Date of filing : 23.4.2018

Judgment : Dt.29.10.2018

Mrs. Sashi Kala Basu, Hon’ble President

            This is an application filed under Section 12 of C.P.Act by the Complainants namely (1) Smt. Maitrayee Das, (2) Smt. Gayatri Banerjee, (3) Smt. Mahasweta Ghosh, (4) Mrs. Sumita Bagchi, (5) Smt. Mridula Banerjee and (6) Smt. Mallika Chakraborty against the Opposite Party Mr. Sanjib Dey alleging deficiency in service on his part.

            The brief fact of the case of the complainant is that they are absolute owners in respect of the property measuring about 7cottahs 7 chittaks and 16 sq.ft. which was subsequently known as Municipal Premises No.24, Banerjee Para Lane, Garia. They entered into an agreement with the OP for development and raising a multi storied building after demolition of the existing structure. Consequent to the development agreement G + 3 multi storied building was raised. In the development agreement, it was agreed by and between the parties that the Complainants will be allotted six flats and 4 car parking space. Opposite Party issued a possession letter dt.10.5.2017 and handed over possession of six flats. In the possession letter, 4 car parking spaces were handed over has been mentioned but, actually only 3 car parking spaces were handed over to the Complainants. In spite of repeated request as the fourth car parking space was not handed over to the Complainants, present complaint has been filed by the Complainant for directing the OP to provide physical possession of the car parking space within the Municipal premises No.G-8, Garia, Kolkata, with further direction to pay compensation to the tune of Rs.6,00,000/- for deficiency in service and for causing harassment and mental agony. The Complainants have also prayed for directing the OP to pay litigation cost of Rs.20,000/-.

            Along with petition of complaint, the photocopy of the alleged development agreement has been filed.

            On perusal of the record, it appears that the OP in spite of service of the notice did not take any step and thus, vide order dt.20.7.2018 case was fixed for ex-parte hearing.

            During the course of evidence, the Complainants filed a petition praying for treating the petition of complaint as affidavit-in-chief. Thereafter, the argument has been heard.

            So, the points require determination is - (1) Whether there has been any deficiency in service on the part of the OP, (2) Whether the Complainants are entitled to the reliefs as prayed for.

            Decision with reasons

            Points (1) & (2) – Both the points are taken up together for discussion for the sake of convenience and in order to avoid repetition.

            It is the specific case of the Complainants that a development agreement was executed between the parties, whereby the existing structure was to be demolished and a G+3 multi storied building was to be raised and it was agreed that the Complainants who are six in numbers would be allotted six flats in the said building and four car parking spaces. It is the admitted case of the Complainants that the flats have already been handed over to them and also three car parking spaces. But, even though in the possession letter issued on 10.5.2017, four car parking spaces have been stated. But in fact only three car parking spaces were handed over to the Complainants.

At the very out set, it may be mentioned that it is the cardinal principle of law that a party asserting a fact has to prove the same. So, the Complainants have to prove that there was a development agreement executed between the parties and a possession letter was issued, where four car parking spaces were shown but physically only three car parking spaces were handed over. In this case, barring a photocopy of the development agreement which is not signed by any of the parties, has been filed by the Complainants. Copy of possession letter has also not been filed by the Complainants for the reasons best known to them. The date was fixed for delivery of judgment on 12.10.2018. But as the original documents were not filed by the Complainant, today was fixed for the delivery of judgment directing thereby to the Complainants to file original documents. But, in spite of waiting, even today, no such document has been filed by the Complainants. So, before this Forum, barring an unsigned photocopy of the development agreement, there is absolutely no material in order to substantiate the claim of the Complainants that there was an agreement entered into between the parties and that the OP did not comply the said agreement.

            It is evident from the petition of complaint that in the possession letter it has been categorically stated that all the four car parking spaces have been handed over to the Complainants. If that be so, it becomes all the more necessary to establish by cogent evidence that in effect only three car parking spaces were given to the Complainants. The possession letter appears to have been issued on 10.5.2017. This present Consumer Complaint has been filed on 23.4.2018. But no explanation is forthcoming as to why the Complainants remained silent for so long. No notice even was sent to opposite party. In this case no Commission for inspection has been prayed by the Complainants to show the actual possession of the car parking spaces. So, in absence of any documents referred to above, we find that the Complainants have failed to establish that there has been any deficiency in services and thus the present case is liable to be dismissed.

            Both the points are thus answered accordingly.

            Hence

ordered

CC/215/2018 is dismissed ex-parte without cost.