Final Order / Judgement

Date of Filing             :    22 November, 2021.

Date of Judgement    :    26 December, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Smt. Suchandrika Das on behalf of the above named 6 (six) complainants filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against Mr. Khurshid Alam, hereinafter called the Opposite Party or OP, alleging deficiency in service occurred from the part of the OP arising out of non-compliance of the Development Agreement executed between the Predecessors-in-interests of the complainants and the OP within the stipulated time period written in the agreement.

            The factual Matrix of the complaint, as emerged from the complaint petition and documents annexed with it, is that the Predecessors-in-interest of the Complainants entered into a Development Agreement with the OP on 17/11/2015 for construction of the Fourth Floor over the existing G+3 building lying and situated at the premises at 472/2, Sarat Chatterjee Road, P.O.–B. Garden, P.S.–Shibpur, Howrah – 711 103 under Ward No. 40 of the Howrah Municipal Corporation. Complainants alleged that the OP could not construct the proposed Fourth Floor within the stipulated 12 months from the date of executing the development agreement, nor did the OP handover the 40% constructed area to the complainants as the owners share as is written in this agreement.  Moreover, the OP did not return all the documents which were given to the OP by the Predecessors-in-interest of the complainants.  The complainants sent a legal notice through their advocate to the OP on 24/02/2021 requesting the OP not to perform any act on the basis of the development agreement which become invalid as the then owners of the subject premises, i.e. the Predecessors-in-interest of the Complainants, died and moreover, as the stipulated time period had been expired.  Through this notice they also requested to return all the documents which were handed over to the OP.  But this notice brought no fruitful result for which they have filed this instant complaint praying to direct the OP to: (i) pay ₹10,00,000/- as compensation with interest and cost causing mental pain and agony, (ii) pay a sum of ₹63,00,000/- for non-compliance of the agreement dated 17/11/2015,  (iii) pay ₹20,00,000/- for causing damage of the subject building and any other relief or reliefs as per the law and equity.

            Complainants filed copies of (i) the Registered Development Agreement dated 17/11/2015, (ii) Aadhaar Card of all the 6 complainants and (ii) the legal notice dated 24/02/2021 issued through their advocate to the OP as annexure to the complaint petition.

            Notice was served upon the OP after admission to appear and contest the case by filing his written version.  Despite receiving the notice the OP did not appear nor had he filed his written version. Consequently, the case proceeded ex parte. Then the complainants filed a petition praying to treat their complaint petition and the documents annexed therein as their Evidence on Affidavit. Argument was heard in full and the complainants filed their Brief Notes on Agreement. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OP is deficient in rendering proper service to the complainants for which they are entitled to get relief as prayed for.

DECISION WITH REASONS

            Before starting our discussion this is to be noted that this complaint has been filed by 6 complainants stated to be the legal heirs of the then owners of the building for which this complaint has arisen. From the annexed copies of the Aadhaar Card of the complainants there seem to be a relation exist as the legal heirs of the then owners except for the case of the Complainant No. 5 for whom we cannot ascertain her relation with the predecessors. Moreover, in the entire statement of the complaint petition the names of the then owners of the building, who had executed the development agreement, have not been stated. Besides, the name of one of the predecessors has been written in the development agreement as SIBO PROSAD DAS which spelling is written in the respective Aadhaar Cards also even he had signed with the same spelling during registration of the agreement, but in the Cause Title it is written as SHIB PRASAD DAS  and this miss-spelling is ignored for simplicity to proceed with this complaint.

            The material facts of this case as emerged from the complaint and the annexed documents are that the predecessors-in-interest of the complainants, namely Sibo Prasad Das and Shambhu Nath Das, had entered into a registered development agreement with the OP, Khurshid Alam, to construct the Fourth Floor of the existing G+3 building situated at 472/2, Sarat Chatterjee Road, P.O.–B Gargen, P.S.–Shibpur, Howrah - 711 101, on  17/11/2015.  It was settled in this agreement that the owners would get 40% of the constructed area in the fourth floor and the exclusive roof right.  According to the complaint the OP failed to construct the proposed fourth floor within the stipulated time period and thereby the roof of the G+3 building became damaged.  The complainants repeatedly requested the OP to comply with the agreement but the OP did not take any initiative to comply with the development agreement.    We have gone through the agreement in details and have seen that in Page – 7 in this agreement under the head COMMENCEMENT it is written as: “The Developer undertakes to complete the proposed fourth floor of said building within 12 (twelve) months from the date of execution of this Deed of Agreement.”  So, the Developer, the OP in this case, was under obligation to complete the construction work within the stipulated time period and hand over the 40% area of the constructed portion to the owners.  But the complainants alleged that the OP failed in rendering his duty even he had not taken any steps to complete the construction of the fourth floor as per agreement. 

            At this point let us proceed with the statement of the complaint where the complainants have not stated when the two owners, Sibo Prasad Das and Shambhu Nath Das died, whether they have died within one year of execution of the development agreement or not.  If they died within one year then, according to law, this agreement became void and the legal heirs should take appropriate steps and proceed accordingly as per law to fulfil the agreement.  If they died after the stipulated one year then what steps had been taken by them or, after their death by their legal heirs, are not clear as the complainants are silent in this matter. The complainants should be a part of this agreement against which they could approach before this Commission with such complaint.  Moreover, the complainants had taken steps after a gap of four long years of stipulated time period  i. e.  only on 24/02/2021 through their advocate directing the OP to stop any construction work of the fourth floor and to hand over the documents which were handed over to him by their predecessors, together with compensation.  In such a situation we think the complainants have not approached to this Commission in clean hands and thereby their claim for compensation cannot be justified.  In this position we are in folded arms to award anything as prayed for to the complainants as this complaint has no merit in the present form.  As the OP did not contest the case, so we have no contrary material to counter or rebut our decision.  In the light of the observation made by the Hon’ble State Commission, West Bengal in CC/129/2016 (Soumen Maity Vs. Subhas Das and in the light of the statement made by the Hon’ble Supreme Court in Bharti Knitting Co. -Vs.- DHL World Wide Express Courier Division of Airfreight Ltd., (AIR 1996 SC 2508 : Civil Appeal No. 9057 of 1996), we are of the view that this Commission cannot go beyond or behind an agreement made between two consenting parties.  Moreover, the complainants have not brought on record about the amount of damages caused on the roof due to non-compliance by the OP nor have they adduced any assessment of such damages. So, we are of the view that the complaint has no merit and liable to be dismissed without any cost.

            Hence, it is

ORDERED

            that the complaint Case bearing No. CC/236/2021 is dismissed ex parte against the Opposite Party and without any cost.

            Let a copy of this order be issued to both the parties free of cost.  

Dictated and corrected by me

            Member.