DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 70 OF 2018
DATE OF FILING: 11.06.2018 DATE OF JUDGEMENT: 04.12.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
Member : Jagadish Ch. Barman
COMPLAINANT : Ananta Kumar Pal, S/o – Late Panchanan Pal, Residing at Swami Vivekanand Road (Ghosh Para), P.O. + P.S. – Canning, Dist. – South 24 Parganas, Pin Code – 743329.
O.P/O.Ps : Sri Ramkumar Mondal, @ Pratul Mondal, S/O – Sri Sashadhar Mondal, No. – 1, Dighirpar, P.O. & P.S. – Canning, Dist. – South 24 Parganas, Pin Code – 743329.
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JUDGMENT
Sri Ananta Kumar Kapri, President
Facts leading to the filing of the instant case may be epitomized as follows.
Complainant is absolute owner of the property described in schedule A to the complaint. One development agreement was struck on 19.10.2004 between the complainant and the O.P., developer and thereby the O.P. developer agreed to raise a G+2 storied building on A schedule property. Owner’s allocation was fixed to be 2400 sq.ft. super built-up covered area and also a shop room on the ground floor admeasuring 100 sq.ft. The O.P. has delivered only 700 sq.ft. covered area to the complainant on the second floor and also the shop room on the ground floor. But the rest portion of owner’s allocation i.e. 1700 sq.ft. covered area has not been delivered to the complainant and the construction has not also been completed on that portion of owner’s allocation. The construction of the building has not also been completed within 2 years of commencement of construction work in terms of the development agreement. According to the complainant, the O.P. agreed to pay rent at prevailing market price in case he failed to deliver possession to owner’s allocation to the complainant within agreed time. The said rent has not also been paid by the O.P. Notice after notices including legal notice have been served upon the O.P. by the complainant. But these notices have failed to arouse the O.P. from his habitual inertia. Now the complainant has filed the instant case praying for delivery of possession of 1700 sq.ft. with all completeness, compensation, rent etc. Hence, this case.
The O.P. has entered appearance in the case and has filed W/V denying all allegations against him by the complainant. According to him, there is no deficiency in service on his part as alleged by the complainant and therefore the case should be dismissed with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR CONSIDERATION
- Is the O.P. guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Evidence is led on affidavit by both the parties. Questionnaires, replies and BNAs filed by them are also kept in record after consideration.
DECISION WITH REASONS
Point no. 1 and 2:
Already heard the submission of Ld. Lawyers appearing for both the parties. Perused the petition of complaint, W/V and the evidences on record.
It is the grievance of the complainant that he is entitled to get 2400 sq.ft. super built-up and covered area in his owner’s allocation as per terms of the development agreement dated 19.10.2004 and that he has been provided a covered area of 700 sq.ft. on the second floor of the building. His further allegation is that he has not been provided with the rest portion of owner’s allocation i.e. 1700 sq.ft. covered area on the second floor and that no construction has yet been made upon that rest portion of owner’s allocation by the O.P. On the other hand, the complainant admits that a shop room measuring 100 sq.ft. has been provided to him on the ground floor by the O.P. The O.P. has not made out any positive case in his W/V to counter-act the allegation of the complainant. It implies and implies only that the allegation of the complainant carries a good amount of truth. The O.P. has filed BNA and it is admitted therein that as per report dated 06.06.2019 of the Commissioner namely S.K. Sarkar, the complainant has got a covered area of 787 sq.ft. on the second floor in terms of the development agreement. He still wants 1700 sq.ft. covered area and thereby the aggregate covered area, as demanded by the complainant, amounts to 2487 sq.ft. – which is 87 sq.ft. excess of the covered area the complainant is entitled to get in his owner’s allocation. The complainant will have to pay, as goes the submission of the O.P. in his BNA, for the said excess area i.e. 87 sq.ft.
In the context of the facts and circumstances of the case as canvassed on behalf of the parties and as pointed out above, it is to be seen whether the O.P. has acted properly in terms of the development agreement dated 19.10.2004. The Commissioner namely S.K. Sarkar was appointed in this case for ascertaining the area of the owner’s allocation of the complainant with specific reference to covered area and uncovered area therein. The report has been filed on 06.06.2019 and the same is kept in record. The report reveals that the covered area of the complainant is 787 sq.ft. and the uncovered area i.e. area on second floor without RCC roof is 1363 sq.ft. No construction is made upon this area of 1363 sq.ft. on the second floor by the O.P. in terms of agreement. It is clearly evident in Commissioner’s report which has not been challenged by the O.P. So, by the report of the Commissioner, it stands proved that the O.P. has not made the construction on the second floor of the building in terms of the agreement. The agreement provides that the owner’s allocation will comprise 2400 sq.ft. super built-up covered area. But, a large portion of the second floor i.e. 1363 sq.ft. has been lying without any roof and this establishes deficiency in service on the part of the O.P. Complainant is entitled to covered area of 1363 sq.ft. on the second floor and the O.P. will have to construct a roof upon this area of 1363 sq.ft. in order to fulfill the terms of the development agreement.
Further, the complainant has claimed rent for delayed delivery of the possession of the owner’s allocation to him by the O.P. On perusal of the development agreement, it is found that there is no such provision in the said agreement requiring the O.P. to pay any rent for delayed delivery of the possession of owner’s allocation. That apart, Ld. Lawyer for the complainant has not also brought any specific provision to this effect to the notice of the forum. Having considered all these things, we are of the opinion that the complaint is not entitled to recover any rent from the O.P. It is the fact that the complainant has undergone tremendous mental agony and harassment due to deficiency in service on the part of the O.P. and therefore the O.P. will have to pay the compensation on that count.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P. with a cost of Rs. 10,000/-.
The O.P. is directed to complete the construction on the rest portion of second floor falling into owner’s allocation i.e. 1363 sq.ft. covered area within 60 days of this order failing which the O.P. will have to pay a sum of Rs. 5,37,783/- as compensation (Rs. 3,37,783/- being the cost of construction as pointed out in Commissioner’s report and Rs. 2,00,000/- being compensation for mental agony and harassment of complainant), within a month thereafter. If the compensation amount as aforesaid i.e. Rs. 5,37,783/- is not paid within the said period, the said amount as well as the litigation cost amount will bear interest at the rate of 10% p.a. till full realization thereof.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree President
Member Member
Directed and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P. with a cost of Rs. 10,000/-.
The O.P. is directed to complete the construction on the rest portion of second floor falling into owner’s allocation i.e. 1363 sq.ft. covered area within 60 days of this order failing which the O.P. will have to pay a sum of Rs. 5,37,783/- as compensation (Rs. 3,37,783/- being the cost of construction as pointed out in Commissioner’s report and Rs. 2,00,000/- being compensation for mental agony and harassment of complainant), within a month thereafter. If the compensation amount as aforesaid i.e. Rs. 5,37,783/- is not paid within the said period, the said amount as well as the litigation cost amount will bear interest at the rate of 10% p.a. till full realization thereof.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
