Minakshi Chakraborty,  Presiding Member.

 Brief facts of the case:     This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants that the property mentioned in the schedule below originally belonged to Sushil Chandra Ghosh and said Sushil Chandra Ghosh during his life time had executed and registered a deed of settlement being no. 337 for the year 1981 and the said deed was registered before the Sub Registrar, Srirampore and by which above named Sushil Chandra Ghosh had transferred the property as mentioned in the schedule below in favour of his four sons and after demise of Sushil Chandra Ghosh his four sons and Tapasi Ghosh became the absolute owners in respect of the property as mentioned in the schedule below and they have been owing and possessing the said property and Loton Chandra Ghosh died leaving behind his two daughters as his only legal heirs and they have become the absolute owners of the property and Ram Chandra Ghosh died leaving his wife namely Tapasi Ghosh and his married daughters namely Sanchita Biswas as his only legal heirs and they have became the absolute owners of the property as left by Ram Chandra Ghosh. The complainants are unable to look after their property as mentioned in the schedule below as settled by Sushil Chandra Ghosh and as such the complainants have decided to erect Multistoried building over the property as mentioned in the schedule below with the financial assistance of others and knowing the intention of the complainants the opposite parties proposed the complainants for raising multistoried building over the property with certain terms and conditions as have been settled and finalized and thereafter a development agreement was made between the parties and they have put their respective signatures thereon after going through the contents thereof. Said agreement was executed and registered before the office of the A.D.S.R., Chandannagore on the self same date i.e. on 26.6.2014 vide no. 1959 for the year 2014 and the complainants have agreed to sale certain property to the opposite parties except the property of the development agreement. On 26.6.2014 the complainants executed the deed of sale in respect of other property in favor of the opposite parties but the opposite parties in collusion with their henchmen have inserted the schedule property of the development agreement into the deed of sale surreptively though the complainants have got no right to execute and register the sale deed in respect of the property covered under the development agreement and the opposite parties have taken the charge of preparation of both the development agreement and deed of sale and the said deed of sale has been registered before the office of the A.D.S.R., Chandannagore on 30.6.2014 vide deed being no. 1995 for the year 2014. The opposite parties did not acquire any right and title. Interest of the complainants cannot be affected in anyway by the said deed of sale regarding the property as covered under the development agreement.

            The complainants have no intention to transfer the property as covered under the development agreement but the opposite parties surreptively abled to insert the said property into the deed of sale without the knowledge of the complainants and no transaction of money was made at the relevant time of execution and registration of the deed of sale between the opposite parties and the complainants came to learn about the transfer of property a few months ago when the opposite parties have declared themselves as the sole owners of the said property. On several occasions the complainants asked the opposite parties to follow the terms and conditions of the development agreement but the opposite parties did not pay any heed to such request.

            The complainants also state that as per caption “Consideration and Space Allocation / Area Entitlement at Para No. 11 of the Development Agreement the time of completion of the Multistoried Building has been written as 3(three) years from the date of commencement of Agreement and at present the Opposite Parties are trying to record their names in respect  of the property as covered under the Development Agreement declaring themselves as the absolute Owners thereof and which is very much illegal in the eye of law and for that reason the complainants have submitted written objection before the Local B.L. & LRO on 14/11/2007 and that the Opposite parties have failed to follow the terms and conditions as mentioned in the above referred Development Agreement and at present the Opposite Parties are trying to sale out the property as covered under the Development Agreement to the Third Party.

            The Complainants also state that on 26/05/2017 the complainants Nos. 1, 3 and 5 requested the Opposite Parties to comply the terms and conditions of the Development Agreement which yielded no fruitful results.

             Unwillingness on the part of the Opposite Parties have been compelled to institute the present case for the reliefs as have been stated in the petition of complaint.

Evidence:

The petitioners have filed evidence on affidavit and written notes of argument. The evidence on affidavit and written notes of argument of complainants are taken into consideration for passing final order.

It appears from the record that only OP nos. 5 & 6 initially made their appearance in this case but in spite of having opportunity for many a time they have failed to file written version giving opportunity to this commission to dispose of this case ex parte vide order no 18 dated 12.04.2022.

            Heard argument on behalf of the complainants at length.

            From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer ?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

        In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.

Issue no.2:

                 Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

It appears from the prayer portion of the petition for issue a direction upon the OPs so that they are bound to follow the terms and conditions of the registered development agreement no.1959 dated 26.06.2014. Paragraph 14 of the petition of complaint states about “consideration and space allocation/area entitlement as para 11 of the development agreement and time for completion of the multistoried building has been written as three years from the date of commencement of agreement.”

The agreement in the heading “terminology used in the above agreement” (para 4) states about owner’s allocation of space fully marbled residential unit measuring about 6000 sq.ft super built area which will necessarily consists of four numbers of residential flats each measuring 1500sq.ft on the 1^st floor and second floor along with commercial space on the ground floor each measuring 250 sq.ft covered area for four commercial spaces totaling together 1000 sq.ft .

After going through the brief notes of argument on behalf of the petitioners dated 12.04.2022 it appears that in its paragraph 10 have reiterated that the caption consideration and space allocation/area entitlement at para 11 of the development has not been complied with in spite of repeated requests by petitioner nos. 1,3 & 5.

It is pertinent to note that the building has not been completed even after three years without giving any thinking over the matter. However on admission by the Ops in their development agreement dated 26.06.2014 they are bound to make “owners allocation” as agreed upon by both the parties.

All these facts and circumstances lead this commission to hold that the Ops are bound to follow the terms and conditions laid down in the registered development agreement which is to be made complete within a year from date.

Even after making such an agreement the petitioners have been deprived from getting their specific portion till date which has definitely made the petitioners’ mental pain and agony as well as harassment.

Both the issues are thus disposed of.      

Hence,

Ordered

that the Complaint Case No. 184 of 2018 be and the same is allowed ex parte against the Opposite Parties.

The Opposite Parties do comply the terms and conditions of the development agreement dated 26.06.2014 relating to consideration of space allocation/ area entitlement of the development agreement within six months from date  failing which the petitioners are at liberty to take recourse to law.

The Opposite parties also do pay Rs. 20000/- for mental pain and agony and also Rs. 20000/ for mental harassment and Rs. 10000/- towards litigation cost. Such quantum of money in all three counts to be paid within 45 days from date failing which the complainants are given liberty to execute this order as per law.

The opposite parties are also directed to pay and/ or deposit Rs. 5000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly 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/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.