Date of Filing the complaint : 07 September, 2021.
Date of Final Order / Judgement : 17 December, 2024.
Mr. Dhiraj Kumar Dey, Hon’ble Member.
This case arises when Sri Shital Maity, hereinafter called as the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019 (the Act) against Sri Ashim Debnath, hereinafter called as the Opposite Party or OP, alleging deficiency in service on the part of the OPs for non-delivery of allocation in the newly constructed buildings.
Facts as stated in the complaint petition are that the complainant is the owner of a Bastu land measuring about 7 Cottah 13 Chittack 40 sq. ft. comprising in R. S. Dag No. 311 under R. S. Khatian No. 428, now L. R. Dag No. 323 under L. R. Khatian No. 3240 situated at Mouza Podra, J. L. No. 38, P. S. – Sankrail, District – Howrah. In order to develop his property the complainant entered into a registered development agreement on 05/08/2016 with the OP for construction of a multi-storied building thereon. The complainant also appointed the OP as the Constituted Attorney at that time which was also registered accordingly. Complainant stated that the OP got the building plan duly sanctioned by the authority on 16/12/2016 and the complainant handed over the vacant possession of the scheduled property to the OP on 12/02/2017. It is the complainant’s allegation that after receiving vacant possession and the sanctioned building plan the OP started construction of two G+4 storied building, Block ‘A’ and Block ‘B’. complainant stated that in the Block ‘A’ the total constructed area is 8000 sq. ft. and in Block ‘B’ the total constructed area is 3500 sq. ft. As per the development agreement the owner/complainant is entitled to get 40% of the constructed area, i.e. the complainant would get 4600 sq. ft. as the owner’s allocation. But, it’s the complainant’s allegation that the OP did not take any measure for delivery of owners share. After repeated demands the OP handed over only one flat in incomplete condititon of area 830 sq. ft. and 300 sq. ft. shop rooms to 3 tenants out of seven tenants in the Block ‘A’ building whereas he was entitled to get total 3200 sq. ft. as his owners share. Thus he had not given 2070 sq. ft. area as owner’s share in ‘A’ Block. It is his allegation that he has not got any portion as the owner’s share in ‘B’ Block though he was entitled to get 1400 sq. ft. area in the ‘B’ Block. So, the OP has not delivered a total of 3470 sq. ft. to the complainant as the owner’s allocation. His frequent requests were not fulfilled for which he sent a notice to the OP through his Ld. Lawyer on 09/07/2021 demanding owner’s allocated area from both the buildings, but this notice brought no result for which he filed this instant complaint on 07th September, 2021 praying:
(i) to direct the OP to hand over balance 2070 sq. ft. area to the complainant as the owner’s share;
(ii) alternatively, to direct the OP to pay ₹70,00,000/- for the ‘cost’ and compensation of complainant’s non-delivered portion;
(iii) to direct the OPs to pay ₹50,000/- for the complainant’s mental agony and harassment;
(iv) to direct the OP to pay ₹10,000/- as litigation cost and any other order or orders.
Complainant filed copies of (i) the registered Development Agreement dated 05/08/2016, (ii) registered Deed of Sale dated 12/07/2001, (iii) Land record in the form of Khatian No. 3240 and (iv) the letter dated 09/07/2021 sent to the OP through Ld. Lawyer along with postal receipt as annexure to the complaint petition.
Notice was served upon the OP, after admission, to appear and contest the case by filing his written versions. The OP did not appear nor did he file his written version despite receiving notice for which the case proceeded ex parte against the OP. Then the complainant filed his Evidence on Affidavit. Ultimately argument was heard in full from the complainant side and the complainant filed his Brief Notes on Argument. The OP did not take part in argument. During admission it was found that the complainant had filed an application under Section 148 of CPC for injunction on the suit property which was extended from the date of admission, i. e. from 13/09/2021 to the next date, 25.10.2021. On 25/10/2021 complainant did not file application for extension of ad-interim injunction, but on the next date, i.e. on 16/11/2021 complainant filed application for extension of ad-interim injunction which was put on hearing on the next date. Thereafter, the complainant filed prayer for extension of the ad-interim order on every occasion of the proceedings of this case and the extension of ad-interim order was allowed subsequently.
We have now come to the position to deliver the Final Order in this case. We have to decide:
(a) whether the complainant is a consumer under the OP in accordance with the C. P. Act, 1986;
(b) whether the OP is deficient in rendering proper service to the complainants;
and (c) whether the complainant is entitled to get relief(s) as prayed for.
Let us take these points together in our discussion to avoid repetition.
