DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
North 24 Pgs., BARASAT
C.C. No./158/2021
Date of Filing Date of Admission Date of Disposal
23.08.2021 17.11.2021 11.06.2024
Complainant/s:- | Smt. Gopa Ghosal, W/o Sri. Parimal Kanti Ghosal, Residing at Ghosal Para Road, P.O. & P.S. – Barasat, Kolkata – 700 124. -Vs- |
Opposite Party/s:- | Sri. Santanu Chakraborty, Son of Tapan Kumar Chakraborty, Residing at BF-2134, Sector – I, Salt Lake City, P.O. – CC Block, P.S. – Bidhannagar (North), Kolkata – 700 064, District – North 24 Parganas. |
P R E S E N T :- Sri. Daman Prosad Biswas……….President.
:- Sri. Abhijit Basu…………………. Member.
JUDGMENT /FINAL ORDER
Complainant above named filed the complaint U/s 35 of the Consumer Protection Act, 2019 against the aforesaid Opposite Parties praying for direction to finish she unfinished work, to provide completion certificate, to pay Rs. 5,00,000/-, litigation cost amounting to Rs. 1,00,000/- and other reliefs.
She alleged that she being she owner of the land mentioned in the schedule ‘A’ of the complaint entered into a registered development agreement with the O.P on some certain terms and conditions. She also executed one registered development power of attorney dated 23/12/2015 in favour of the O.P.
As per the terms and conditions of aforesaid agreement, Complainant is entitled to get 40% of the constructed area in the G+3 storied building excepting any portion in the first floor.
As per terms of clause 10.3 of the aforesaid agreement O.P is under obligation to complete the work of construction within 18 months along with grace period of 6 months from the date of starting of the construction work.
Building plan was sanctioned by the Barasat Municipality 1 by 27/10/2016 but Opposite Party deliberately and detrimentally failed to complete the entire work of construction within such stipulated period of time. O.P failed to apply for obtaining the completion certificate from the concerned municipality.
Complainant admits that O.P delivered the physical possession of the flat within the owner’s allocation but the area of the said flat is much less than that of area mentioned in the 2nd schedule of the said development agreement. O.P also failed to deposit the amount of Rs. 5,00,000/- to the Complainant as per aforesaid development agreement.
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Complainant sent a legal notice on 29/09/2020 to the O.P and requested him to take appropriate measure to complete all the unfinished work of construction. O.P sent a reply on 21/10/2020 through her Ld. Advocate Mr. Partha Pratim Bishnu and admitted the allegation of the Complainant and further stated that due to lack of manpower, machineries, materials and due to COVID-19 he failed to install the lift and undertook that he will complete the said work within next three months. But he did not comply the same.
Lastly Complainant sent another legal notice to the O.P through her Ld. Advocate Mr. Bhaskar Roy and requested the O.P to take appropriate measure for completion of unfinished work.
O.P sent a reply through her Ld. Advocate Mr. Basudeb Biswas and admitted the allegation of the Complainant and further stated that due to lack of manpower, machineries, materials and due to COVID-19 he failed to complete the pending work and further stated that he will complete the pending work.
Hence, the Complainant filed this case.
O.P appeared in the record and filed the W/V and denied the entire allegations made in the petition of complaint contending interalia that the case is not maintainable, case is barred by law of limitation and allegation is vague and improper.
He further stated that it is not a fact that O.P deliberately and detrimentally failed to complete the entire work of construction within the stipulated period of time. He further stated that it is false that the area of the Complainant is much less than that of the area mentioned in the 2nd scshedule of the development agreement. He also stated that it is false that O.P failed to deposit the amount of Rs. 5,00,000/- in favour of the Complainant as per aforesaid development agreement. One Arijit Ghosal, S/o Gopa Ghosal i.e. she son of Complainant received the possession letter after satisfaction about the measurement of area on 26/01/2020 on behalf of the Complainant.
On 10/02/2020 said Arijit Ghosal received Rs. 4,00,000/- out of Rs. 5,00,000/-. Completion certificate is under process of the concerned municipality i.e. Barasat Municipality. He completed all the construction work as per development agreement except installation of lift and underground water tank due to lack of men and material due to COVID-19. He prayed for dismissal of the case.
TRIAL
During Trial Complainant filed affidavit-in-chief. O.P filed questionnaire and Complainant filed answer.
O.P filed affidavit-in-chief. Complainant not yet filed any questionnaire.
