HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
- This appeal has been filed under section 15 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) challenging the order dated 16.11.2022 passed by the Learned Addl. District Consumer Disputes Redressal Commission, Rajarhat (New Town) ( in short, ‘the Addl. District Commission) in connection with complaint case No. CC/05/2017 corresponding to No. RBT/CC/128/2020.
- The respondent No. 1 being the complainant filed the complaint case praying for the following reliefs :-
“a) An order directing the Opposite party to handover one flat on the Second floor front side containing area 668 Sq. ft. and another flat on the Second floor back side containing area 652 Sq. ft. and one flat on the First Floor front side containing area 668 Sq. ft. and remaining portion containing area 128 Sq. ft. on the Ground floor of the building as per allocated share of the Complainant;
b) An order for directing the Opposite party to handover physical possession of the Garage measuring 10 X 10 = 100 Sq. ft. on the Ground floor of the building with its extra area at a rate of Rs.2,500/- (Rs. Two Thousand Five Hundred) only per Sq. ft.
c) An order for directing the Opposite party to pay monthly arrear and current Rent at a rate of Rs.5,000/- (Rs. Five Thousand) only per month to the Complainant since November, 2016 upto date of handover the physical possession of the Complainant’s allocated portion of the building to the Complainant;
d) An order for directing the Opposite party to pay Rs.3,00,000/- (Rs. Three Lac) only as compensation for harassment, mental agony and also for negligent act and conduction the deficiency in service;
e) An order for directing the Opposite Party to pay the Complainant a sum of Rs.70,000/- (Rs. Seventy Thousand) only as litigation cost.
f) An order for directing the Opposite Party to pay the Complainant at a rate of Rs.5,000/- (Rs. Five Thousand) only per month for delay of completion the construction work of the building within the stipulated period of 30 (Thirty) months from date of execution of the development Agreement.
g) All cost of the proceeding;
h) All other relief/ reliefs as entitled to get in law and equity.”
3. Notices were duly served upon the appellant and respondent No. 2 and they were contesting the case and filed their written version jointly denying the material facts.
4. Both the parties adduced their evidence in support of their case.
5. After hearing both sides and on perusal of the evidence and materials available on record, the Learned Addl. District Commission allowed the petition of complaint being No. RBT/CC/128/2020 and passed the order which is reproduced as under :-
“that the complaint case being No. RBT/CC/128/2020 is allowed on contest against the OPs with cost.
OPs are directed to hand over the possession of owner’s allocation as per terms and conditions of the agreement dated 14.02.2014 to the complainant within 2 months from this date of order. OPs are further directed to pay Rs.5,000/- per month from 14.02.2017 till handing over the owner’s allocation and to pay Rs.25,000/- as litigation cost.
The complainant is directed to refund the security deposit of Rs.1,10,000/- and pay Rs.1,50,000/- to the OP No. 4 towards outstanding dues of the garage at the time of receiving the possession.
Let a plain copy be given to the parties free of cost as per CPR.”
6. Being aggrieved by and dissatisfied with the said order the appellant has preferred this appeal.
7. Heard the Learned Advocate appearing for both the parties. The Learned Advocate appearing for the appellant has urged that the complaint case is not maintainable.
8. He has further urged that the Learned Addl. District Commission wrongly deducted Rs.1,90,000/- as enhanced amount from the security deposit of the appellant and respondent No. 2 instead of adding an amount of Rs.2,90,000/- as enhanced amount for extra area with the security deposit.
9. He has further urged that the respondent No. 1 / complainant is liable to pay security deposit of Rs.3,00,000/- and an amount of Rs.1,40,000/- for enhanced area of garage and balance consideration amount for garage is Rs.1,50,000/- i.e. total outstanding balance for garage is Rs.2,90,000/- and Rs.2,23,500/- for cost of extra work in the form of Kitchen interior, pallw colour, three toilets marble flooring i.e. respondent No. 1 / complainant is liable to pay total amount of Rs.8,13,500/-.
10. He has further urged that the complainant does not perform his duties. As such, the complainant / respondent No. 1 is liable for not getting the handover of the possession of the owner’s allocation. No one can get relief for his own fault.
11. He has further urged that the complainant / respondent No. 1 is not entitled to get Rs.5,000/- per month and litigation cost of Rs.25,000/- as respondent No. 1 / complainant himself is liable for inviting litigation. So, the appeal should be allowed and the impugned order should be set aside.
12. On the other hand, Learned Advocate appearing for the respondent No. 1 has urged that the appeal is not maintainable in law and is liable to be dismissed with exemplary cost.
