West Bengal

South 24 Parganas

CC/184/2015

Sri Shantimoy Ghatak, S/O Late Labanya Mohan Ghatak. - Complainant(s)

Versus

Sri Sujit Kumar Saha, S/O Dr. K.C. Saha. - Opp.Party(s)

29 Apr 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _184_ OF ___2015_

 

DATE OF FILING : 17.4.2015                     DATE OF PASSING JUDGEMENT:  29.4.2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Subrata Sarkar

                                                                             

COMPLAINANT        :    Sri Shantimoy Ghatak, s/o late Labanya Mohan Ghatak, ,111/2A, Selimpur Road, P.S. Lake, Kolkata – 31.

 

-VERSUS  -

 

O.P/O.Ps                            :     Sri Sujit Kumar Saha,s/o Dr. K.C. Saha of 52D/11/1A, Babubagan Lane, Dhakuria, Kolkata – 31 and also at 45B, Maharaja Tagore Road, Dhakuria, P.S Jadavpur, Kolkata – 31.

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

It is the short case of the complainant that he and his two brother and one sister wanted to demolish the existing two storied building by entering into an agreement for development on 3.5.2004 with the O.P and accordingly the said development agreement was executed, wherein the land owners will be allotted 45 per cent floor area in respect of both the flat and car parking space in the said premises and the developer will be allotted 55% floor area in respect of both the flat and ar parking space in the said premises . It has stated that land owner no.1 Shantimoy Ghatak  will be entitled to 48 percent, the land owner no.2 Kiranmoy Ghatak will be entitle to 19.5 percent, the land owner no.3 Anandamoy Ghatak will be entitled to 19.5 percent and the owner no.4 Smt. Aloka Sanyal will be entitled to 13 percent floor area both in floor and car parking space out of the said total 45 percent floor area in respect of the flat and car parking space according to the sanctioned plan sanctioned by the KMC authority . It has stated that developer agreed to construct the building in two phases and will hand over the land owners’ allocation within 30 months from the date of execution of the development agreement i.e. within the month of November, 2006 in completely finished and habitable condition. Further the developer agreed to provide the completion certificate to be issued by the KMC authority within three months from the completion of the project i.e. within  33 months from the date of execution of the agreement for development. It has further agreed that if the developer fails to hand over possession of the land owners’ allocation within the stipulated period, then the developer shall compensate to the tune of Rs.10,000/- only per month as liquidated damages to the land owners. It was further agreed by the developer to deposit a sum of Rs.13,00,000/- to the land owners as a security deposit which shall be refunded to the developer after handing over possession to the land owners in respect of their allocations without any interest thereon. Accordingly complainant being one of the land owners is entitled to 48% of the floor area both in flat and car parking space out of 45 % floor area both in flat and car parking space as per terms and conditions of the agreement for development dated 3.5.2004 . It has stated that developer allotted one flat in the second floor (eastern side) (Block-I) numbered as Flat no.2A measuring 1162 sq.ft super built up area along with one car parking space now numbered as 2A, measuring 150 sq.ft in the ground floor and one incomplete flat in the third floor (western side) (Block-II) now numbered as flat no.3D, measuring 1038 sq.ft super built up area along with one car parking space now numbered as 3D, measuring 120 sq.ft in the ground floor together with undivided proportionate share of the land underneath of the building with common areas and facilities of premises no.111/2A, Selimpur Road, P.S. Lake, Kolkata – 31 . It is the further case of the complainant that developer got the total sanctioned area og 10520 sq.ft at the premises and the land owners’ allocation is 4738 sq.ft  i.e. 45% and the developer’s allocation is 5786 sq.ft i.e. 55% out of the total sanctioned area. The O.P completed the construction of G+3 storied building comprising of self contained flats and car parking spaces but has failed to deliver the complainants’ allocati9on i.e. 48% floor area in respect of flat and car parking space till date. The complainant according to the sanctioned area is entitled to 48% floor area out of 45% allotted area which tantamount that the developer has deliberately failed and neglected to deliver complainant’s allocation to the complainant . Complainant several times requested the O.P verbally to deliver possession of 376 sq.ft which is less from his allocated portion in terms of the development agreement but all requests went in vein and ultimately complainant  sent lawyer’s letter, wherein the O.P responded the same through his Advocate and denied the same on some flimsy ground. It is the case of the complainant that he is entitled to get Rs.2500/- per month as liquidated damages from the O.P till delivery of possession for his allocated portion as per terms of the development agreement which amounts to Rs.4,90,000/- and Rs.20,000/- for harassment and day to day mental agony suffered by the complainant. Hence, this case for a direction to deliver 376 sq.ft out of total sanctioned floor area in t4eh flat and car parking space out of landowners allocation and to procure completion certificate / occupancy certificate at premises no.111/2A, Selimpur Road, P.S Lake, Kolkata – 31 , compensation of Rs.20,000/- , to pay Rs.4,90,000/-  towards liquidated damages at the rate of Rs.2500/- per month and other reliefs.