DECISION WITH REASONS
Factual matrix emerged from the complaint and the annexed documents:
It is the contention of the complainant that he, being the owner of the premises in R.S. Dag No. 311 under R.S. Khatian No. 428, now L.R. Dag No. 323 under L.R. Khatian No.3240, measuring about 7 Kathas 13 Chittacks 40 sq. ft., entered into a Development Agreement with the OP, Sri Ashim Debnath, on 05/08/2016 intending to develop his property by constructing multi-storied building to be constructed by the OP. According to the agreement owner/complainant would get 40% of the constructed area and the developer/OP would get remaining 60% of the constructed area. It was settled that that the owner/complainant would get possession of the owner’s allocation within three years of vacating the premises or receiving building plan sanctioned, which one would be later. Complainant alleged that the OP got the building plan sanctioned on 16/12/2016 and he vacated his suit property on 12/02/2017 for construction purpose. It is his allegation that the OP has constructed two buildings in the suit premises, one named as Block ‘A’ of 8000 sq. ft. and the other as Block ‘B’ of 3500 sq. ft.. Consequently the complainant was entitled to get total 4600 sq. ft. area. But the complainant alleged that, after repeated demands, the OP has given him a 830 sq. ft. flat and a 300 sq. ft. shop room to the three tenants out of seven tenants from the Block ‘A’ as the owner’s allocation . No space has been given to the complainant as owner’s allocation from the Block ‘B’. As a result the OP did not hand over total 3470 sq. ft. area as the owner’s allocation to the complainant though he repeated requested the OP. Finally, he sent a legal notice through his lawyer demanding delivery of remaining 3470 sq. ft. as owner’s share which could not bring any fruitful result for which he filed this instant complaint before this Commission praying as stated herein above.
Complainant has brought all his allegations in his evidence and in his B. N. A.
As the Opposite Party has not contested this case, so we have nothing in hand to counter or rebut the allegations brought forward by the complainant.
Findings:
We have scanned and scrutinized the complaint petition and its annexed documents, evidence of the complainant and his B. N. A. It is an admitted fact that the complainant entered into a Development Agreement with the OP on 05/08/2016 to construct multi-storied building in his own property. When we go through the development agreement we find that the complainant purchased this property in 2001 from the then owner Smt. Kamalabala Malik. It is stated in this agreement that the OP would construct a G+4 storied building out of which 40% of the sanctioned area would be handed over to the owner/complainant in complete habitable condition. But no specific allocation has been described in this agreement. It is also stated in the agreement that there was a 1300 sq. ft. RT shed in the suit premises which was occupied by seven tenants and the tenants would be accommodated within the owner’s 40% allocated area. In Clause 26 of this agreement it is stated that the the developer would construct G+4 storied building in two blocks and in the next Clause it is agreed that the developer/OP would deliver possession of the owner’s allocation first then the developer/OP would sale out his allocation to the intending purchaser. This agreement contains some other terms and conditions on which we are not going to discuss.
Complainant alleged that the OP constructed two buildings, one of 8000 sq. ft. named as Block ‘A’ and the other of 3500 sq. ft. named as Block ‘B’. It is the averment of the complainant that the OP got sanctioned building plan on 16/12/2016. Whether the plan was sanctioned for construction of two buildings or a single building is not clear as the complainant has not annexed copy of the sanctioned building plan, but the development agreement says in Clause-26 in Page-13 that the developer was going to construct G+4 storied building in two blocks. As the building plan has not been annexed, so we are in dark about the total constructed area. We are also in dark whether the OP has constructed the buildings obeying strictly the sanctioned plan or not and the complainant has not submitted any proof in this regard. But it is submitted that the OP/developer has handed over to the owner/complainant a 830 sq. ft. flat, on what floor it is not mentioned, and a 300 sq. ft. shop room to accommodate three out of seven tenants. According to the submission, the owner/complainant would get 4600 sq. ft. constructed area but actually have got 1130 sq. ft. area. His repeated requests/demands fell on deaf ear as the OP has not complied with the terms and conditions of the development agreement. Complainant has given a 7 Kathas 13 Chittack 40 sq. area to the OP for development and in return he got only 1130 sq. ft. area and this cannot be acceptable. Complainant has not pleaded to seek an independent Commissioner’s report to establish his claim on undelivered allocation.
The complainant has not annexed any copy of the Power of Attorney with his complaint petition. Another interesting point is noted that in the complaint petition the complainant signed as ‘Shital Maity’, but in the development agreement dated 05/08/2016 complainant signed as ‘Sital Maity’ (here ‘h’ is missing).
The complainant has not stated that there was a 1300 sq. ft. RT shed in his premises which was occupied by seven tenants. It is stated in the development agreement that it was the owner’s responsibility to vacate the tenants’ portion and to accommodate them after construction of the new building in the owner’s allocated area. Complainant alleged that only 300 sq. ft. shop room was handed over to the complainant where three tenants have been accommodated. Complainant/owner demanded ₹70,00,000/- in lieu of the non-delivered owner’s allocation, but he has not used a single word on how he would accommodate the remaining 4 tenants. Even the complainant has not annexed any document about the distribution of area of the three lucky tenants or the remaining four unlucky tenants.
Under these situations we think that we cannot provide any relief to the complainant relying on the present form of the complaint. Hence we think this complaint is liable to be dismissed for defects. However the complainant will be given liberty to file the complaint afresh after curing all defects stated herein above.
It is, therefore,
ORDERED
that the Complaint Case bearing No. CC/187/2021 be and the same is dismissed ex parte against the Opposite Party and with no cost.
However, the complainant will have the liberty to file his complaint afresh after curing all defects.
Both the parties are given liberty to get a free copy of this order.
Dictated and corrected by me
Member.
