Hon’ble Mrs. Soma Bhattacharjee, Member
CC/771/2019 has been filed by Tripti Bose and others against Debabrata Sarkar and others u/s 12 C.P. Act, 1986.
The complaint case, to state in short is that, the complainants are the sole and absolute owners of all that piece and parcel of bastu land measuring about 5 cottahs 10 chittaks along with old structures standing on the said land lying and situated at Mouza – Shyampur, J.L. No. 46, R.S. Dag No. 810, L.R Dag No. 1014, R.S. Khatian No. 236, and L.R. Khatian Nos. 1350, 1277, 759, 1011, 529, 1181 being holding No. B2 – 29/ 87/ 1, 2, 3, 4 Setna Road also known as Sarkapara, P.S. Maheshtala, under Maheshtala Municipality in Ward No. 35, Kolkata – 700137 in the District of South 24 Parganas.
The property originally belonged to one Nut Behari Bose, since deceased, the predecessor in interest of the complainants. That the said Nut Behari Bose while seized and possessed of the said property died intestate leaving behind Sukumar Bose, Santosh Bose, Shakti Bose, Pushpa Ghosh, Mukti Bose (expunged as deceased), Tripti Bose. That accordingly they inherited the property jointly. Smt. Bimala Bose, the wife of the Nut Behari Bose predeceased her husband Nut Behari Bose.
The Sukumar Bose died intestate as bachelor on 05.07.2012, Sakti Bose died as bachelor on 22.10.2011. Santosh Kumar Bose died intestate on 21.10.2010 leaving behind his wife Shefali Bose and daughter Sutapa Bose. Thus the property devolved upon Smt. Puspa Ghosh, Mukti Bose (expunged as deceased), Tripti Bose, all daughters of Nut Behari Bose and legal heirs of Santosh Kumar Bose, namely Shefali Bose and Sutapa Bose became owners of the said property.
The owners / complainants with intention to develop their said property, entered into an agreement for development dated 7th March, 2014 with the opposite parties (being the developers in the local area). That accordingly, on negotiation, terms and conditions were settled and the complainants and the Developers/ Opposite Parties have entered into the said Agreement. Salient terms and conditions are as follows:
i) That owners / complainants will get 33% of the built up area from 1st and 2nd floor on Southern and Eastern side, each flat will be 800 sq. ft. covered area and one shop room on the ground floor measuring 150 sq. ft. (15 X 10) carpet area as the owners’ allocation.
ii) That the Developers / Opposite Parties shall at the first instance hand over the owners’ allocation in finished and complete condition.
iii) That the developers / opposite party will pay to the owners a sum of Rs. 15,00,000/- only at the time of sigining of the agreement.
iv) That the building shall mean and include modern multi- storied building G+III storied on the said land. In case in future the building is raised upto G+IV storied, in that event, the owners allocation shall be increased proportionately.
v) That the developer shall complete the project of construction within a period of 20 months from the date of agreement or 18 months from the date of sanction of the building plan, whichever be earlier.
vi) That the developer shall arrange for alternative accommodation during the continuance of the construction of the new building on the said property.
vii) The owners will get only two flats measuring 800 sq. ft. each and said shop measuring 150 sq. ft. totalling 1750 sq. ft. The balance F.A.R. out of 33% shall be purchased by the developers at the rate of Rs. 1800/- only per sq. ft. The said advance amount of Rs. 15,00,000/- shall be adjusted against the owners allocation 33%. The owner Nos. 1 and 2 Tripti Bose and Mukti Bose (deceased) / complainants jointly got one flat and the owner / complainant no. 4 will get one flat. The shop room shall be allotted to the daughter of the complainant no. 4 the complainant no. 5 Sutapa Bose, along with other common facilities.
viii) That the developers / Opposite Parties will pay Rs. 7,00,000/- only to the complainants at the time of casting of the roof of the building and will be adjusted against 33% of the owner’s allocation.
On the said specific terms and conditions and all other allied terms and conditions the complainants as owners and the developers have entered into the said agreement, dated 7th March, 2014 duly registered in the office of District Sub- Registrar – II, Alipore in Book No. 1, volume No. 4 pages 9015 to 9080 being no. 02794 for the year 2014.
Simultaneously with the execution and registration of the said Development Agreement dated 07.03.2014, the owners have further executed a General Power of Attorney dated 07.03.2014 duly registered in the office of dated 7th March, 2014 duly registered in the office of District Sub Registrar – II Alipore in Book No. I, Volume No. 4, pages 9061 to 9103 being No. 02795 for the year 2014. Thereby the complainants have duly appointed, nominated and constituted the developers / opposite parties as their constituted Attorney to do, perform and execute the acts, deeds and things in respect of the said property i.e. to work manage control and supervise the management and all and administration of the suit property and to develop the said property by appointment of engineers, architects etc.
The complainants being dissatisfied with the failure of the OPs to deliver services were compelled to file CC/771/2019.
Cause of action in this case arose on 07.03.2016 i.e. two years from the date of agreement and again when demand notice was sent on 04.03.2019 to OPs 1, 2 and 3 by speed post. Since the OPs have still not paid the due amount to the complainant the cause of action is continuing.
The complainants have prayed for the following relief. As per the development agreement, they will get 33% of plan of built up area and also get two flats on 1st & 2nd floor having 800 sq. ft. covered area each, one shop room measuring more or less 150 sq. ft. (15ft. x 10ft. carpet area). The developer paid Rs. 15,00,000/- (Fifteen lakhs only) and Rs. 4,00,000/- (Rupees four lakhs) only in total Rs. 19,00,000/- (Rupees Nineteen lakhs) only to them. As per development agreement and it is also mentioned that total area is 10,534 sq. ft. including stair case 640 sq. ft., so the owner allocation (i.e. 33%) of total is 3,275 sq. ft and as owners they got two flats measuring more or less 706 sq. ft. and 909 sq. ft. and one shop room 147 sq. ft. and it is also mentioned that as per agreement the developer did not handover flats in proper place and they are entitled to get amount of balance area 1600 sq. ft. x Rs. 1800.00 = Rs. 28,80,000/- (Twenty eight lakhs eighty thousand only). But the Developer paid only Rs. 19,00,000/- (Rupees Nineteen lakhs) only, so balance amount Rs. 9,80,000/- (Nine lakhs eighty thousand only) is still due as per agreement.
The complainants have prayed for entire balance amount of Rs. 9,80,000/- + interest @ 8 percent P.A. + Rs. 6,00,000/- for mental agony as compensation.
After CC/771/2019 was filed and notices were duly served upon the OPs they appeared and filed W.V. However, since the OPs did not file evidence on affidavit the case proceeded ex parte against them. On evaluating the complaint petition, the evidences and other material documents filed by the complainants it transpires that the complainants are consumers and the OPs have failed to fulfil their obligations in terms of the agreement dt. 07.03.2014. The developers have defaulted in delivery of service and are negligent as per provisions of C.P. Act, 1986.
It is ordered
The CC/771/2019 succeeds and is allowed ex parte.
i) The Opposite Parties nos. 1 to 3 are jointly and severally directed to pay to the complainants an amount of Rs. 9,80,000/- along with simple interest @8% p.a. from the date of sanction of building plan by 2 months of this order.
ii) The Opposite Parties nos. 1 to 3 are jointly and severally directed to pay a litigation cost of Rs. 20,000/- by 2 months of the date of this order.
If the Opposite Parties fail to comply with this order, the complainants will be at liberty to put this order into execution.
CC/771/2019 is disposed of accordingly.
Free certified copies be delivered to all parties.
