Date of Filing: 01.11.2021

Date of Judgment: 03.01.2023

Mrs. Ashoka Guha Roy (Bera), Hon’ble Member

The present complaint case has been filed U/S 35 read with section 38 & 39 of the Consumer Protection Act by the land owner, Mrs. Mira Thomas, herein mentioned as the complainant against the Developer Company herein mentioned as opposite party alleging deficiency of service on the part of the developer in a consumer dispute relating to housing construction.

The complainant’s case in brief is that the petitioner is an aged widow having no ostensible source of income except the landed property which is the subject matter of the present case. The complainant and her son Mr. Prakash Thomas being the profoma opposite party herein acquired the subject property measuring an area of 4 cottahs 2 chittaks 250 sq. ft more or less by virtue of a registered Kobala dated 23.05.2014 while possessing the said land the complainant /s entered into a registered Development Agreement dated 4th April 2015 with the Opposite Party No. 1,2,3,4 &5/Developer for development of the said plot of land by construction of a multi (three) storied building for residential purpose and in terms of the said agreement, it was decided that the landowner will get 50% ratio of the total Floor Area Ratio(F.A.R) as per sanction plan of K.M.C. which includes I) Ground floor front side ii) First floor back side and iii) Second floor Front side of the said proposed three storied residential building together with undivided proportionate share in the common parts and facilities and proportionate share in the imperative landed property, as the owner’s allocation along with a sum of Rs.9,00,000 and opposite parties had paid adjustable Rs. 5,00,000/- (Rupees Five lac) only out of the said sum of Rs.9,00,000 to the landowners at the time of signing agreement by Cheque being no. 128802 dated 23.03.2015 drawn on SBI Shakespeare Sarani Branch and remaining balance amount of Rs. 4,00,000/-(Rupees Four lacs) shall be paid by the developer after casting of first floor of the said newly proposed building, which has not been paid till date. As per the said agreement it was also agreed between the parties that the developer will complete the construction work and deliver the possession within 18 months. That the complainant further states that the opposite parties started the construction work very lately intentionally even after the expiry of the stipulated period of 18 months as mentioned in the aforesaid development agreement that till date they have not produced and/or hand over any copy of said Sanction Plan to the petitioners/complainants/ owners on various pretext even after so many requests made to them and even after the execution of the agreement failed to complete the schedule work. It was also mentioned that if the developer does not succeed in completion of the building then the developer will have to pay Rs. 4000/- per month to the owners as penalty for a period of consecutive three months and also after that if the developer does not succeed in completion of building then the said agreement will be cancelled and 50% of the total security money will be forfeited by the owners. Inspite of all sincere co-operation on the part of the complainant, and repeated request the opposite party / developer company turned a deaf ear and failed to perform their part of the obligations as agreed upon. Finally the opposite party/ developer refused to hand over the owner’s allocation rather threatened with dire consequences. By reasons of such inaction and wilful negligent act on the part of the Opposite Party Developers the complainant has been compelled to approach this Commission with prayer for several reliefs viz 1.To handover, the entire share of the Owner’s allocation along with C. C. after completing total construction works as per specification mentioned in the registered development agreement dated 4th April 2015 in respect of the schedule B portion along with proportionate share in the land and all other common facilities and easement rights mentioned in the schedule A of the aforementioned agreement. 2. To pay the remaining balance amount of Rs. 4,000000/- which was settled and promised to be paid by the Op/Developers to the complainant upon casting the first floor. 3.To allow an amount of Rs. 10,0000 towards the litigation cost and compensation for undue harassment, wilful negligence and deficiency in service and unfair trade practise & breach of trust and unnecessary prolong delay by the developers and such other relief or relief/s.

On the basis of the said facts, complaint was admitted and notices served upon the ops. It appears from the order sheet that despite proper service of notice the opposite parties/Developer did not care to appear before the Commission and did not file any Written Version within the stipulated period or not taken any other step. As such the case was fixed for exparte.

Complainant filed an application for treating the complaint petition as their Examination-in-chief wherein she recapped the facts stated in the petition of complaint. The complainant also filed Brief Notes of Argument.

 In order to substantiate her claim, the complainant files the following documents.