13. Having heard the Learned Advocate appearing for the parties and on perusal of the record I find that it is an admitted position that the complainant / respondent No. 1 being the land owner entered into a development agreement on 14.02.2014 with the appellant and respondent No. 2 who are the partners of M/s Ramkrishna Construction, the promoting and developing House.
14. It is also an admitted position that the respondent No. 1 / complainant executed a registered development agreement and Power of Attorney in favour of the appellant and respondent No. 2 in respect of the land situated at F/J-18, Aurabinda Sarani, Jyangra Dakshin Math, P.O. Jyangra, P.S. Baguiati, Kolkata – 700 059 in order to construct a G+4 building therein.
15. The development agreement dated 14.02.2014, paragraph No. 4 discloses that the developer shall hand over the owner’s allocation to the owner within 30 months with a grace period of 6 months from the date of execution of development agreement by and between the parties, if the developer fails to hand over the same within the stipulated period, the developer shall pay Rs.5,000/- per month as demurrage charges. The said development agreement also discloses that the date of delivery of possession would be handed over on 14.02.2017 (30 months + 6 months grace period).
16. The evidence on affidavit filed by the complainant discloses that the appellant and respondent No. 1 did not hand over the possession of the owner’s allocation and could not complete the construction work within the said stipulated period.
17. The case of the appellant and respondent No. 1 is that they have handed over the owner’s allocation to the respondent No. 1 / complainant in the month of December, 2016 by issuing possession letter. But the appellant / respondent No. 2 did not produce any paper in support of their claim that the appellant and respondent No. 2 have handed over the owner’s allocation to the complainant and respondent No. 1 in the month of December, 2016 by issuing possession letter. In such a situation, I am of the view that the appellant / respondent No. 2 did not hand over the possession of the owner’s allocation to the respondent No. 1 / complainant till date.
18. It is also proved by evidence that the act of the appellant and respondent No. 2 developer in not delivering the owner’s allocation in time and not giving any assurance to the complainant till date with respect to the exact date of delivery of possession even after lapse of more than 5 years amounts to deficiency of service on their part.
19. In the result, I am of the view that the opposite parties are liable to pay Rs.5,000/- per month from the proposed date of delivery of possession till realization as the form of compensation.
20. The development agreement executed between the appellant and respondent No. 2 and the respondent No. 1 dated 14.02.2014 discloses that the complainant shall get 50% of the constructed area in the following manner :-
“On the 2nd floor: in between 700 sq.ft. more or less a residential flat in front side of the building and in between 700 sq.ft. – 750 sq.ft. more or less a residential flat back side of the building and on the first floor : rest portion of 50% share in the form of a residential flat in front side of the building. The developer shall provide one space 10X10 garage room to the owner @2,500 per sq.ft.”
21. It is in evidence that the complainant has paid Rs.1,00,000/- out of total consideration amount of Rs.2,50,000/- for the garage measuring 100 sq. ft. and ready to pay the outstanding amount of Rs.1,50,000/-. But the appellant and the respondent No. 2 charged an amount of Rs.1,50,000/- for extra area of the said garage.
22. The case of the appellant that the 56 sq. ft. area was enhanced for which the respondent No. 1 has to bear extra cost, I am of the view that if for certain reason the area of the unit in question is increased it would certainly result into increase in the cost of the same and, as such, the respondent No. 1 shall have to incur some further amount for the increased area. As such, I think that the complainant shall have to return the security deposit to the opposite parties after deducting the enhanced amount of Rs.1,90,000/-. Therefore, the complainant has to refund Rs.1,10,000/- towards security deposit. Therefore, on consideration of the evidence and materials of record I find that there is deficiency in service on the part of the appellant and the respondent No. 1 as they did not perform their part of duties. Since, the delivery of possession of the owner’s allocation has not been handed over after expiry of more than five years from the proposed date of delivery.
23. Under this facts and circumstances and on consideration of the materials on record it is found that the Learned Addl. District Commission properly considered the evidence and facts and circumstances of the case and finally arrived at the conclusion and passed the judgment which, according to me, calls for no interference by this Commission. As such, it is liable to be affirmed and the appeal is liable to be dismissed.
24. In the result, the impugned order dated 16.11.2022 passed by the Learned Addl. District Commission in connection with CC/05/2017 corresponding to RBT/CC/128/2020 is hereby confirmed.
25. The appeal is, therefore, dismissed.
26. There will be no order as to costs.
27. Let a copy of this order be sent to the Learned Addl. District Commission below at once.
