SAMIKSHA BHATTACHARYA, MEMBER
The instant appeal is directed by the appellant against the final order dated 02.04.2019 passed in Complaint Case being No. CC/294/2018 passed by the Ld. District Commission, Kolkata Unit-I. The Ld. District Commission allowed the complaint ex parte with cost against the OP. The order of the Ld. District Commission is reproduced as under:
“That the C.C. No. 294/2018 is allowed ex parte with cost against OP.
OP is directed to take necessary steps to handover the possession of the flat to the complainants as well as provide Completion Certificate of the building within two months from this date of Order. OP is further directed to pay Rs.2,73,000/- (Rupees Two lakh and seventy three thousand) only as per agreement and Rs.30,000/- (Rupees thirty thousand) only towards compensation for harassment and mental agony and Rs.10,000/- (Rupees ten thousand) only towards litigation cost within 30 (thirty) days from the date of communication of this order, i.d. an interest @ 8% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization. “
Being aggrieved by and dissatisfied with the said order, the appellant/OP No. 1 (hereinafter referred to as ‘OP No.1’) preferred the instant appeal.
The facts of the case, in brief, are that on or about 29th July, 1994 the OP approached the Respondents No. 1, 2, 3 & 4/complainants (hereinafter referred to as ‘complainants’) with a desire and intention of develop and promote the Schedule ‘A’ property and raise multi-storied building by demolishing the existing structure. The complainants were the absolute owners of the Schedule ‘A’ property along with Late Usha Dhar (since deceased)/wife of Late Aurobinda Chandra Dhar and Son Aurobinda Chandra Dhar, namely, Abhijit Dhar, since deceased. Said Abhijit Dhar died on 11.12.2011 leaving behind his wife namely, Alpana Dhar, and his son, namely, Animesh Dhar, his son as his legal heirs and successors to the undivided share in the Schedule ‘A’ property who were made proforma OP in the petition of complainant/ Respondents No. 5 & 6 in the present Appeal (hereinafter referred to as OPs No. 2& 3). Said Usha Dhar died on or about 29.07.2018 intestate leaving behind the complainants and the OPs No. 2 & 3 as legal heirs and successors to her undivided share in the Schedule ‘A’ property. An agreement for sale was signed and executed between the complainants along with Usha Dhar mother of the complainants (since deceased) and Abhijit Dhar, brother of the complainants (since deceased) and the developer/Appellant/OP No. 1 on 29.07.1994. In terms of the said agreement signed and executed by and between the parties the OP No. 1 was under an obligation to deliver one flat as per Schedule ‘B’ along with Rs.3,00,000/- as owner’s allocation within 15 months from the date of sanction plain by the KMC. The complainants handed over the vacant possession of the Schedule ‘A’ property to the developer/OP No. 1 in the year 1994. The complainants also handed over all the title deeds of the property to the OP No. 1/developer and also executed a power of attorney in favour of the OP No. 1 to facilitate the construction work of the Schedule ‘A’ property. In terms of the said development agreement, the OP No. 1/developer provided an alternative accommodation to the complainants. The OP No. 1 could not deliver the possession of the owners’ allocation and deliver the same to the complainants and thereafter the OP No. 1/developer accommodated the complainants to another make shift accommodation purely temporary in nature with corrugated shed at the terrace of Premises No. 22, Girish Avenue, Kolkata, 700003 where the complainants are presently residing enduring much hardship and agony. The OP No. 1/developer has deliberately failed and neglected to deliver the possession of the owners’ allocation to the complainants till the filing of the complaint case before the Ld. District Commission.
The complainants have also stated in the petition of complaint that the Schedule ‘C’ property is standing in the name of the OP/developer, complainants are pain maintenance bill for the said apartment month by month and paying the electricity bill standing in the name of the OP/developer for the cost of electrical energy consumption by the complainants. The complainants are residing in the said Schedule ‘C’ property being the temporary transit accommodation since 2004 as the OP No. 1 has failed to deliver the possession of owners’ allocation to the complainants. Hence, the complainants have filed petition of complaint before the Ld. District Commission praying for direction upon OP No. 1 to handover and deliver the possession of the Schedule ‘B’ property along with possession letter with respect to the Schedule ‘B’ property and the completion certificate of the G+4 building raised at Schedule ‘A’ property. The complainants have also prayed for direction upon OP No. 1 to pay outstanding amount of Rs.2,58,000/- due and payable by the OP No. 1 along with applicable interest and to handover the owners’ allocation completely in terms of the joint-venture agreement dated 24.02.2012. The complainants have further prayed for penal dues arising due to the delay in delivery of possession in terms of the development agreement along with compensation of Rs.7,00,000/- for causing mental harassment and loss of social prestige and good will and litigation cost of Rs.1,00,000/-.
