Hon’ble Mrs. Soma Bhattacharjee, Member
The complaint case has been filed by the complainants Sri Partha Sarathi Dutta and Sri Damrupani Dutta against OP no. 1 Sri Debabrata Mondal and Ors., Developers u/s 17 of C.P. Act, 1986. The complaint is valued at Rs. 45,00,000/-.
The facts of the case in a nutshell are: The complainants along with their another brother Goutam Dutta are owners, by inheritance, of a plot of land measuring about 01 Cottah, 15 Chittaks and 11 Sq. ft. be the same a little more or less lying and situated at Premises No. 11/3, Satchasi Para Lane, Kolkata- 700036, under Ward No. 1, District- North 24 Parganas, within the Limits of Kolkata Municipal Corporation and possessed the property more fully and sufficiently by mutating their names in the record of Kolkata Municipal Corporation and renumbered as 11/3, Satchasi Para Lane Kolkata- 700036, under Police Station – Cossipore, District- North 24 Parganas.
OP nos. 2 and 3 who are Partners of OP no. 1, are respectively residents of 20 Satchshi Para Lane Kolkata 700036, P.S. Cossipore and 10B South Sinthee Road Kolkata 700050 P.S Sinthee and also 10/1F Satchaasi Para Lane Kolkata 700036 P.S Cossipore.
The complainants along with Goutam Dutta intended to construct one multi storied building on their plot of land for residential purpose. They entrusted the job of development on the OPs, at the cost of the OPs, and accordingly one development agreement was executed between the two parties that is the complainants and the OPs and proforma OP Goutam Dutta on 29.04.2014. It was duly notarised on 14.05.2014. The complainants empowered the OPs as their Constituted Attorney by registered Power of Attorney No. 03107 for the year 2014 duly registered at office of the Additional Registrar of Assurances – III at Kolkata for construction of building, sanction of building plan, sale of developer’s allocation and other purpose for smooth development of the land of complainants and at the time of signing the development agreement and power of attorney, the complainants and Goutam Dutta handed over all the original deed, tax receipts, site plan of land, current electric bill, current corporation tax receipt etc. of the land to the Opposite Parties.
As per the agreement the OP no. 1, being represented by OP nos. 2 and 3, demolished the structure standing over the aforesaid premises of the complainants and shifted the complainants and their family members to a temporary accommodation on rental basis with an undertaking to pay monthly rent regularly by the OPs, till delivery of possession of owners’ allocation.
As per the terms of the development agreement the OP/ developer also agreed to deliver the owners’ allocation according to clause no. 3.1 (i), (ii) of the said development agreement within 20 months from the date of sanctioned plan or taking possession of the property from the complainants.
The OPs started constructing the building but deviated from the sanctioned plan received from KMC. The complainants requested the OPs not to deviate from the sanctioned plan but OPs proceeded with deviation for their illegal gain.
As per the development agreement dt. 29.04.2014 the owner’s allocation is 1270 sq. ft. more or less covered area out of which the developer shall handover a complete flat measuring about 424 sq. ft. more or less on the 2nd floor in favour of Partha Sarathi Dutta. Another complete flat measuring about 423 sq. ft. more or less, on the 2nd floor shall be handed over in favour of Sri Damru Pani Dutta and the last one complete flat on the 3rd floor front portion measuring about 423 sq. ft. more or less shall be handed over to Sri Goutam Dutta together with undivided proportionate share of the land and the building and apart from that the 2nd party developer shall also pay Rs. 15,00,000/- to the owners at the time of execution of agreement.
As per the development agreement if the developer fails to complete the construction work within the specified time to handover, within 20 months of sanction of plan, then he will be bound to pay Rs. 100/- per day to the landowners till the date of delivery.
Vide a letter, the complainant no. 2 Damru Pani Dutta requested the OPs to amalgamate his allocation of 423 sq. ft. with that of Sri Partha Sarathi Dutta of 424 sq. ft. Accordingly the OPs amalgamated two flats and delivered the same to the complainant no. 1 and 2 jointly. However, since the OPs did not take proper measurement of the flat in question the complainants appointed Sri Manish Tikadar one L.B.S to examine the actual shortfall area. On measurement he found that the flat has covered area of 579 sq. ft., whereas the complainants were entitled to 424 + 423 = 847 sq. ft. Thus there is a shortfall of 266 sq. ft. covered area. The complainants have prayed that the equivalent price of the shortfall area, as per present market value be paid to them by the OPs.
The OP no. 4 Goutam Dutta received his share from the developers and due to urgent need of money sold it to the developers.
The complainants sent a legal notice on 09.01.2017 to the OPs asking for cash equivalent of shortfall area of flat. Since no heed was paid they filed this complaint case.
The OPs appeared and filed their W.V. They submitted that they handed over vacant peaceful possession of the owner’s allocation comprising the entire 2nd floor of the newly constructed G+3 building upon the said premises to the complainants on the 15th September, 2016. The complainants took possession of the flat and performed Grihaprabesh. However, 6 days later on 21st September, 2016 the complainants through their Advocate communicated to the Ops that they had revoked the registered Power of Attorney in favour of the OPs by executing a registered deed of cancellation dt. 20th September, 2016 in the office of ARA III Kolkata.
The complainants submitted that the cause of action of this case had arisen on 29.04.2014 when the development agreement had been signed. Cause of action further arose after 18 months from the date of sanctioned building plan and again on 09.01.2017 when the complainants sent a legal notice to the OPs demanding the shortfall area of the flat handed over to them.
The complainants have submitted a document stating market value to be Rs. 10,39,954/- of 266 sq. ft. area of the flat as determined by the Directorate of Registration and Stamp Revenue as on current date. The OP has also submitted a document stating a rate of Rs. 2970/- per sq. ft. of the same property issued by the same authority as on current date.
We have duly considered the submissions of Ld. Lawyers of both complainants and OPs. All materials on record including evidences, questionnaires and replies have been duly scrutinised. Now the points for decision are
- Whether the complainants are consumers
- Whether there is deficiency of service
- Whether the complainants are entitled to any relief
The complainants are consumers in terms of C.P. Act, 1986 as they have handed over their landed property to the OPs, by virtue of a development agreement, in lieu of delivery of a flat comprising covered area 424+423 = 847 sq. ft. But there was a negligence and deficiency in service of the OPs since they handed over a flat with a shortfall covered area of 266 sq. ft. and on a delayed date. The complainants are therefore entitled to relief as prayed for.
Hence it is ordered
The complaint case being no. 79 of 2017 therefore succeeds and is allowed on contest. The Opposite Parties no.1, 2 & 3 are hereby directed, jointly and severally
- To pay Rs. 7,90,020/- (Rs. 2970/- x 266 sq. ft. ) as cost of shortfall area of 266 sq. ft. of the flat handed over to the complainants by 60 days from this date along with simple interest @ 9% p.a. from date of handover i.e. 15.09.2016 till date of realisation.
- To pay Rs. 25,000/- as litigation costs by 60 days from this date.
If the Opposite Parties nos. 1, 2 & 3 fail to comply with this order within the stipulated period the complainants are at liberty to put this order into execution.
The CC/79/2017 is hereby disposed of. Copies to be provided to all parties free of cost.
