Date of filing : 27.03.2018
Judgment : Dt.14.11.2018
Smt. Sashi Kala Basu, Hon’ble President.
This complaint is filed under Section 12 of the Consumer Protection Act, 1986 by the Complainant namely Sankar Prasad Laha and Raj Sekhar Laha against opposite party namely Saugata Dey alleging unfair trade practice on his part.
Complainants’ case in brief is that they being the owners as mentioned in the schedule of the complaint petition entered into a development agreement with the OP on 15.8.2016.
In terms of that development agreement, developer had undertaken to hand over the possession of the flat and / or owners’ allocation to the Complainants within 18 months from the date of commencement of the work of building in terms of development agreement. But, developer with some ill motive did not start the construction work in the schedule property and also failed and neglected to provide the rent for the purpose of temporary accommodation to the Complainants. Complainants had executed registered power of attorney in favour of the developer Saugata Dey on 17.08.2016. But as opposite party failed and neglected to start the construction work, Complainants cancelled the development agreement and informed the developer in writing by letter dated 25.09.2017. They have also revoked the power of attorney executed in favour of OP and he was informed by letter dt.20.12.2017. Opposite party in spite of repeated requests has not handed over the key of the scheduled premises to the Complainants. Neither he is paying the rental charges for alternative accommodations. Thus, the developer is guilty of unfair trade practice and as such present complaint is filed by the Complainant praying for directing the developer to hand over the key of the schedule property, to hand over the original indenture dated 6.4.1990, to pay Rs.3,00,000/- for alternative house rental charges, to pay Rs.3,00,000/- for suffering mental pain and agony and litigation cost of Rs.50,000/-.
OP did not take any step in spite of service of notice, so vide order dated 26.06.2018, case was fixed for ex-parte hearing.
Along with the Complaint petition, Complainant has annexed documents such as copy of development agreement, copy of power of attorney, cop-y of revocation of general power of attorney, copy of police complaint , a copy of letter sent to OP and copy of complaint petition filed before the Ld. Executive Magistrate.
During the course of evidence, Complainants filed a petition for treating the complaint petition as affidavit-in-chief. Thereafter, argument has been heard on behalf of the Complainants.
So, the points require determination is :-
- Whether the opposite party has been guilty of doing unfair trade practice?
- Whether the Complainants are entitled to the reliefs as prayed for?
Decision with reasons
Point No.1 and 2
Both these points are taken up together for discussion for the sake of convenience and in order to avoid repetitions.
At the very outset, it may be pertinent to point out that the relevant dates in this case are very material to adjudicate the dispute. The development agreement was executed between the parties on 15.08.2016. The agreement indicates that the parties agreed that the developer will construct the building as per the building plan or revised thereof within a “period of 18 months from the date of commencement of work and such period may be extended mutually”.
So, according to the said recital of the agreements, developer was under obligation to complete the work within a period of 18 months.
It is claimed by the Complainants that as the developer failed and neglected to raise the construction as per terms and conditions of the agreement, they cancelled the development agreement and OP was informed by letter dated 25.09.2017. The copy of the said deed by which development agreement has been cancelled, has not been filed, but, it has to be before the date of that letter i.e. 25.09.2017. So, much before the agreed period, development agreement has been cancelled. Even if the date is counted from the date of development agreement, the period of 18 (eighteen) months would have expired in February, 2018. The power of attorney executed in favour of OP was also revoked on 18.12.2017 by a deed of revocation. So, if much before the period agreed for construction, Complainants cancelled the agreement and revoked the power of attorney then how they could expect the developer to carry out and complete the construction work.
It may be pointed out that the terms of development agreement in page 21 provides that “In the event of the owners committing breach of any of the terms and conditions herein contained or delayed in delivery of possession of the said premises as hereinbefore stated the developer shall be entitled to and the owners shall be liable to pay such losses and compensations as shall be settled between the parties provided. However, if such delay shall continue for a period twelve months then and in that event in addition to any other right which the developer may have against the owners, the developer shall be entitled to sue to owner for specific performance of the agreement or to rescind or cancel this agreement and claim refund of all moneys paid and/or incurred by the developer with interest”.
So, as per the above mentioned terms, it is the developer who could sue if there was delay and if it continued for twelve months.
The cause of action in favour of the Complainant could have arisen only on the expiry of the period as agreed but when the Complainants themselves have cancelled the development agreement and r evoked the power of attorney, case of the Complainant that OP violated the terms and is guilty of un fair trade practice, cannot be accepted.
These points are thus answered accordingly.
In the result, case fails.
Hence
Ordered
CC/160/2018 is dismissed ex-parte without cost.