The O.P although appeared but did not contest the case ,for which, he was given several chances and thereafter last chance was given for filing written version along with cost of Rs.1000/- but O.P did not come to this Forum even after last chance and imposition of cost, that is why the case is proceeding in exparte.

Points for decision in this case is whether there is any deficiency in service on the part of the O.P or not.

                                                Decision with reasons

We have perused the development agreement and from page no.39 third schedule wherein we find that Shantimoy Ghatak will get 48% share and other land owners Kironmoy Ghatak will get 19.5%, Anandamoy Ghatak will get 19.5 % and Aloka Sanyal will get 13% share. The O.P being a developer is duty bound to comply the development agreement in toto. But for the reasons best known to the developer he did not comply the same. Accordingly it amounts to deficiency in service. Moreover, we have nothing to disbelieve the unchallenged claim of the complainant as well as documents ,for which, we find that complainant has been able to prove his case in exparte.

Hence,

                                                            Ordered

That the application under section 12 of the C.P Act, 1986 is allowed against the O.P in exparte.

The O.P is hereby directed to deliver 376 sq.ft  out of total sanctioned floor area in respect of flat and car parking space to the complainant at premise sno.111/2A, Selimpur Road, Kolkata – 31, P.S Lake.

The O.P is further directed to hand over the completion certificate /occupancy certificate in respect of the said premises in terms of the KMC building plan.

The O.P is further directed to pay compensation to the tune of Rs.20,000/- , liquidated damage Rsw.4,90,000/- in terms of the development agreement and litigation cost of Rs.1000/- to the complainant.

All the directions should be complied with within 30 days from this date, failing which, complainant is at liberty to execute the order through this Forum and in that event O.P has to pay penalty interest @10% p.a on the total sum from the date of this order till realization.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

                                                       Member                                                                President

Dictated and corrected by me

                               

                        President

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

 

                                                                        Ordered

That the application under section 12 of the C.P Act, 1986 is allowed against the O.P in exparte.

The O.P is hereby directed to deliver 376 sq.ft  out of total sanctioned floor area in respect of flat and car parking space to the complainant at premise sno.111/2A, Selimpur Road, Kolkata – 31, P.S Lake.

The O.P is further directed to hand over the completion certificate /occupancy certificate in respect of the said premises in terms of the KMC building plan.

The O.P is further directed to pay compensation to the tune of Rs.20,000/- , liquidated damage Rsw.4,90,000/- in terms of the development agreement and litigation cost of Rs.1000/- to the complainant.

All the directions should be complied with within 30 days from this date, failing which, complainant is at liberty to execute the order through this Forum and in that event O.P has to pay penalty interest @10% p.a on the total sum from the date of this order till realization.

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps through speed post.

                                                       Member                                                                President