F I N A L  O R D E R  /  J U D G E M E N T

Presented by: -

                   Shri Debasish Bandyopadhyay, President.

Brief fact of this case: - This case has been filed under section 35 of C.P. Act, 2019 by the complainants against the OPs stating that complainants are the owners and occupiers of all that piece and parcel of land measuring about 1(one) Cottah 9(nine) Chittaks 2(two) Sq.ft. together with a R. T. Shed structure measuring about 500(five hundred) Sq.ft. standing thereon, comprised within the municipal Holding No. 81, Sri Ram Dhang Road, P.O. Salkia, P.S. Malipanchghora, Howrah – 711 106.

That for the purpose of development of the said property for residential purpose Complainant No. 1 and Sova Rani Dey, now deceased, entered into an Agreement for Development with the OPs on 29/08/2017 subject to certain terms and conditions which was recorded in Book No. 1, Volume No. 0501 – 2017, being No. 050108917 in the year 2017 and was also registered in the office of the District Sub-Registrar, Howrah. On the self same date i.e. on 29/08/2017 Complainant No. 1 and Sova Rani Dey, now deceased, also executed and registered a Development Power of Attorney in favour of the OPs in terms of said Agreement for Development dated 29/08/2017 which was also recorded in Book No. 1, being No. 0501008925  in the year 2017 and the said Development Power of Attorney was also registered in the office of the District Sub-Registrar, Howrah.

Complainants further stated that Sova Rani Dey expired on 06/02/2021 leaving behind her son, Sri Manas Dey and daughter, Smt. Santana Jati being complainant Nos. 2 & 3 respectively as her legal heirs and representatives.

That on being empowered by the said Agreement for Development dated 29/08/2017 OPs started construction work of a multi-storied building over the Schedule ‘A’ mentioned property.

Complainants also stated that as per Clause 5.1 under Article-V of the said Development Agreement OPs were/are under obligation to allot the entire ground floor, 50% share on the 2^nd floor and 40% share starting from 3^rd to 5^th floor to the complainants within the said multi-storied building standing over the Schedule ‘A’ mentioned property. OPs have substantially constructed the entire ground floor of the said multi-storied building consisting of an incomplete 1(one) BHK flat and 2(two) shop rooms but they are avoiding to handover the possession to the complainants of one shop room out of 2(two) shop rooms on the ground floor and construction work of 2^nd to 4^th floor of the said building are still incomplete and OPs are intentionally avoiding to complete and handover the said complainants’ allocation. As per clause 6.1 of said Agreement for Development the OPs were/are under obligation to handover the complainants’ allocation within 18(eighteen) months from the date of starting of construction but OPs are intentionally avoiding/neglecting to handover the complainants’ allocation. It is also mentioned in Clause 6.1 of the said Agreement for Development that OPs were/are under obligation to complete the whole construction work of the said multi-storied building within 3(three) years from the date of starting of construction work but they are also intentionally avoiding/neglecting in doing so. As per Clause 14.1 of the said Agreement for Development OPs were/are under obligation to pay all the expenses of the temporary shifting of the complainants and the temporary shifting expenses of complainant No. 1 was 9,000/- per month for 48(forty eight) months but OPs have paid only for 18 (eighteen) months i.e. Rs.1,62,000/- only to the complainant No. 1. Similarly, the temporary shifting expenses of complainant Nos. 2 & 3 was 8,000/- per month for 48(forty eight) months but OPs have paid only for 02 (two) months to the complainant Nos. 2 & 3.

          Complainants also mentioned that the rooftop and boundary wall of the building standing over the Schedule ‘A’ mentioned property has been left in an incomplete condition by the OPs and OPs have also left the staircase of the building standing over the Schedule ‘A’ mentioned property in an incomplete condition and also have not yet installed any windows on very landings of the staircase of the said building and have not yet installed the main gate of the multi-storied building standing over the Schedule ‘A’ mentioned property. OPs have not yet started white washing of the exterior walls of the entire multi-storied building as mentioned before and OPs either willfully or deliberately violating the terms & conditions of the said Agreement for Development dated 29/08/2017.

