Date of Filing             :    30 September, 2020.

Date of Judgement    :    30 January, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Mr. Alim Ahemed Qureshi, hereinafter called the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against (1) Mr. Rehan Khan and (2) Mr. Mazhar Khan, hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from their part arising out of non-compliance of the Development Agreement executed between them on 02/07/2016 by the OPs.

            The contention of the complainant, as stated in the complaint petition supported by annexed documents, is that, in short, that the complainant, being the owner, entered into a Development Agreement with the OPs as the developer on 02^nd July, 2016 in order to construct a G+3 storied building in the premises at 484, G. T. Road, P.S.- Shibpur, Howrah-711102, comprising of area of 01 Cottah 04 Chittak 43 sq ft, equivalent to 943 sq ft.  According to this agreement the developers, the OPs, undertook the responsibility to construct a G+3 storied building from which the owner, the complainant, was assured to get the entire First and Second Floors of the building and  it was settled that the developer would hand over these two floors within 12 months from the date of starting the construction.  It is also the contention, as described in the complaint but not supported by any document, that the OPs were bound to hand over the entire 1^st & 2^nd Floor including a shop room of area of approximately 200 sq ft to the complainant/owner in complete habitable condition within the time period. Complainant stated that the OPs started the construction on 01/04/2019 and handed over the entire 1^st & 2^nd Floors in incomplete condition to the complainant except the shop room.  He repeatedly requested the OPs to hand over the shop room and to finish the incomplete works but the OPs did not comply with his requests till filing this case. Even the OPs threatened him for dire consequences for which he lodged a General Diary at the local Police Station.  However, as the OPs failed to comply with the duties envisaged by the development agreement then he filed this instant complaint praying to pass the following orders:  (1) to direct the OPs to serve him (i) a copy of the sanctioned building plan, (ii) possession letter in respect of the entire 1^st & 2^nd Floors except the shop room with complete habitable condition, (iii) to hand over the shop room, (2) Permanent injunction against the OPs restraining them for peaceful possession of the complainant and to restrain the OPs to hand over the shop room to any third party, (3) to pay ₹2,00,000/- by the OPs as compensation and damages for mental pain and agony,  (4) to pay ₹50,000/- as litigation cost and other order(s) as this Commission may deem fit and proper.

            Complainant filed copies of (i) the Title Suit being No. 53 of 1994, (ii) the undated,  unregistered and non-notarised Development Agreement signed on 02/07/2016 and (iii) the unregistered Power of Attorney signed on 02/07/2016 as annexure to the complaint petition.

            Notices were served upon the OPs after admission to appear and contest the case by filing written version.  OP – 2 did not appear before this Commission for which this case proceeded ex parte against OP – 2.  OP – 1 appeared through his Ld. Advocates and filed the written version.  Complainant then filed his Evidence on Affidavit.  But the OP – 1 did not file any questionnaire nor did he file any evidence. Ultimately argument was heard in full and the complainant filed his Brief Notes on Argument.  We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OPs are deficient in rendering proper service to the complainant for which he is entitled to get relief as prayed for.

DECISION WITH REASONS

           1.    Before coming to a decision let us go through the statement of the complaint petition from which we find that the complainant have entered into a development agreement with the developers/OPs on 02/07/2016 for construction of a G+3 storied building in the premises at 484, G. T. Road, Shibpur, Howrah-711102.  Complainant got possession of the premises through a Partition Deed with a Final Decree (under Order 20, Rules 6 & 7 of CPC/Order 23, Rule 3 of CPC) passed by the Hon’ble Civil Judge (Sr. Division), 2^nd Court at Howrah vide Title Suit No. 53 of 1994.  We see from this Decree that the complainant’s share has been described under Schedule ‘B 1’ which has been allotted to Alim Ahmed (emphasis provided) comprising of 943 sq ft and marked as Plot ‘A’.  complainant has never stated in his complaint that his property should be more fully described as Plot A in the premises at 484, G. T. Road (S), P.S.- Shibpur.  But the complainant has written his address in the Cause Title of the complaint petition as 484, G. T. Road, P. S. – Shibpur, District Howrah-711102,omitting the portion ‘(S)’ and his name is written as Alim Ahemed Qureshi instead of Alim Ahmed Qureshi.

            2.         In Para-2 of the complaint, the complainant stated that a 200 sq ft shop room situated at the ground floor of the building where the new building was to be constructed is the main contention that the OPs have not handed over to him.  In Para-4 complainant stated that the OPs have already handed over the entire ground floor and the entire second floor in incomplete condition except the shop room, but he did not mention on what date he got possession of his allotted portion except the shop room.

