Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The instant complaint is on behalf of the landowners against the Developer M/s. Amrapali Property Consultance represented by its sole proprietor Sri Malay Ghosh on the allegation of deficiency in services on the part of the builder in a dispute related to housing construction. 

The brief fact of the case is that one Kamini Kumar Roy during his lifetime acquired the land measuring about 3 cottah 9 chittak 0 sq.ft. in the portion of Municipal premises No. 28, Saha Nagar Road, P.S-Tollygaunge, Kolkata from its erstwhile owner by virtue of a Bengali Cobala Deed dated 19-7-1937, registered at the office of the District Sub-Registered Alipore.   The said Kamini Kumar Roy died intested living behind his three sons, Dhirendra Nath Roy, Jiban Krishana Roy and Rabindranath Roy as his legal heirs and successors to inherit the said landed property. The Complainant No.1 since deceased as the widow and the Complainant No.2 as the daughter of the said Jiban Krishna Roy have jointly inherited 1/3 undivided share of the said premises after demise of the said Jiban Krishan Roy and now being co-owners to the extent of 1/3 share of the land measuring about 3 cottah 9 chittak 0 sq.ft., have entered into a development agreement on 27-02-2013 with the O.P for development of the land of the said premises by raising masonry building consisting of several self-content flats/unit after demolishing the existing structures.  The said development agreement was registered on the same date and one general power of attorney was registered and executed on behalf of the Complainants along with the other co-owners. In the said agreement dated 27-02-2013 it was settled and agreed between the parties that one self-content flat measuring about 350 sq.ft. of built up area of the 1^st floor North East portion of the proposed new building would be handed over to the present Complainants from the land owners allocation.  In addition to that it was agreed between the parties that the developer will pay Rs.2 Lakh to the Complainants.  The amount of Rs.1 lakh has already paid to the Complainants at the time of signing the agreement.    It was also decided between the parties that O.P developer shall construct, complete and will handover the possession of the subject flat in a habitable condition within a period of 22 months from the date of obtaining sanction building plan from the K.M.C or from the date of receiving of vacant possession of that existing building.  Furthermore as per that agreement it was also agreed between the parties that the Complainant shall get the rent of the alternative accommodation during the period of time of construction.  But in spite of all these promises and even after expiry of the stipulated period of time the O.P/developer has failed and neglected to perform his obligation in terms of the said development agreement dated 27-02-2013.  It appears from the materials on record that in spite of proper service of notice the O.P did not enter his appearance.  Accordingly, the case was fixed for ex-parte hearing as no W/V has been filed by the O.P/developer.

The Ld. Counsel for the Complainant submits that the present complaint petition has been filed by

1. Smt. Anjail Roy widow of Late Jiban Krishna Roy.
2. Smt. Nandini Chakaraborty daughter of Late Jiban Krishan Roy, the erstwhile owner of the land. 

During pendency of the case on 30-02-2019 vide order No.06 the name of the Complainant No.1 was expunged from the complaint petition as the Complainant No.1 passed away on 29-08-2018 and the Complainant No.2 renumbered as Complainant No.1 as the sole Complainant.  Ld. Advocate for the Complainant argued that as per the registered development agreement dated 27-02-2013 one general power of attorney was also executed and registered on the same date.  But in spite of that the developer/ the sole proprietor of M/s Amrapali Property Consultants represented by Sri Malay Bose failed and neglected to deliver the possession of the said subject flat to the Complainant and not even paid the balance amount of Rs. 50,000/- to the Complainant/land owner.  The Complainants in such compelling circumstances have sent legal notice on 22-04-2018 to the O.P/developer through their lawyer and thereby demanded delivery of possession and payment of balance amount of Rs.50,000/- within 15 days from the date of receipt of the said notice.  But in spite of proper service of the said notice the O.P remained silent and did not hand over the possession.  Which compelled the Complainants to appear before this Commission for redressal of their grievances with prayers including delivery of possession of the subject flat by issuing letter of possession and obtaining completion certificate, payment of balance amount of premium of Rs. 50,000/- together with interest @18% p.a., monthly rent @ 15,000/- per month since January 2015, along with compensation of Rs.2,00,000/- for mental agony, harassment and litation cost of Rs.50,000/- Even after proper service of notice to the O.P/Developer the O.P neglected to appear before this Commission to contest the present case.

Heard the Ld. Advocate for the Complainant at length.

Perused the materials on record.

It appears on scrutiny of the record from order No.5 dt. 12-11-2018 that the O.P did not appear and remained absent without any step in spite of proper service of notice and the case was fixed for ex-parte hearing. 

The Complainant has filed evidence on affidavit in support of his case.

As no W/V, evidence on affidavit have been filed by the opposite

The statements made by the Complainant on affidavit remain unchallenged and uncontroverted. 

Needless to say that the parties are bound by the terms and conditions of the agreement and we can say that O.Ps/ developer are bound by the terms of the contract/agreement dated 27-02-2013.  It is the obligation of the developer to handover the possession the subject flat to the landowner/Complainant within the stipulated period of time.  But in spite of that they did not handover the subject flat to the complainant and it caused enormous suffering of the Complainant which tantamounts to deficiency in service.

On the perusal of materials on record it transpires to us that the Complainant is a consumer as defined U/s. 2(1)(d) of C.P Act 1986 as hired services relating to housing construction from O.P/developer.  But in spite of that the said subject flat was not handover to the Complainant as per scheduled of the development agreement.  We consider such negligence as a serious deficiency as well as unfair trade practices on the part of the developer U/s. 2(1)(g) 2(1) (o) 2(1)( r) of C.P Act.  But we cannot consider the prayer regarding monthly rent @ Rs.15,000/- since January 2015 as no such receipt has been annexed herewith by the Complainant as document to prove such claim.

In view of the above discussion the Complaint being No. CC/423/2018 is allowed ex-parte in part with the following directions:-

1. The O.P/developer is directed to deliver peaceful possession of the subject flat in habitable condition as per the scheduled mentioned in the development agreement dated 27-02-2013.
2. The O.P is further directed to pay the balance amount Rs.50,000/- along with interest @ 9% since the date for payment till its actual realization. 
3. The O.P developer is again directed to pay Rs.2,00,000/- as compensation for causing mental agony and harassment to the Complainant along with litigation cost of Rs.25,000/- .

The above mentioned payment shall be made within 90 days from the date of communication of the order failing which the Complainant is at liberty to put the order in execution.