          Complainants further mentioned that as per Clause 4.6 of the said Development Agreement the OPs were/are under obligation to handover the Owner’s allocation prior to disposing of Developer’s allocation in the said property. Complainants several times requested the OPs to complete the construction work of the said multi-storied building but OPs have not paid any heed to that effect and ultimately complainants sent a letter through their Ld. Advocate on 23/09/2022 under registered post with A/D with the request to complete the construction work including all the incomplete works of the said multi-storied building and also to clear the expenses of temporary shifting of the complainants but complainants received no response even after receiving the said letter.

          Under the above stated facts and circumstances and finding no other alternative way Complainants filed this case before this Commission praying for directions upon the OPs to complete the entire work of construction of the property as fully described in Schedule ‘A’ including other incomplete works of the said multi-storied building as per terms and conditions of Agreement for Development dated 29/08/2017 and also prayed before this Commission for direction upon the OPs to deliver and/or handover 1(one) shop room on the ground floor, 50% share on the 2^nd floor and 40% share starting from 3^rd to 5^th floor of the said multi-storied building and complainants also prayed before this Commission for also direction upon the OPs to pay remaining temporary shifting expenses to the Complainant No. 1 amounting to Rs.1,62,000/- only and Complainant Nos. 2 & 3 amounting to Rs.3,68,000/- only together with staturory interest and complainants also prayed before this Commission to pay to the complainants a sum of Rs.12,00,000/- only as compensation for causing mental harassment and agony and complainants also prayed for before this Commission to pay to the complainants a sum of Rs.5,00,000/- only as litigation cost.

Defense Case: -    Notice of this case was duly served upon the OPs. But, OPs did not appear and no W/V has been filed from the end of the OPs from the date of delivery of notice, as such, the instant case proceeded ex-parte against the OPs.

Issue(s) / Point(s) for Consideration

          On the basis of the pleading of the of the Ld. Advocate of the Complainant, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following point(s) for consideration: -

1. Whether the complainants are the consumer to the OPs or not?
2. Whether this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any unfair trade practice on the part of the OPs or there is any deficiency in service on the part of the OPs.
4. Are the complainants entitled to get relief/reliefs as prayed for?

Evidence on record

          Complainant filed evidence supported by affidavit and also filed BNA in support of their case.

          Whereas OPs did not appear in the instant case in spite of receiving notice and no other steps has been taken from the end of the OPs.

DECISION WITH REASON

          The points of consideration Nos. 1 & 2 are interlinked and/or interconnected with each other and so these two points of consideration are clubbed together and taken up for discussion jointly.

          Regarding these two points of consideration, the vital question which has been cropped up is whether the complainants are the consumer under the Ops or not?

          Relating to this matter this District Commission after going through the materials of this case record finds that the complainants entered into a Development Agreement with the Ops in respect of the suit property and also executed and registered Power of Attorney in favour of the Ops on 29/08/2017 and as per Development Agreement the complainants are entitled to get the entire ground floor, 50% share of 2^nd floor and 40% share in respect of the 3^rd to 5^th floor of the suit property which has been described as “A” schedule property. All these factors are clearly reflecting that the complainants are the consumers under the Ops.

On close scrutiny from the materials on record, it reveals that the complainants are consumer under Section 2(i)(d)(i)(ii) of the C.P.Act, 1986 to the OPs.

          The points of consideration No. 2 is related with the question of jurisdiction issue i.e. whether this Commission has territorial/pecuniary jurisdictioin to entertain and try this case or not?

Complainants appear to be the resident of Howrah whereas OPs are also having their residences/offices in the district of Howrah & Kolkata. Considering the nature of the case and prayers of the complainants it straightway gives clear signal that pecuniary value of the case is within Rs.20,00,000/- i.e. within the limit of this Commission (formerly Forum). So, this Commission (formerly Forum) has territorial/pecuniary jurisdiction to entertain and try this case.

