This is a complaint made by one Bijon Kumar Debnath, son of Late Lalit Mohan Debnath, residing at 1/15, Netaji Nagar, P.S.-Netaji Nagar, Kolkata-;700 092 against (1) Tushar Kanti Das, partner of Dwell Construction, 9/67, Netaji Nagar, P.S.-Netaji Nagar, Kolkata-700 092, OP No.1 and (2) Debjani Ghosh, partner of Dwell Construction, 9/67, Netaji Nagar, P.S.-Netaji Nagar, Kolkata-700 092, OP No.2, praying for (a) completing unfinished work and rebuilding the wrongly and defectively done work and also (b) a direction for payment of Rs.19,69,500/- as compensation.
Facts in brief are that Complainant is the co-owner of premises No.170/399, Netaji Subhas Chandra Bose Road at 1/15, Netaji Nagar, P.S.-Netaji Nagar, Kolkata-700 092. OP No. 1 & 2 are partners of Dwell Construction. The Complainant and other five co-owners of the premises entered into a construction agreement on 21.9.2011 with the OP for erecting a multi-storied building.
As per the agreement the owners’ share was to be 45% and developer’s to be 55%. However as per the supplementary agreement dt.12.5.2012 the share of the owners raised to 45% to 48% and developers’ was reduced to 55% to 52%. Further, as per the agreement dt.21.9.2011 Complainant was entitled to get 40% out of 48% from the owners’ allocation which would be in the form of two flats, one flat on the first floor and the other floor on the top floor.
Thereafter, another supplementary agreement was made between the parties where developers’ to give an extra 5% from their share of 52%. This 5% is of the total constructed area of the building. Total constructed area of the building is 6060 sq.ft. Hence, Complainant was to get 303 sq.ft. extra built up space.
Despite repeated requests, the developers did not give extra 5%. Now no space is left in the building out of the share of the developers because developers have already sold the flats. The present value of the said 303 sq.ft flat at the rate prevailing is Rs.4,500/- per sq.ft. which comes to Rs.13,63,500/-. Despite best efforts of the Complainant OP failed and neglected to hand over the possession letter, building plan and completion certificate.
As per construction agreement dt.21.9.2011 the developers ought to have installed two electric meters in the two flats of the Complainant. But, they did not do that. On the contrary, OP took a sum of Rs.8,000/- for installation of two electric meters. Complainant himself applied for the electric meter. Further OPs were required to make main door of each flat with solid wood which they did not do. They also did not provide marble in the kitchen. They did not fix grill in the balcony. They constructed the bath room with inferior quality.
OPs filed written version and denied all the allegations of the complaint. Further, they have stated that as per the agreement dt.21.9.2011 the Complainant and his other brothers and four married sisters entered into an agreement for construction of a building on the plot and where it is stated that Complainant’s share is 45% and developers’ share is 55%. Thereafter a supplementary agreement was made between the parties on 12.5.2012 wherein owners share was changed from 45% to 48% and developers was changed from 55% to 52%. Further, OPs have stated that there is no other agreement. As per the agreement OP constructed the proposed building and handed over possession to the respective owners. Further, OP had denied other allegations. So, they have prayed for dismissal of this case.
Decision with reasons
Complainant filed affidavit-in-chief against which OPs have filed questionnaire to which Complainant has filed affidavit-in-reply. Similarly, OPs have filed affidavit-in-chief to which Complainant filed questionnaire and OPs have filed reply. In the affidavit-in-chief of both the parties the respective contention made out in complaint and written version has been stated.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for. Complainant has prayed for completion of unfinished work and rebuild of the defects done in the work. There is no explanation in the complaint petition as to the nature of the unfinished work. Simply it is stated that Complainant did not make the marble and did not prepare the kitchen and bath room properly. This complaint has been filed on 1.12.2015, after about four years of the main agreement between the parties. Further, Complainant has stated in his complaint petition that Complainant received physical possession in the December, 2013. There is no explanation as to why Complainant did not file this complaint within two years which elapsed in the long two years. The fittings and fixtures of a house of flat can get damaged. Furthermore, there is no report of inspection commissioner to establish that there was deficiency in service by the developer who is OP. As such, we are of the view that this prayer cannot be allowed.
2nd prayer of the Complainant is for a direction upon the OP to pay a sum of Rs.19,69,500/- as total compensation. This amount has been arrived on the basis of the calculation of 303 sq.ft. of area which as per the Complainant was not handed over to him. Further, the rate of Rs.4,500/- has been applied and the value has been calculated as Rs.13,63,000/-. In addition, some of the allegations have been brought and the value of this have been calculated to arrive on figure Rs.19,63,500/-.
Now, this 303 sq.ft. derived on the basis of an agreement dt.21.9.2011 which was entered into between the parties allegedly on the date the main agreement was entered. This agreement is between the Complainant and Dwell Construction, wherein it has been stated that the developer has agreed to give 5% of the total construction area along with proportionate share in stair and in common part and facilities as mentioned in the main agreement.
Further, it has been mentioned here that the second part will arrange alternative accommodation for Shri Bijan Kumar Debnath during the whole construction period till the handing over possession of the owner’s allocation and other terms are mentioned
On perusal of the main agreement it appears that this was entered into between all the owners and the Dwell Construction on the same date i.e. on 21.9.2011.
Now, question arises as to why an independent agreement was required with Bijan Debnath, Complainant of this case, when on the same date the original agreement was entered. As per the original agreement the terms are mentioned and it has been stated that owners’ allocation would be 45% of the total construction area and further which of the owners shall get which area. Now, again a supplementary agreement was entered between the parties on 12.5.2012. As per this agreement it is mentioned that 2nd part has agreed to give 48% of the total constructed area along with proportionate share in stair and common part and facilities. Now, the question arises that the original agreement mentioned that owners are entitled to 45%. If this supplementary agreement which was entered into between Complainant and the Dwell Construction in that case the area of owners’ allocation comes to 50% and this in all probability the supplementary agreement dated 12.5.2012 would have been 53%. But, surprisingly, this supplementary agreement which was executed between the parties in May, 2012 is based on the original agreement where all the co-owners have signed i.e. 9on 21.9.2011 and this supplementary agreement which has been entered between Bijan Kr. Debnath who is Complainant does not fit to the paradigm which Complainant and OPs have prepared and basing on which Complainant has filed this case and intended to get advantage.
In the aforesaid facts and circumstances, we are of the view that the allegations made by Complainant remains un-proved.
Hence,
ordered
CC/60/2015 and the same is dismissed on contest.
