howrah Municipal Corporation …..’ [Emphasis supplied.]  This Clause, along with the copy of the sanctioned plan state that the owner/complainant was eligible to get his allocated flat within 12/08/2016.  But to his surprise the OP failed to hand over the much needed possession of his flat till January, 2020 due to various excuses of the OP. 

            An interesting point is noted here:  the area of the premises at 31/15, Brindaban Mullick Lane is of 2 Cottah 12 Chittak which means that its area is (2x720 + 12x45)sq. ft. = 1,980 sq. ft. and the owner/complainant was entitled to get only a 700 sq ft flat, excluding super built up area, in the entire G+3 storied building and a sum of ₹3,00,000/-.  However, it is a settled principle that a Consumer Commission is not entitled to judge on or re-write an agreement and hence we are refrained to comment on such allocation.

                The OP/Sri Bimal Das in his written version denied and disputed each and every paragraph of the statement of the complaint.  In his averments the OP stated that he himself had purchased the suit property in the year 2007 in the name of the complainant, called as benami purchase, to avoid ‘detriments’ to his business from competitors and allowed the complainant to live at that premises and was eager to develop the premises in a favourable situation.  Consequently, in the year 2013, the OP made the stated development agreement and started construction of the proposed building.  He stated that during the construction of the project he suffered a cerebral attack and had rendered incapacitated from moving about or taking any form of stress.  Because of his serious health condition the completion of construction delayed.  At this condition, it is alleged, the complainant started creating pressure to hand over his allocation and obstructed to sell out developers allocation.  It is also alleged therein that the complainant forcefully occupied his allocation without permission of the developer though he had the obligations as per terms of the agreement.  He tried to explain that the project was a joint venture of the complainant and the OP instead of the owner-developer relationship and for that reason he prayed before this Commission that the instant complaint should be dismissed as there was no cause of action as claimed by the complainant.

                However, as stated earlier, we are not depart from the writings of the development agreement.  The OP stated that during construction he suffered cerebral attack and he annexed relevant medical certificates, though we have not found any such document in the case record.  The OP alleged that the complainant had forcefully occupied a 720 sq. ft. flat and he never tried to sell out the owners allocation whereas the complainant stated that whenever he requested the OP to complete his flat and hand over possession every time the OP avoided his duty stating some excuses.

                In the end, we find from the written version of the OP that the OP has indirectly accepted his obligation to hand over owners allocation as stated in the development agreement but had not executed his duty till filing this case.

                So, in conclusion, we see that the OP has delayed in finishing the construction of the proposed G+3 building, whatever may be the cause, and thereby delayed in giving formal possession of the owners allocation/flat to the complainant.  The development agreement tells us that the complainant has given his premises in order to receive ‘Service’, as is defined under Section 2(42) of the Consumer Protection Act, 2019, in the form of housing construction, from the OP.  So, the complainant is a ‘Consumer’, as is defined under Section 2(7) of the said Act and the OP has failed to render proper service to the owner/complainant in accordance with the agreed terms and conditions of the development agreement.  Hence, a ‘Deficiency’, as per Section 2(11), in service has been occurred from the part of the OP for which he must compensate.  The OP is liable to hand over physical and formal possession of the earmarked flat to the complainant as owners’ allocation strictly obeying the terms of the development.  The owner/complainant is entitled to get possession of his allotted flat together with proposed sum of ₹3,00,000/- without further delay. The OP must issue the possession letter and also supply the completion certificate in respect of the flat of the complainant.  However, as the complainant has revoked the power of attorney, no compensation in this case is allowed but the OP has the obligation to comply with the promises as were written down in the development agreement, since he has undertaken the responsibility of constructing the G+3 storied building.

            Hence, it is

ORDERED

                that the Complaint Case No. CC/182/2020 be and the same is allowed on contest against the Opposite Party.

                The Opposite Party is directed to hand over the allocated flat to the complainant in the second floor in complete habitable condition in accordance with the Agreement for Development dated 20/02/2013.  The Opposite Party is directed to hand over Possession Letter and Completion Certificate in respect of this flat and also pay ₹3,00,000/- to the complainant as is mentioned in the Agreement for Development dated 20/02/2013.

                The Opposite Party is bound to comply with these directions within 60 days from the date of this order failing which the complainant will have the liberty to take recourse under the law.

                Let a free copy of this order be issued, on demand, to both the parties.

Dictated and corrected by me

            Member.