West Bengal

South 24 Parganas

CC/440/2015

Smt. Shyamasrita De, Wife of Sri Parthasarathi De.and daughter - Complainant(s)

Versus

Sri Susanta Kumar Das, S/O Lt. Surendra Nath Das. - Opp.Party(s)

Rossenara Khatoon.

09 Jun 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027 C.C. CASE NO.  440 OF 2015   DATE OF FILING : 1.10.2015 DATE OF PASSING JUDGEMENT:_9.6.2016_ Present : Member(s) : Smt. Sharmi Basu & Subrata Sarker COMPLAINANT : Smt. Shyamsrita De,w/o Parthasarathi De and d/o of Sawapan De of 109, East Road, P.S. Purba Jaeavpur, Now Survey Park, Kol-75. - VERSUS - O.P/O.Ps : Sri Susanta Kumar Das, s/o late Surendra Nath Das of 1/18, Prince Golam Mohammad Shah Road, P.S. Jadavpur, Kolkata – 95.

 J U D G E M E N T Smt. Sharmi Basu, Member The petition of complaint made under section 12 of the C.P Act ,1986 has been filed by the complainant Smt. Shyamasrita De against the O.Ps on the ground of deficiency in service on the part of the O.P . It is the short case of the complainant that she is the owner of land of 1 kotta 05 chittak 23 sq.ft situated at Mouza Dhakuria of premises no.19/1C/1, Jheel Road, Kolkata – 31 . With an intention to develop a building at her premises complainant into a development agreement with the O.P on 28th July 2011 and as per terms of the development agreement complainant should be allotted entire first floor and one covered garage on the ground floor and construction should be completed within 18 months from the date of vacant possession. But the developer did not deliver the possession of the entire first floor and one covered garage on the ground floor to the owner/complainant in her owner’s allocation till the date of hearing of the instant case . Several requests followed by lawyer’s notice dated 16.7.2015 yielded no result . Hence, this case praying for completion of the entire first floor and one garage on the ground floor at the said premises , compensation of Rs.50,000/- , cost etc. Inspite of serving summon the O.P did not appear and did not contest the case, for which, case is running in exparte against the O.P. Points for Decision 1. Whether the complainant is a Consumer or not. 2. Whether there is any deficiency in service on the part of the O.Ps or not. 3. Whether the complainant is eligible to get relief as prayed for partly or fully. Decision with reasons All the points are taken together as they are interlinked. It is to be mentioned here that though the notice has duly been served upon the O.P but he has not appeared before this Forum and for that reason case has proceeded in exparte against the O.P and all the documents brought before this Forum by the complainant being unchallenged piece of testimony are considered as true. In the instant case from the record in its entirety it is crystal clear that the complainant entered into a development agreement with the O.P on 28.7.2011 , being the land owners, for development of the said premises on the terms and conditions made therein. We have found no reason to disbelieve the submission of the complainant that till the date of hearing of argument the O.P developer has not handed over possession of the flat in question i.e the entire first floor and one covered garage at the ground floor at the said premises. To decide whether the complainant is a consumer or not it is highlighted that Hon’ble National Commission has already observed that Land owners are “Consumers” of developer when Land Owners enter into a development agreement with him for construction of a building and developer would sale developer’s allocation. It is also needed to be mentioned that in the instant case land of the land owners is considered as “consideration”. Therefore, in light of the above discussion we have no hesitation to hold that complainant is a consumer. It is settled principle of Law that developer when entered into a development agreement with any intending consumer , he is duty bound to deliver possession of that property after completion of the same in all respect but in the instant case the O.P has miserably failed to deliver possession of the flat i.e. entire first floor and on covered garage space. This inaction of the O.P amounts to deficiency in service towards the complainant/consumer and he is duty bound to deliver possession of the aforesaid property and also to aptly compensate due to mental agony and harassment suffered by the complainant due to aforesaid deficiency in service of the O.P , developer. Thus the case succeeds. Hence, Ordered That the case be and the same is allowed against the O.P in exparte with cost. The O.P is directed to deliver possession of the entire first floor along one covered garage on the ground floor at premises no.19/1C/1, Jheel Road, P.S. Jadavpur, Kolkata- 31 as per development agreement to the complainant . The O.P is also directed to pay compensation to the tune of Rs.25000/- and cost of Rs.5000/- to the complainant . All the orders should be complied with within 30 days from the date of this order, failing which interest will carry @9% p.a on the total amounts from the date of default till its realization and compliance. Let a plain copy of judgment be supplied to the parties free of cost as per rule. Member Member Dictated and corrected by me Member The judgement in separate sheet is ready and is delivered in open Forum. As it is , Ordered That the case be and the same is allowed against the O.P in exparte with cost. The O.P is directed to deliver possession of the entire first floor along one covered garage on the ground floor at premises no.19/1C/1, Jheel Road, P.S. Jadavpur, Kolkata- 31 as per development agreement to the complainant . The O.P is also directed to pay compensation to the tune of Rs.25000/- and cost of Rs.5000/- to the complainant . All the orders should be complied with within 30 days from the date of this order, failing which interest will carry @9% p.a on the total amounts from the date of default till its realization and compliance. Let a plain copy of judgment be supplied to the parties free of cost as per rule. Member Member