            3.         Now, let us take the Development Agreement and the General Power of Attorney executed between the owner/complainant and the developers/OPs. Both of these documents are neither registered nor notarised, even the date of execution has not been mentioned.  In the agreement signed on 02/07/2016, in Clause – 3 in Page – 4 of this agreement, it is written as: “That the Second parties (the OPs) shall provide entire ground floor and first floor of the proposed building to the First party (the Owner/Complainant) without any cost and Second and Third Floor shall be allocated to Second Party.” (Emphasis provided).  In the entire agreement containing, 8 pages, there is no mention about the shop room in the ground floor as stated in the complaint petition.  It is the written version of the OP-1 from which we come to know for the first time that there was a (shop room) tenant and the owner/complainant was trying to oust out of his tenancy.  Complainant has never mentioned that he has a tenant and the disputed shop room is under tenancy.

            4.         In the written version the OP-1 categorically denied and disputed all the allegations of the complainant.  He stated that they (OPs) have already handed over the entire first and the second floors to the complainant in complete condition and have issued possession letter in this respect.  It is his contention that the complainant was not allowing them to complete the construction of the second and third floors by obstructing them to use the common passage of egress and ingress.  It is his allegation that the complainant was trying to oust out the tenant of the disputed shop room after construction of the new building.  It is stated in the written version that the tenant has been reinstated in the shop room – by whom it is not stated.  He also alleged that despite receiving ₹1,00,000/-, as is written in the agreement, the complainant was trying to obstacle the completion of the building thereby the complaint is itself is frivolous and baseless.  It is the contention of the OP-1 that they have not done anything which could be called as deficiency in service, so the complaint is liable to be dismissed.

            5.         After filing the written version the OP-1 did not participate in later proceedings of this case, nor did he file any evidence, for which his claim of handing over the possession letter to the owner/complainant cannot be established.  As the OP-2 has not contested the case his version is not known to us.  Complainant complained of handing over the incomplete 1^st & 2^nd Floors except the disputed shop room whereas the OP-1 stated that they have handed over the 1^st & the 2^nd Floors with possession letter but no proof is given by the OP-1.  The OP-1 stated that the complainant had a tenant in the disputed shop room which the complainant did not mention and there is not a single word about the shop room in the development agreement.

            All the above noted facts tell us that there are some suppression of facts occurred from both the complainant and the OPs.  It is a settled principle that this Commission cannot go beyond and/or behind the agreement signed by two consenting parties.  Clearly the complainant in this case is a ‘Consumer’ as defined under Section 2(7) of the Consumer Protection Act, 2019 who intended to avail ‘service’, as defined under Section 2(47) of the Act, of the OPs for the development of his property. Complainant filed this instant complaint on 30/09/2020 whereas he has already got possession of his allocated portion, except the shop room as alleged, but this has not been mentioned in the development agreement, somewhere in 2020.  He has not mentioned, nor did he annex any document, whether he had communicated to the OPs about his allegations or not except mentioning a GDE before the local police station on 08/09/2020.  As there is no mention in the development agreement about the commercial use of some portion in the ground floor so we are not considering about the shop room.  But the OPs have agreed to hand over the entire 1^st and 2^nd floors of the new building to the complainant as owner’s allocation.  So, the OPs are bound to hand over possession of the owner’s allocation obeying the development agreement.  Considering all these aspects we are of the view that we shall direct the OPs to hand over possession of the owner’s allocation in complete habitable condition to the complainant strictly obeying the development agreement.  The OPs are bound to pay ₹8,000/- as litigation cost to the complainant as he is compelled to approach this Commission with his complaint to get it redressed.

             Hence, it is

ORDERED

                       That the Complaint Case No. CC/192/2020 be and the same is allowed in part against the Opposite Party No. 1 and ex parte against the Opposite Party No. 2.

            The Opposite Parties are directed to hand over possession together with a formal possession letter of the entire First and the Second Floors of the new building to the Complainant as owner’s allocation obeying the terms and conditions of the Development Agreement  signed on 02/07/2016 within 45 days from the date of this order.  The Opposite Parties are also directed to pay ₹8,000/- to the complainant as litigation cost within this period.

            If the Opposite Parties failed to comply with the above directives within this stipulated time period then a sum of ₹500/- per day will be imposed on them to pay to the complainant with effect from the date of this order till full and final compliance.

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

Dictated and corrected by me

            Member.