          Relating to these issues the caution of action point and limitation point are also vital issues for discussion. Over this matter this District Commission after making scrutiny of the pleadings of the parties finds that the complainant instituted this complaint case within time and the cause of action for filing this case has been continued. Moreover, this case has been filed by the complainants within stipulated period of time and according to Section 24A of Consumer Protection Act, 1986 this case is not barred by limitation.

          All the above noted factors are depicting that this complaint case is maintainable either on facts or on the point of law and this District Commission has the pecuniary and territorial jurisdiction to entertain and try this case and it is also revealed that the complainants are the consumers under the Ops. Thus, all the above noted two points of consideration are decided in favour of the complainants’ side.

          In this instant case the points of consideration No. 3 has been framed on the question whether there is any unfair trade practice on the part of the Ops or there is any deficiency of service on the part of the Ops or not? Relating to points of consideration No. 4 this District Commission finds that the question has been raised over the issue whether complainants are entitled to get relief as prayed for or not?

          In support of their case complainants filed evidence supported by affidavit and also filed BNA.

          Whereas OP in spite of receiving notice of the instant case did not appear and no other steps has been taken from the end of the OPs.

          For the purpose of arriving at just and proper decision in respect of the above noted two points of consideration this District Commission after going through the evidence on affidavit filed by the complainant side finds that the evidence on affidavit which has been filed by the complainant is nothing but the replica of the complaint petition. It has already been pointed out that the Ops in this case neither appeared nor filed any W/V or evidence on affidavit. This matter is clearly indicating that the evidence given by the complainant side remains unchallenged and/or uncontroverted and it has not been shakened in any way. This District Commission finds no reason to disbelieve the unchallenged and/or uncontroverted testimony of the complainant side. In other words, it can be clearly upheld that the complainant side by way of adducing evidence and filing documents has proved their case in respect of points of consideration Nos. 3 & 4. It is admitted fact that one Development Agreement was executed in between complainants and Ops on 29/08/2017and on the same day the complainant No. 1 and one Sova Rani Dey also executed and registered a Development Power of Attorney in favour of the Ops. On parallel reading of the evidence given by the complainants side with the documents filed by the complainants side it is transpired that the Ops have not carried out/discharge their duties in respect of terms and conditions which have been depicted in Development Agreement dated 29/08/2017. All these factors are clearly reflecting that the complainants are entitled to get relief(s) which has/have been sought for in this complaint case and it is also crystal clear that the Ops have committed unfair trade practice and deficiency of service by violating the terms and conditions of the Development Agreement dated 29/08/2017.

          The cumulative consideration of the above noted discussion goes to show that the complainants are entitled to get relief(s) in this case and also entitled to get relief(s) in support of the prayer highlighted in the complaint petition.

          In the result, it is accordingly,

O R D E R E D

          That this Complaint Case No. 318/2022 be and the same is degreed ex-parte against the Ops of this case.

          It is held that the complainants are entitled to get the degree directing the Ops to deliver and/or handover one shop room in the ground floor and 50% share on the 2^nd floor and 40% share in respect of 3^rd to 5^th floor of the “A” schedule property. It is also held that the Complainant No. 1 is entitled to get shifting charges of Rs.1,62,000/- along with interest at the rate of 9% per annum from the date of filing of this case and Complainant Nos. 2 & 3 are also entitled to get shifting charges of Rs.3,68,000/- along with interest at the rate of 9% per annum from the date of filing of this case.

          Ops are directed to comply and/or abide by the above noted directions within 45(forty five) days from the date of this judgment/final order otherwise the complainants are given liberty to execute this order as per law.

          In the event of non-compliance and/or failure to discharge the above noted directions by the Ops they would pay and/or deposit Rs.10,000/- in the Consumer Legal Aid Account of D.C.D.R.C., Howrah which is to be utilized for the purpose of poor litigant public.

Let a plain copy of this order be supplied free of cost to the parties/Ld. Advocates/Agents on record by hand under proper acknowledgement/send by ordinary post for information and necessary action.

The final order will be available in the following website        Dictated & Corrected by me

(Shri Debasish Kr. Bandyopadhyay)

       President, DCDRC, Howrah