HON’BLE MR. SHYAMAL KUMAR GHOSH, MEMBER

The complainant has filed the instant case against the opposite parties before this Commission and prayed for delivery of possession of the complete constructed portion as mentioned in the schedule-B along with Completion Certificate, sanctioned plan, other relevant documents, payment of compensation for a sum of Rs 20,00,000/-, payment of interest, cost etc.

The brief fact of the case is that the opposite parties approached to the complainant for developing the land situated at Howrah. As per agreement for development dated 29/11/2004, the ops 1 was bound to transfer 33% share of constructed area (Owner’s allocation) to the complainant. It is stated that the complainant along with Kalyan Kr. Sanyal and Dipti Som are the joint owners of the property. They entered into an agreement for development with the ops where the both ops agreed to develops the said property with a condition for delivery of 33% share of constructed area to the owners. The opposite party 1 thereafter completed the work of construction and the complainant demanded his share but the ops did not handover the same to the owner/complainant. After enquiry, it was revealed that ops have transferred their share to different purchasers. As per agreement, the complainant is entitled to get 25% out of 33% of the total constructed area, but the ops did not pay any heed in this matter causing gross negligence and deficiency in service on the part of ops. Having no other alternative the complainant knocked at the door of this Commission for getting proper relief/reliefs against the ops.

No written version was filed by the ops and as such the case was heard ex parte against them.

The case was taken up for ex parte hearing. Hearing was concluded. At the time of hearing Ld. Counsel for the complainant stated that neither the ops-developers provided the share of complainant as per agreement nor they have paid any amount to the complainant causing gross negligence and deficiency in service on the part of ops- developers.     

We have heard the Ld. Advocate for complainant.   Considered his submissions and perused the materials on records.

Before explaining the other issues involved in the complaint case, we try to decide at first whether the complainant comes within the purview of the definition of the ‘consumer’ as per Consumer Protection Act, 1986 or not.

At first we have carefully perused the agreement for development dated 29/11/2004 executed between the complainant with joint owners/landlords and ops developers/contractors. This agreement clearly indicates that 67% of total property goes in favour of the developers and the rest portion ie 33% of the same goes in favour of the complainant along with the other joint owners. This agreement also indicates that the complainant is entitled to get 25% out of 33% of the owners’ allocation. Be it mentioned here that 20% has been written wrongly instead of 25% in the said agreement as 50% out of 33% of the owner’s allocation has been allotted in favour of Smt Dipti Som and 25% out of 33% of the owner’s allocation has been allotted in favour of Sri Kalyan Kr. Sanyal. In the said agreement, the opposite parties /developers agreed to erect and complete the building along with common facilities and amenities by using standard quality of materials. So, it is clear to us that the developers were bound to provide some services to the complainant / co-owner. Relying upon the above observations, we hold that as per Faquir Chand Gulati-vs-Uppal Agencies Pvt. Ltd reported in lll (2008)CPJ 48 SC and (2008) 10 SCC 345, the complainant –co-owner comes within the purview of the definition of the ‘Consumer’ as per Consumer Protection Act, 1986.

We have perused the letter dated 11/07/2016 written by the complainant addressed to the ops developers and by this letter he prayed for delivery of his share of constructed area. As per annexure C, it is evident that a complaint was lodged against the ops developers with certain allegations in the office of Assistant Director, Consumers Affairs Dept, Howrah-711101. At the time of hearing the complainant alleged that the ops did not deliver his share of the property. But as against the said event, one of the partner viz Pradip Kumar Singh by the letter dated 17/03/2017 stated that the complainant Mr. Shyamal Kumar Laha already received  money from the developer in respect of balance share of owner’s allocation. He also stated that all owners including the complainant in the instant case received their respective allocation and money from the developer. But in the mediation proceeding, he did not file any scrap of paper in support of his submissions and as such the case was dropped. Accordingly the office concerned advised to the complainant to approach the Consumer Fora/Commission for getting proper reliefs.

In the instant consumer case, the ops developers had enough opportunities to contest the case by filing their written version along with relevant documents and papers but instead of that they kept silent. Mere silence on the part of ops developers goes against them as the complaint made in the petition remains unchallenged. Under such circumstances, there is no way to disbelieve the facts stated in the complaint-petition filed by the complainant and we hold that there is a gross negligence and deficiency in service on the part of ops-developers due to breach of the terms and conditions of the said agreement for development dated 29/11/2004.      

Keeping in view of the above facts and circumstances, we allow the consumer case ex parte against the ops-developers and they are directed to provide 25% out of 33% of the owner’s allocation as per agreement dated 29/11/2004 to the complainant along with completion certificate within the 60 days from the date of this order. The ops are further directed to pay compensation of Rs 30,000/- (Rupees thirty thousand only) for mental and physical harassment since long period of time and to pay litigation cost of Rs 10,000/- (Rupees ten thousand only) within the said stipulated period of time. In default, the complainant shall have liberty to take proper steps against the ops-developers as per law.