Order-19.

Date-23/12/2016.

This is an application u/s.12 of the C.P. Act, 1986.

In short, the case of the complainant is that the complainant entered into an agreement with the O.P.-1 for construction of three storied flat  in respect of a plot of land measuring about one Cottah-one chatak-28 Sq. Ft. being the premises No.14/1, Kayastha Para Main Road, P.S. Kasba, Kolkata-700078 and that purpose complainant executed General Power of Attorney  on 10/05/2013 in favour of O.P.-1, the Developer. As the dwelling house of the complainant will be developed and constructed by O.P.-1, the Developer shall provide a temporary shifting rented 2 BHK room  at the rate of Rs.5,600/- per month rent and accordingly the complainant shifted his family to rented house on 16/06/2013 and the on the next day the developer starts to demolish the old house of complainant. As per agreement, the proposed building shall be completed within a period of 18 months from the date of starting construction. O.P.-1 stopped construction about one year and also the monthly rent to the complainant. Then complainant sent legal notice for making payment of monthly rent dues. Thereafter, O.P.-1 paid monthly rent from April-2014 to July-2014. But shifting rent from August-2014 to January-2016 still pending. Developer O.P.-1 by submitting a letter to Kasba P.S. that due to lack of fund he could not complete the construction work. Complainant sent legal notice for compliance as per agreement dated 10/05/2013 but O.P.-1 did not pay heed and finding no way the complainant appeared before this Forum with the prayer stated in the complaint.

          O.P.-1 appeared and contested the case by filing W.V. denying the allegation of complainant stating inter alia that this O.P. tried his level best  to complete the construction in due time but after construction of 3^rd floor complainant oppose to handover possession of ground floor to the purchaser Uma Ghosh and 1^st floor to Ajay Shaw. This O.P. has already invested a sum of Rs.25,00,000/- for the purpose of construction  of building but complainant forcefully without getting possession letter from developer entitled into 2^nd floor and trying to capture entire 3^rd floor only for monetary gain. This O.P. handed over the  owner’s allocation and using the same with all facilities  as such the complainant is not entitled the claim amount and the claim of the complainant is liable to be dismissed.

          O.Ps.-2 and 3 also appeared and contested the case by filing W.V. stating inter alia that O.P.-2 booked a flat on the ground floor measuring 650 sq. ft. at a total consideration of Rs.7,00,000/-  on 07/07/2014 and paid Rs.2,50,000/- to O.P.-1 and O.P.-3 also booked a flat on the 1^st floor measuring 700 sq. ft. at a total consideration of Rs.11,50,000/- and O.P.-3 paid Rs.5,50,000/- to O.P.-1. Both O.Ps.-2 and 3 are in possession of ground floor and 1^st floor from developer’s allocation in incomplete condition. Both O.Ps. on several occasions requested to O.P.-1 and complainant to execute the deed of registration but complainant is not willing to do the same. Both the O.Ps. pray for registration of their sale deed of their respective flats and pray for damages and cost against both O.P.-1 and complainant.

Point for Decision

1. Whether the O.P.-1is deficient in rendering service ?
2. Whether complainants are entitled to get relief as prayed for ?

Decision with Reasons

On careful perusal of the entire case record together with documents and argument advanced by the parties, we find that complainants entered into an agreement with the O.P.-1 on 10/05/2013 to construct new multistoried building by demolishing their old house and as per said agreement, the construction work will be completed within 18 months from the date of commencement of construction. It appears from the agreement dated 10/05/2013 that O.P.-1 shall provide and deliver entire 2^nd floor of the proposed multistoried building comprising with one flat complete with outside plaster, inside wall plaster of paris, marble flooring, plywood flush doors, and MS windows, bathroom shall have 5 ft. tiles / marble flooring, sink, waterline with all fitting and one black stone cooking platform. One loft shall be provided on the bathroom and kitchen to the owners free of cost at their share and O.P.-1 shall also provide temporary rented house of two rooms for the owners during the construction period.

          It appears from the complaint and documents on record that O.P.-1 constructed upto 3^rd floor of the proposed building but entire premises are in incomplete condition and such a situation O.P.-1 stopped the construction work for about one year and also stopped payment of the monthly rental for the rented house of the complainants  at the rate of Rs. 5,600/- per month from August-2014 to January-2016. But in the meantime O.P.-1 also entered into another agreement for booking of ground floor and 1^st floor flats with two  intending purchasers i.e. O.Ps.-2 and 3  and received advance amount from O.Ps.-2 and 3 and they also took possession of the said flats in incomplete condition from developer’s allocation. From the documents we also find that complainants after taking possession of 2^nd floor of constructed building have already spent Rs.1,22,758/- for the purpose of bathroom fitting and electric wiring by borrowing money with interest which total cost of Rs.1,37,758/- and shifting rent is also due by O.P.-1 from August-2014 to January-2016 (5600X 18 months) total of Rs.1,00,800/-. Besides those constructed 2^nd floor area still incomplete as per agreement dated 10/05/2013.

          It reveals from the documents and copy of photographs of the constructed building that O.P.-1 has not completed the construction work as per agreement and O.P.-1 also admitted that due to paucity of fund he could not complete and finished the building work. It appears from the documents on record that O.P.-1 could not complete the construction work of the building in question within the period of 18 months. As the O.P.-1 stopped the payment of monthly rental of the temporary rented house, the complainants finding no other alternative compelled to enter into the said incomplete and inhabitable flat on the 2^nd floor of the proposed multistoried building and they had to spent Rs.1,37,758/- to make their portion to some extent habitable as O.P.-1 did not complete all the unfinished works as per agreement dated 15/05/2013 and it is found that the said 2^nd floor is still in incomplete condition.

          In the present case, both the O.P.-2 and 3 have no relation with complainants and complainants did not pray any relief against O.Ps.-2 and 3.

          In view of the discussion hereinabove we think that O.P.-1has been deficient in rendering service and for such act on the part of the O.P.-1 complainants suffered mental pain, agony and also monetary loss and as such, in our considered view, the complainants are entitled to get relief as prayed for.

In result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed in part on contest against the O.P.-1 and dismissed against O.ps.-2 and 3.

          O.P.-1 is directed to pay to the complainants Rs.1,37,758/- towards the expenses incurred by the complainants to make their flat habitable together with Rs.1,00,800/- towards the dues respecting the monthly rent for the temporary rented house  for 18 months apart from litigation cost of Rs.10,000/- within one month from the date of this order.

          O.P.-1 is further directed to complete the remaining unfinished works of the 2^nd floor of the proposed building of the complainant as per agreement within two months from the date of order.

Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage  at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.