Judgement dt. 10.03.2017

          This is a complaint made by Sri Swapan Kumar Bhowmick against Tarun Halder praying for a direction upon OP to complete the construction of proposed building in all respect, and making it habitable and deliver possession of owner’s allocation and a direction to pay Rs. 300000/- as interest and Rs. 500000/- as compensation and Rs. 50000/- as litigation cost.

           Facts in brief are that complainant is the owner of land measuring about 2 cattah and 8 chhitkas as mentioned in the schedule of the complaint.

            Complainant entered into a registered deed of agreement as joint venture agreement on 10.06.2014 which was registered on 13.06.2016 for construction of a Four storied building. Complainant also executed a power of attorney in favour of OP. It was agreed the building would be constructed within 18months from the date of sanction of building plan. It was further agreed that Complainant will get as owner allocation the entire 2^nd floor and 50% of the ground floor including one garage. The Complainant will also get Rs 600000/- out of which he has received Rs. 300000/- and another 3Lakh is due. It was also agreed that OP will provide alternative residential accommodation to the Complainant and also bear the shifting cost. The plan was sanctioned and the construction was started. Complainant handed over the vacant possession of the land and started residing at the house of Mr. Arun  Banerjee on a rent of Rs. 8000/- per month. OP only paid Rs. 5000/- as rent. In the mean time the land owner increased the rent and the Complainant paid Rs. 4000/- from his pocket. OP has not completed the construction and the building is still incomplete. Complainant sent a notice to the OP which returned back with endorsement not claimed.

            OP appeared and filed written Version where he has denied the allegation of the Complaint. Further this OP has stated that KMC initiated a proceeding under 401 of KMC Act. Against the illegal construction and OP was convicted for simple imprisonment of 6month and a fine of RS. 5000/-. Against this OP prefferred an appeal. Inspite of all this OP paid Rs. 5000/- per month to the Complainant. Further OP stated thatr the Complainant did not perform his part of this agreement and so OP prayed for dismissal of this Complaint.

Decision with reasons

          Complainant filed a petition for treating the complaint as affidavit-in-chief. Against this OP did not file questionnaire. But filed a petition for treating Written Version as affidavit-in-chief. Against this, Complainant also did not file questionnaire. Ld. Advocate for both the sides argued the case.

            Main points for determination is wheather Complainant is entitled for the reliefs as prayed for.

            On perusal of Complainant petition it appears that Complainant has prayed for a direction upon OP to complete the construction of the proposed building in all respect and make it habitable and delivery of possession.

            On perusal of the development agreement it appears that a Four storied building would be constructed upon the land. It was also agreed that the owner shall get entire 2^nd Floor of the constructed area and 50% of ground Floor space including a garage and also will receive a sum of Rs. 600000/-.

         It is the contention of the Complainant that he has received Rs. 300000/-. The building was agreed to be completed within 24 months from the date of sanction of the plan. It was also agreed that the rest 300000/- , owner will be getting after construction of the said flat. It was agreed that the developer shall provide alternative accommodation to the owner & will bear the expenses of shifting goods of owner. No specific rent amount is agreed.

          So agreement revels that first and foremost task is completion of the building. This agreement was entered into between the parties on 2014. Now more than 2years have been elapsed. So the only appropriate order would be to direct the OP to complete the Construction within 6 months. As first prayer of Complainant is a direction upon the OP is to Complete the construction. Only after construction is completed other prayers come into operation.

Hence,

Ordered

             CC/442/2016 and the same is allowed in part on contest. OP is directed to complete the construction within 6 Months. Other prayers being immature is rejected.