I. Registered Development Agreement dated 4th April,2015

2. Sale Deed of the Landed Property

 The case is taken for ex-parte hearing. Perused all documents and heard the Ld. Advocate for the complainant. The Ld. Advocate appearing for the complainant submitted that even after expiry of the stipulated period as per the Development agreement, the Developer did not deliver the possession of the entire owner’s allocated portion and did not even pay the balance amount of Rs. 4,00,000/- to the complainant. Under such compelling situation, the complainant has sent advocates’/legal notice dated 21st day of January, 2021. But the opposite party/developer even after receiving the legal notice did not bother to reply against the said notice and remained silent. As per the said agreement 4th April, 2015 it was also decided by and between the parties that in default the opposite party/developer will pay Rs. 4000/- per month to the owners as penalty for a period of consecutive three months and even after that if the developer does not succeed in completion of building then the said agreement will be cancelled and 50% of the total security money will be forfeited by the owners. But the opposite party did not perform their obligation as per the said agreement. The opposite party was all along negligent and has neither taken any responsibility to complete the construction work nor handed over the possession of owner’s allocation and provided the completion certificate from the competent authority.

            In this present case the ops. did not take part in hearing. Neither any W/V has been field on their behalf. Hence, the averment made by the complainants remained uncontroverted and unchallenged.

DECISION WITH REASON

The materials on record clearly indicates that the complainants are consumers within the meaning of Consumer Protection Act 2019, as she has hired the service of the opposite party on her land in the form of consideration in relation to housing construction of the proposed multistoried building.

So now the only points required determination is whether there was any deficiency in service on the part of the Op/ developers and whether the complainant is entitled to the relief as prayed for.:

On a careful scrutiny of the documents and the case record placed before us it is revealed that the parties to the instant case entered into an agreement for development which is a registered Development Agreement and the terms and conditions specified therein are always clear and unambiguous. It was also the bounden duty of the developer party to get the building completed at their own cost within the stipulated period as specified in the Development Agreement dtd.4th April,2015 and to handover the agreed 50% share of the building as owner’s allocation portion in a complete habitable in all respect for user within 18 months after obtaining sanction plan from the appropriate authority. It also appears that the developer failed to pay the remaining balance amount of Rs. 4,00,000/- as settled in the agreement dated 4th April, 2015,furthermore the developer has failed to handover the possession within the stipulated time, and alternatively failed to pay a sum of Rs. 4000/- per month till date. We therefore come to the conclusion that in every step there is deficiency of service and intentional latches on the part of the opposite party /developer and due to such willful negligent act and prolonged delay by the opposite party/developer, the complainant has suffered huge loss, unnecessary harassment, faced inconvenience, hardship and mental agony.

Considering the facts and circumstances of the case, we think  payment of compensation of Rs.10,000/-  in favour of the complainants will meet the ends of justice. As the situation compelled the complainants to file the instant case,

Hence,

              ORDERED

 CC/529/2021 is allowed ex-parte with the following directions:

i) The opposite party/Developer is directed to deliver peaceful vacant possession of the entire owner’s allocation being 50% ratio of the total F.A.R.as per sanction of the K.M.C. which includes I) Ground floor front side 2) First floor back side and 3) Second floor Front side of the newly constructed three storied residential building together with undivided proportionate share in the common parts and facilities and proportionate share in land in respect of Premises No.136 &136A, Ram Mohan Roy Road, P.S.Behala,Kolkata-700008 in fully habitable condition in all respect as mentioned in the Registered Development Agreement dated 04.04.2015 entered into by and between the parties therein within 60 days from the date of communication of this order.

ii) The opposite party/Developer is directed to obtain completion certificate in favour of the Landowners form the K.M.C. and hand over the same to the complainant within 60 days from the date of communication of this order.

Iii) The opposite party/developer is directed to pay the balance amount of Rs. 4,00,000/- to the complainant as settled in the registered Development Agreement dtd 4th April,2015within 60 days.

iv) The opposite party/developer is also directed to make payment of Rs. 10,000/- towards the litigation cost to the Legal Aid Fund of this commission, since the petitioner/complainant has been provided with Advocate from the Legal Aid Panel.

v) The opposite party No.1,to 5/developer is also directed to make payment of Rs. 10,000/-  to the complainant as compensation for his mental agony and harassment for non-delivery of possession of the owner’s allocation.

vi) The above payments must be paid within 60 days from the date, I.D. the entire amount (4,00,000/- + 10,000+10,000) shall carry interest @ 10% p.a. from date till its realisation.