Judgment : Dt.16.6.2017

Mrs. Balaka Chatterjee, Member

            This petition of complaint is filed under Section 12 of C.P.Act. by – (1) Smt. Dolly Kundu, (2) Smt. Jolly Routh, (3) Smt. Anjana Ganguli, (4) Smt. Archana Bhattacharjee, (5) Sri Tarun Kumar Routh and (6) Smt. Laxmi Routh, alleging deficiency in service on the part of OP Sri Nababrata Ghosh.

            Case of the complaint in brief is that the predecessor in interest of the Complainants namely Arun Kumar Rout was the absolute owner in respect of a piece of land at Mouza – Baderaipur, P.s.-Jadavpur, J.L.No. 34, C.S. Plot No.521(P) and 522(P), EP No.189, Dist.- South 24-Parganas, having the postal address 63E/49A, Raja S. C. Mullick Road, P.S.-Jadavpur, Kolkata-700 092, who entered into a development agreement on 14.4.2000 with the developer namely Nababrata Ghosh, the Opposite Party herein. It is stated by the Complainants that in accordance with term of the said agreement the developer has constructed entire ground floor, first floor, 2^nd floor & 3^rd floor of the said building but the finishing works are y et to be done and therefore the building is remaining in incomplete state to some extent. The Complainants have specifically stated that the building is remaining incomplete in respect of which points they have stated in paragraph-9 of petition of complaint which are as follows –

1. Damage roof to be repaired,

2. Parapit wall on the roof to be constructed,

3. Over head water tank to be constructed,

4. Stair case/stair roof to be constructed,

5. Stair case, grill, to be completed,

6. Inside plaster, to be completed,

7. Out side plaster work to be completed,

8. Water connection to be completed,

9. Drainage connection, to be completed,

10. Septic tank connection to be completed,

11. Marble flooring finishing of the floor of the flat to be completed,

12. 440 volts electric connection new service line to be installed as per the rules of the CESC,

13. Boundary wall to be constructed,

14. Main entrance gate to be constructed,

15. Plaster of Paris to be completed,

16. Electrical wiring to be completed,

17. Color of the building to be completed.

It is further alleged that the developer has failed and neglected to handover possession of the flat in the 2^nd floor though the Complainants were compelled to take possession on the 2^nd floor in unfinished condition since the developer failed to provide monthly rent @ Rs.3,000/-p.m. as per terms of the development agreement till handing over the possession of the flat. It is further stated that the Complainants are entitled to get Rs.5,000/- p.m. from the developer from January, 2001 and in total Rs.3,60,000/- for six years. It is further alleged that the developer failed to deliver possession of the rooms measuring about 240 sq.ft. built up area in the ground floor in favour of the Complainant in terms of the development agreement dt.14.4.2000 and also to provide sanction building plan and completion certificate issued by the KMC in favour of the Complainants. Accordingly, the Complainants have prayed for direction upon the developer to –

1. Complete the building in terms of the development agreement as per the schedule of the complain application within 2 months;

2. Hand over the possession of the covered rooms measuring 240 square feet at the ground floor of the said newly constructed building in favour of the complainants in terms of the development agreement;

3. Provide the possession letter in respect of the flat and covered rooms at the ground floor to the complainants;

4. Provide the copy of the sanction building plan to the complainants;

5. Provide the completion certificate issued by the KMC in favour of the complainants;

6. Pay Rs.3,00,000/- to the complainants as compensation and due to extreme suffering from their mental pain and agony;

7. Pay Rs.3,60,000/- to the complainants as rent in terms of the development agreement;

8. Cost of litigation Rs.20,000/-.

            The Complainants annexed the development agreement dt.14.4.2000 to the petition of complaint.

            The Opposite Parties appeared and contested the case by filing written version stating inter alia that the developer was ready and willing to complete the building in terms of the development agreement but due to non-cooperation from the landowner she could not complete the building in terms of development agreement since the landowners not allowing the men and agents and labourers to enter into the building.   

