Date of Filing : 18/02/2022

Date of Judgement : 12/07/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed u/s 35 of Consumer Protection Act, 2019 by (i) Smt. Bithika Das (ii) Sri Samrat Das (iii) Smt. Kakoli Pal & (iv) Smt. Koheli Mazumdar alleging deficiency in service on the part of the Opposite Party (referred as OP hereinafter) namely Binoy Pal Choudhury the sole proprietor of M/s. Sonama Construction.

Case of the complainants in short is that they being the joint owners, entered into a development agreement dt. 16/10/2015 with OP to develop the property described in the schedule of the development agreement and to raise a multi-storied building. A power of attorney was also executed in favour of the OP.  OP applied for sanction of the building plan before the Kolkata Municipal Corporation and it was sanctioned on 15/12/2017.  Complainants had also handed over the deed of conveyance in respect of the said land to the OP.  In terms of the development agreement dt. 16/10/2015, OP was bound to handover the owner’s allocation within a period of 24 months from the date of issuance of the valid sanction plan and also to handover the completion certificate to the complainants.  OP was also liable to pay non-refundable sum of Rs.2 lakh and if he had failed to hand over the possession of the owner’s allocation within the stipulated period of 24 months, he was further liable to pay a sum of Rs.3,000/- per month till the date of actual physical possession was handed over.  But despite the extension of time, OP failed to handover the physical possession of the owner’s allocation. On the contrary, OP had constructed a shop room in the ground floor of the building and transferred the same to third party.  A cheque was issued by the OP in favour of the complainant No. 1 amounting to Rs.10,000/- dt. 22/12/2017.  But on its presentation before the Bank for encashment, same was dishonoured on the ground of “funds insufficient”.  The complainants have requested the OP several times to handover the possession of the allocated area of the owners as per the development agreement, but he paid no heed.  The complainants have also lodged complain before the local police station.  They had also sent notices to the OP through their Ld. advocate, but all in vain.  So, the present complaint has been filed praying for directing the OP to handover the possession of the owner’s allocation in habitable condition as per agreement dt. 16/10/2015, to pay Rs.10 lakh as compensation, to pay Rs.3,000/- per month as per the agreement till the date of actual physical possession is handed over and to pay litigation cost of Rs.1,00,000/-.

On perusal of the record, it appears, on service of notice, OP had entered appearance through his Ld. advocate on 11/5/2022 and had prayed for time to file the written version, but thereafter no step was taken neither any written version was filed.  So, the case has been heard exparte. 

During the course of the evidence, to substantiate their claim, complainants have filed the Examination-in-Chief on affidavit along with the documents relied upon by them.  Ultimately, the argument has also been heard on behalf of the complainants.

So, the only point requires determination is, whether the complainants are entitled to the relief as prayed for. 

Decision with reason

Complainants have filed the development agreement dt. 16/10/2015 entered into between the parties wherefrom it appears that the complainants being the owners were entitled to the 1^st floor and 3^rd floor of the proposed G+3 storied building towards owners’ allocation and as per the terms of the agreement, OP developer was to complete the construction of the building within 24 months from the date of sanction of the building plan. It also appears that as per the terms in the said agreement, complainants were also entitled to a sum of Rs. 2 lakh as non-refundable consideration sum and further Rs.3,000/- per month if OP fails to deliver the possession. According to the complainants, the owner’s allocation as per the terms of the said agreement has not been handed over to them.  From the GD lodged before the local police station as well as the notice sent through the Ld. advocate by the complainants indicates that the work towards the construction was stopped by the OP developer and inspite of those notices sent, construction was not completed. Since, before this commission there is absolutely no contrary material to counter the claim of the complainants, the complainants are entitled to the possession of the owner’s allocation as per the development agreement dt. 16/10/2015.  They are also entitled to Rs.3,000/- per month in terms of the said development agreement as the OP failed to deliver the owner’s allocation within the stipulated period of 24 months.

Hence

            ORDERED

CC/109/2022 is allowed exparte.  OP is directed to handover the possession of owners’ allocation in habitable condition as per the development agreement dt. 16/10/2015 within 90 days from the date of communication of this order.  OP is further directed to pay a sum of Rs.3,000/- per month from 17/12/2019 to till this date within the aforesaid period of 90 days and if fails to deliver the possession, he shall pay the same till the date of possession is actually delivered.  OP is further directed to pay a sum of Rs.10,000/- as litigation cost within the aforesaid period of 90 days.