Though the notice was served upon OP No. 1. None appeared on behalf of OP No. 1 and the proforma OPs (being OPs No. 2 & 3) and, therefore the case was proceeded ex parte against the OP No. 1/developer and the proforma OPs. In course of argument, Ld. Counsel for the OP/developer has submitted that due to financial crisis, the appellant/OP No. 1/developer borne all cost of living of the Respondents No. 1, 2 & 3/complainants and treated them sympathetically and mother of the complainants already received the entire payable amount against money receipts which are lying with the appellant/developer/OP No. 1. The complainants have knowledge that they cannot arrange all the legal heirs and for that after the death of their mother, they filed the instant case to get sympathy as well as to get undue advantage. The complainants are unable to arrange all owners for receiving the owners’ allocation and for that there is no question of deficiency in service on the part of the appellant/developer/OP No. 1. The mother of the complainants had every knowledge that they never arrange all the legal heirs of her deceased son and for that reason till her lifetime she did not blame upon the OP No. 1 and after her demise the present complainants filed the case before the Ld. District Commission. The complainants have falsely stated that they are the absolute land-owners but the OPs No. 2 & 3 are also the present co-owners of the property being legal heirs of Late Abhijit Dhar. The complainants are the joint owners along with late Usha Dhar since deceased and her son Abhijit Dhar since deceased. After expiry of Abhijit Dhar, the Respondents No. % & 6 (OPs No. 2 & 3) became the co-owners of the property.
Ld. Advocate for the appellant/OP No. 1 has submitted that there was an agreement with the complainants along with their mother and brother on 29.07.1994 with the OP No. 1/developer. She has also submitted that as per the said agreement dated 29.07.1994 it was agreed that one flat measuring about 500 sq. ft. super built up area at the premises No. 76A Shyambazar Street, Kolkata 700006 would be delivered to the owners of the land as owners’ allocation along with Rs.3,00,000/-. But she has also submitted that the amount has already been paid by the developer/OP No. 1 which is mentioned in the Para 5 of the Memo of Appeal. Since 1994 till date the developer bears all cost of shifting of the complainants. The developer is ready and willing to deliver the owners’ allocation to the owners of the property since long but due to the dispute between the complainants and the OPs No. 2 & 3 being the wife and son of Late Abhijit Dhar (who was son of late Usha Dhar), the owners’ allocation cannot be handed over.
The Ld. Advocate for the appellant has further stated that the Ld. District Commission has passed the order erroneously and without any cogent ground. The judgment was passed ex parte without satisfying about the service of notice. The notice of the complaint case was served to wrong address. The notice of the instant case came to the knowledge of the OP No. 1 after institution of the execution case arising out of the complaint case. The envelope containing the notice of the execution case was delivered to the OP No. 1 with correction of the postal address by Postal Authority.
In course of argument, she has also showed us the receipts towards of payment of Rs.3,00,000/- as per agreement executed and signed by and between the parties on 29.07.1994. Hence, she has prayed for setting aside the order dated 02.04.2018 in CC case being No. CC/294/2018 passed by the Ld. District Commission, Unit-I and any other relief which the Commission may deem fit and proper.
The Ld. Advocate for the Respondents No. 1, 2, 3 & 4/complainants has submitted that the complainants are the joint owners of the Schedule A property and the agreement dated 29.07.1994 was executed and signed by and between the OP No. 1/developer and the owners of the Schedule A property. As per agreement, it was under legal obligation of the developer to deliver the owners’ allocation to the owners within 15 months. But the developer did not hand over the same. Moreover, after passing of the order, the OP No. 1 did not comply with the order. As per Article XVIII, Clause 18.1 (Page 33) of the Development Agreement dated 29.07.1994, the OP No. 1 is under obligation to deliver possession of owners’ allocation within 21 months failing which OP No. 1 is under strict obligation to pay penalty @ Rs.3000/- per month to the complainants.
The Ld. Advocate for the complainants has also submitted that the order dated 02.04.2019 passed by the Ld. Trial Commission suffers from no infirmity as it has given a well reasoned order. He has also argued that though the appellant/OP No. 1 has stated that the owners have already received the entire payable money but no receipts were produced in support of their claim. The another argument on behalf of the appellant/OP No. 1 that “the owner are unable to arrange all owners to get owners’ allocation” is not true. Since the OP NO. 1 failed and neglected to deliver the possession of the owners’ allocation he has taken this plea. Though the OP No. 1 has taking the plea in the appeal in respect of receipt of payment by the owners, the OP No. 1 has failed to produce any document in this regard. The OP No. 1 has never issued any possession letter in favour of the complainants. Hence, he has prayed for dismissal of the present appeal since the appellant/OP No.1 is not entitled to any relief as prayed for.
He has further submitted that the complainants, being ladies, are suffering several tremendous mental pain and agony for so many long years due to highhanded and deliberate overt conduct perpetrated on the part of the OP No. 1 and therefore, he has prayed for upholding the order dated 02.04.2019 passed by the Ld. District Commission, Kolkata, Unit I, in CC case being No. CC/294/2018.
