Dated : 26 July, 2022

MR. AYAN  SINHA,                                        MEMBER

Final Order / Judgement

This is  a complaint U/S 35 of the  C.P. Act, 2019  made by the complainants alleging deficiency of service and Unfair Trade Practice against the OP Raysha Developers, a partnership firm, being represented by Indranil Roy Chowdhury (OP) and accordingly, prays for a direction upon OP to complete the flats as  per  Development Agreement, to handover the peaceful  possession with possession letter along with the completion certificate, to comply  with the mode of payment as per  agreement, to pay compensation of Rs.3,00,000/- and Rs.50,000/- as litigation costs.

FACTS IN BRIEF

            The petitioners are  the joint owners  of the premises at 3A/2, Mathur Babu Lane, P.O. & P.S. Tangra, KOl-15 who all entered into  a registered development agreement on 05.01.2016 with the OP developer  for construction of a G+3 storied residential building over the scheduled property at a sharing of 50:50 ratio after which  they shifted the complainants and their family members to a  different place with a monthly payment of Rs.7,000/- as shifting charges. Thereafter, one of the owners, namely Smt. Arati Bose, of the said development agreement expired on 23.12.2018 leaving behind her son, who is the complainant no. 1 in this case.

            As stated in the petition of complaint, that the construction work would be completed within 24 months with a maximum period extended up to 6 months. But the OP deliberately neglected to complete the same violating   the terms/mode as stated therein in the said agreement. The OP started his construction work on 15.04.2017 after obtaining sanctioned building plan No. 2016070173 dated 22.03.2017.

         The complainants sent legal notice on 10.04.2021 after a lapse of stipulated time for completion of the said construction work but the same was returned back  and, thereafter,  also the OP did not pay heed to them.

        Thus, being aggrieved with the illegal and negligent  acts,  deficiency  of service & unfair trade practice on the part of  OP, causing mental agony and depression to them, the complainants filed this instant case.

  Notice was served upon the OP Developer, who is being represented by Sri. Indranil Roy Chowdhury  but  he did not contest this case by filing written version and so the instant case proceeded  ex parte against the OP vide Order  dated 26.05.2022.

            Complainants also filed Evidence-in-Chief on Affidavit where they have reiterated  the facts as stated  in their petition  of  complainant.

            During the course of final hearing, the Ld. Advocate for the complainants  filed certain certified copy of  documents in support  of their contention.

POINTS FOR DETERMINATION

1. Whether the complainants  are consumers in terms of the C.P. Act 2019?
2. Whether there was any deficiency of service on the part of the OP as alleged by the complainants?
3. Whether the complainants  are  entitled to the  relief(s) as prayed for?

                                                                DECISION WITH REASONS

All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

On perusal of the copy of development agreement in the record and the certified copy of the same it is noticed that a registered development agreementwas executed on 05.01.2016 between the land-owners, namely, (1) Arati Bose, wife of late Dipak KumarBose (who later expired and leavingbehind her legal heir thatis complainant No. 1). (2) Diptendu Bose, son of late Dipak Kumar Bose (3) Dibyendu Bose, son of lateSarabindu Bose, (4) Krishnendu Bose, son of late Sarabindu Bose and the OP developer M/s. RayshaDeveloper represented by authorized signatory Indranil Roy Chowdhury wherethe land-owners had given exclusive grant to the developer for development oftheir land and construction of a G+3 storied building thereon at a sharing of 50:50 ratio.           

As per Section 2(7) (ii) of the C.P. Act, 2019,“Consumer” means any person who – “hires or avails of any service for a consideration  which has been paid or promised or partly paid and partly promised, or  under any system of deferred payment  and  includes any beneficiary of  such service other than the person who hires or avails of the service for consideration   paid or promised, or partly paid and partly promised, or  under  any system of deferred payment, when such services are  availed of  with the approval of the first mentioned person, but  does not include a person who avails of such service for any commercial purpose.”

            In the instant case also, the complainants have hired the service of the developer to develop their land and for a construction of G+3 storied building.  

So, there is no doubt that the complainants are consumers within the meaning of Section 2(7) (ii) of C.P. Act.

On further scrutiny of the development agreement dated 05.01.2016, in para of Developer’s Obligations, it is carefully noticed that the said developerwas to complete the proposed construction on thesaid premises within24 months from the date of agreementand ifnot completed theland-owners may extend further period of six months. The

Development agreement also states that the OP wasto pay Rs.7,000/- per month for shifting charges to the four land-owners. But the OP did not handover the peaceful possession of the flats to the complainants till the date of filing of this instant case nor paidRs.7,000/- to the complainants, except for a few months,evenafter issuance of two legal notices by the complainants to the OP developer.

Considering the facts and circumstances and the materials on record, we hold there is certainly deficiency of service on the part ofOP.

Since the allegations remain unchallenged and unrebutted, we opined that the complainants are entitled to the relief(s).

Complainants have also claimed for Rs.3,00,000/- ascompensation for mental harassment and agonyand Rs.50,000/- for cost of litigation which in our opinion, is exaggerated.

Therefore, we are of the view, if we direct theOP to pay compensation of Rs.60,000/- and litigation cost of Rs.5,000/- it would be just and appropriate.

In the end, the complainants have succeeded in proving their case.

Hence, it is

                                                                                               ORDERED

That the instant case be and the same is allowed ex parte against the OP.

OP is directed to complete the flats as perdevelopment agreement dated 05.01.2016 and handover the peaceful possession of the flats in habitable condition to the complainants as per conditionsstated in the agreement dt. 05.01.2016 withinthree months,from the date of this order.

OP is also directed to provide completion certificate and issue possession letter to the complainants at the time of handing over the possession.

OP is further directed to pay to the complainants Rs.60,000/- (sixty thousand only) as compensation along with cost of Rs.5,000/-(five thousand only).

If the aforesaid order is not complied by the OP within the above mentioned period, the complainants are at liberty to proceed in accordance with law.

Dictated and corrected by me.