            The developer has admitted that the works/items which are already mentioned under the paragraph No.9 of petition of complaint remaining incomplete and prays for 3 months time to complete the same. It is further stated that the developer has handed over possession of the flat and the shop room to the landowners and, therefore, the landowners are not entitled to get any amount towards rent from the developer. Accordingly, the developer has prayed for dismissal of the complaint petition with permission to the developer to complete the building as per list of paragraph 9 of the petition of complaint.

            The Complainants have adopted the petition of complaint as evidence on affidavit which has been accepted by this Forum.

 Points for determination

1. Is there deficiency in service on the part of the OP?

2. Are Complainants entitled to the relief as prayed for?

Decision with reasons

             Both points are taken up together for the same of brevity of discussion and decision.

             It is evident from the Development Agreement dt.14.04.2000 executed by and between the Opposite Party developer and predecessor-in-interest of the Complainants that the developer was to deliver the owners’ allocation portion within 18 months from the date of inception of the construction work in the said premises. It is further evident from the said document that the OP Developer was to deliver entire second floor of the multistoried building and two shop-rooms having 240 sq.ft. built up area in total at ground floor of the said building as to owner’s allocation. The specific allegation of the Complainants that the OP Developer did not complete the second floor at all and they have given a list of incomplete work in paragraph 9 of the petition of complaint and did not deliver possession of the shop rooms on the ground floor within the owner’s allocation and also did not pays the agreed amount of rent to the Complainants for six years.

              As regards the incomplete works in the building in question, the OP developer has admitted the allegation in toto as made out in the paragraph 9 of the petition of complaint and undertakes by swearing affidavit to complete the same within a spell of three months. This candid admission of the Developer regarding incomplete works and her undertaking to complete the same within three months really impresses us and we think she should get a chance to complete the same without imposing any burden of compensation upon her.

              As regards non-delivery of possession of shop rooms it is observed that no authentic document such as Advocate Commissioner report has not been brought forward before us so that the Complainants could be able to substantiate their allegation.

             As regards the payment of rent the Complainants failed to substantiate the point for delayed delivery of possession by the Developer so that a direction might be given to her to pay rent for accommodation for delayed period.

              The Developer to provide a copy of sanction building plan since she has already got it but it is alleged by the Complainants and admitted by the Developer that the building has not been completed. Therefore, the direction is given upon the developer to obtain the same and to hand over the copy of the same to the Complainants by one month after completion of the incomplete works remaining in respect of the building in question.

              We direct to pay the developer Rs.7,500/- towards litigation cost to the Complainant.

              Both points are answered accordingly.

              In the result the petition of complaint succeeds.

Hence,

ordered

               That CC/124/2017 is allowed in part on contest. The OP is directed to complete the incomplete work as mentioned in the paragraph 9 of petition of complaint, which are as follows:-

1. Damage roof to be repaired,

2. Parapit wall on the roof to be constructed,

3. Over head water tank to be constructed,

4. Stair case/stair roof to be constructed,

5. Stair case, grill, to be completed,

6. Inside plaster, to be completed,

7. Out side plaster work to be completed,

8. Water connection to be completed,

9. Drainage connection, to be completed,

10. Septic tank connection to be completed,

11. Marble flooring finishing of the floor of the flat to be completed,

12. 440 volts electric connection new service line to be installed as per the rules of the CESC,

13. Boundary wall to be constructed,

14. Main entrance gate to be constructed,

15. Plaster of Paris to be completed,

16. Electrical wiring to be completed,

17. Color of the building to be completed,

within four months from the date of this order.

              The OP is further directed to pay Rs.7,500/- as litigation cost to the Complainant within aforesaid period.

              If the Opposite Party Developer is found reluctant to comply the direction of this Forum which is passed on the basis of her undertaking the Complainants may file an execution application for exercising their rights and in that case the Opposite Party Developer shall pay Rs.10,00,000/- to the Complainants so that the Complainants may complete the incomplete works from their own by spending that amount.