Upon hearing the parties and on perusal of the record, it is admitted fact that the complainants along with their mother and brother entered into an agreement with the developer/OP No. 1 on 29.07.1994. As per agreement, there is no dispute that the owners are entitled to a flat measuring about 500 sq. ft. along with Rs.3,00,000/-. It is also admitted position that the mother of the complainants, namely, Usha Dhar expired in the year 2018. It is also admitted fact that another co-owner of the property, namely, Abhijit Dhar, being the son of late Usha Dhar and the brother of the complainants also the died and the OPs No. 2 & 3/Respondents No. 5 & 6 are the legal heirs of late Abhijit Dhar. It is also admitted position that till date the developer/OP No. 1/the appellant has neither issued any possession letter to the owners of the property in respect of the Schedule B property nor handed over the property to the present owners of the property being the complainants No. 1, 2, 3 & 4 and the OPs No. 2 & 3. As per agreement dated 29.07.1994 it was agreed by and between the parties that the developer would hand over the owner’s allocation within 15 days and Rs.3,00,000/- at the time of delivery of possession of owners’ allocation. At the time of hearing, Ld. Counsel for the appellant/developer/OP No. 1 has showed us the documents towards payment of agreed amount of Rs.3,00,000/- which is more than Rs.3,00,000/- already paid to late Usha Dhar and late Abhijit Dhar. The money receipts showing payment more than Rs.3,00,000/- may be for non-delivery of owners’ allocation in time. The Argument of Ld. Counsel on behalf of the Respondents No. 1, 2, 3 & 4/the complainants that these documents were not produced by the developer earlier. But this argument cannot be acceptable since the judgment was passed by the Ld. District Commission ex parte. The OP No. 1 has no option to produce such documents before the Ld. District Commission. It is admitted position that the complainants are residing in Schedule ‘C’ property (the transit accommodation).
But the complainants have not stated that the proforma OPs, namely, Smt. Alpana Dhar and Sri. Animesh Dhar are also the present owners of the property. It is pertinent to mention that in the petition of complaint, the owners have prayed for delivery of the possession of the Scheduled property along with outstanding amount of Rs.2,58,000/- but nowhere in the petition of complaint the complainants have prayed for delivery of owners’ allocation to be handed over to the complainants along with the OPs No. 2 & 3 being the joint owners of the property. The complainants have not made any statement that the proforma OPs No. 2 & 3 are also entitled to receive the share of balance amount of Rs.2,58,000/-, if any, from the developer. Though the complainants have prayed for balance consideration of Rs.2,58,000/-, the Ld. District Commission passed the order to pay the balance consideration of Rs.2,73,000/- to the complainants. The Ld. DCDRC has passed the order in favour of the complainants only considering that they are the absolute owners. But the Ld. DCDRC has erroneously omitted the right of other two co-owners.
The Ld. District Commission has not considered the status of proforma OPs No. 2, & 3 since they are joint owners of the property with the complainants. From the impugned order, it appears that the case was allowed ex parte against the OP but nowhere in the judgment it was mentioned that the notice was served to Smt. Alpana Dhar and Sri. Abhijit Dhar. Whether any opportunity was given to proforma OPs, namely, Smt. Alpana Dhar and Animesh Dhar to file their written version to submit their contention, it is not clear from the judgment. Since the case was proceeded ex parte against the OP/developer, he could not produce any document towards receipt of balance consideration. Therefore, it would be wise, just and proper to remand the case to the Ld. District Commission for adjudication of the matter properly.
We think the OPs should get an opportunity to file their respective written version. Since the instant appeal was heard ex parte against Respondents No. 5 & 6/OPs No. 2 & 3 the appellant should serve the notice to them informing the next date of appearance before the Ld. District Commission, Kolkata, Unit-I along with this order. The Appellant is further directed to file their written version before the Ld. DCDRC on the date of appearance.
The impugned order dated 02.04.2019 in CC/294/2018 is hereby set aside.
In view of above, let the case be remanded back to the Ld. DCDRC, Kolkata, Unit-I.
The Ld. DCDRC is requested to accept the written version of OP No. 1 and to give the opportunity to OP No. 2/Smt. Alpana Dhar and OP No. 3/Sri Animesh Dhar to file their written version and thereafter to proceed with the case according to law.
The Ld. DCDRC is further requested to dispose the case on merit within two months from the date of receiving this order.
Fix 01.09.2023 for appearance of the parties before the Ld. District Commission and for filing written version by OP No. 1/Appellant and for filing affidavit of service in respect of Respondents No. 5 & 6/ OPs No. 2 & 3 by OP No. 1/Appellant.
The Appeal is, thus, allowed in part on contest against the Respondents No. 1, 2, 3 & 4 and ex parte against Respondents No. 5 & 6.
There is no order as to costs.
The Appeal is disposed of accordingly.
Let a plain copy of the order be transmitted to the Ld. District Commission, Kolkata Unit- I at once.
