Judgment : Dt.21.2.2017
This is a complaint made by one Smt. Maya Das, wife of Sri Srikanta Das, residing at 21, Baburam Ghosh Road, P.S.- Regent Park, Kolkata-700 040 against Sri Moloy Mitra, son of Late Tarapada Mitra, 134, Sodepur, 1st Lane, P.O. & P.S.- Haridevpur, Kolkata-700 082, proprietor of M.M. Construction having its registered office at 34, Sodepur, 2nd Lane, P.O. & P.S.-Haridevpur, Kolkata-700 082, praying for handing over peaceful possession of one flat on the top floor measuring more or less 400 sq.ft. super built up area and one car parking space measuring more or less 170 sq.ft. on the ground floor of the said multi storied building and also a direction to OP to pay Rs.80,000/- for making delay and another Rs.20,000/- for litigation cost.
Facts in brief are that Complainant is the absolute owner in respect of the land measuring more or less 2 cottahs 3 chittkas and 33 sq.ft. situated at Saiyadpur, J. L. No.12, R.S. No.34, Touzi No.8, Dag No.223 under C. S. Khatian No.23, R.S.Khatian No.258, being K.M.C. premises No.186, Saiyed Abdul Rahaman Road, P.S.-Thakurpukur, Kolkata-700 082.
Complainant entered into a development agreement on 26.7.2017 jointly with Sri Anjan Bandopadhyay who is the owner of the adjacent plot of land with the OP being the developer for construction of a multi-storied building on the amalgamated land and the agreement was endorsed on 28.7.2008 before Notary, Alipore.
As per the said development agreement dt.26.7.2008 it was agreed between Complainant and OP that the Complainant shall be liable to get one flat on the first floor, east side measuring more or less 850 sq.ft. built up area, one flat on the top floor measuring more or less 400 sq.ft. super built up area and one covered garage measuring 170 sq.ft. on the ground floor and one car parking space measuring more or less 170 sq.ft. which was agreed between the parties that the said allocation of the Complainant would be handed over within 24 months from the date of sanction of the building plan.
After sanction of the building plan on 27.3.2010 the OP constructed a multi storied building on the said plot of land and did not hand over one flat on the top floor measuring about 400 sq.ft. and one car parking space. The flat is complete, but due to negligence and unfair trade practice of the OP, Complainant could not get the possession of the flat. Complainant requested the OP on many occasions for handing over the flat in dispute but, OP could not do the same. Further, Complainant submits that OP is trying to alienate the said flat to a third party. Finding no other alternative Complainant issued letter to OP for handing over the flat. Said letter was served upon the OP, but the flat was not handed over. So, Complainant filed this complaint.
On the basis of the above facts, complaint was admitted and notices were served upon the OP. But OP did not contest the complaint and so it was heard ex-parte.
Decision with reasons
Complainant filed affidavit-in-chief wherein he has reiterated the facts mentioned in the complaint petition. Complainant has also filed written argument.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for in the complaint petition.
A Xerox copy of the development agreement has been filed. On perusal of this development agreement, it appears that owners’ allocation is one flat in the first floor measuring 850 sq.ft. built up area, one flat on the top floor measuring 400 sq.ft. super built up area, one covered garage of 170 sq.ft. super built up area at the ground floor.
This development agreement has been signed by the OP. Since OP has not challenged and rebutted the allegation made in the complaint petition, it is clear that Complainant is entitled to possession of one flat with car parking space as mentioned in the prayer 1.
Complainant has also prayed for a direction upon the OP a damage of Rs.80,000/- for making delay and harassment.
In this regard, we are of the view that if compensation of Rs.50,000/- and litigation cost of Rs.10,000/- is allowed the object of the justice would be served.
Hence,
ordered
CC/471/2016 and the same is allowed ex-parte in part. OP is directed to hand over the possession of the flat and car parking space as mentioned in prayer 1 of the complaint petition to the Complainant within 4 months of this order. In addition, OP is also directed to pay Rs.60,000/- as compensation and litigation cost.