DOCUMENTS
Complainant filed copy of following documents at the time of filing of her complaint which were verified at the time of shearing argument:-
- Copy of registered development agreement dated 21/12/2015…..1 set…..xerox.
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- Copy of registered development power of attorney dated 23/12/2015…1set…Xerox.
- Copy of Licensed deed of a house dated 01/03/2016….1 set…Xerox.
- Copy of reply issued by Advocate Partha Pratim Bishnu dated 21/10/2020….xerox.
- Copy of Advocate’s letter issued by Ld. Advocate Mr. Bhaskar Roy on behalf of Complainant…..xerox.
- Copy of reply issued by Advocate Basudeb Biswas dated 27/01/2021.
- Copy of document regarding market value of apartment.
O.P did not file any document.
BNA
Complainant filed BNA. O.P filed BNA.
Decisions with Reasons:-
We have heard the Ld. Advocate for the Complainant at length. Perused the petition of complaint, W/V filed by O.P, documents filed by the Complainant, affidavit-in-chief filed by the Complainant including questionnaire and answer, affidavit-in-chief filed by the O.P, BNA filed by the Complainant and BNA filed by the O.P.
We find that Complainant corroborated her allegation in the affidavit-in-chief. O.P put questionnaire and Complainant gave reply but we do not find any material contradiction.
O.P also filed affidavit-in-chief. No questionnaire was filed on behalf of the Complainant against the said affidavit-in-chief.
During hearing of argument Ld. Advocate for the Complainant argued that O.P not yet completed the work as per development agreement. He not yet issued any completion certificate in favour of the Complainant and not yet paid the money as per the aforesaid agreement.
Hence, the Complainant filed the case praying for aforesaid reliefs.
On the date of hearing argument O.P was absent without any steps. Accordingly we failed to hear the O.P.
On perusal of copy of development agreement dated 22/12/2015 we find that O.P was agreed to give 40% of the constructed area in favour of the Complainant.
In she aforesaid agreement it has mentioned that Complainant will get a sum of Rs. 3,00,000/- from the O.P at the time of execution of agreement and a sum of Rs. 2,00,000/- will be payable by the O.P to the Complainant at the time of delivery of possession.
On perusal of the said document we find that on the date of execution of the agreement O.P paid Rs. 1,50,000/- in favour of the Complainant by cash and also paid Rs. 1,50,000/- in favour of the Complainant by cheque. O.P did not file any document in support of the fact that he paid the remaining amount of Rs. 2,00,000/- in favour of the Complainant. So, it is clear before us that Complainant is entitled to Rs. 2,00,000/- from the O.P as per the aforesaid development agreement dated 22/12/2015.
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Complainant alleged that O.P not yet completed the unfinished work till date. O.P in his W/V did not state clearly that he completed the unfinished work.
We find from the reply issued by Ld. Advocate on behalf of the O.P dated 21/10/2020 that due to some unavoidable circumstances he could not complete the installation of lift and plastering work of common stair and lift, space, shed of rooftop. O.P could not file any document in support of the fact that he completed the aforesaid unfinished work.
We also find from the reply issued by Ld. Advocate on behalf of the O.P dated 27/01/2021 that he could not complete the installation of lift, plaster work of the inner wall of staircase, lift cage and she adjustment wall as well as installation of lift and water storage tank in the Ground floor.
So it is clear before us that O.P not yet completed the unfinished work till date.
On perusal of affidavit-in-chief of the O.P we find that he stated that he has done all the construction work within the stipulated period of time except installation of lift due to lack of manpower and material and COVID-19.
So, it is clear before us that O.P not yet completed the unfinished work till date.
On perusal of record we find that Complainant is the consumer and O.P is the service provider. The aforesaid act which done by the O.P is nothing but deficiency in service.
Having regard to the aforesaid discussion, we are of the firmed view that Complainant has able to established her grievance by sufficient documents beyond reasonable doubt and she is entitled to reliefs as per her prayer.
In the result, present case succeeds.
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Hence,
It is
Ordered:-
That the present case be and the same vide no. CC/158/2021 is allowed on contest against the O.P with cost of Rs. 5,000/- (five thousand) to be paid by O.P in favour of the Complainant.
O.P is directed to complete the unfinished work to the satisfaction of the Complainant within 45 days from this day failing which Complainant shall have liberty to put the order into execution.
O.P is further directed to pay Rs. 2,00,000/- (two lakhs) in favour of the Complainant as per aforesaid Development Agreement dated 21/12/2015 within 45 days from this day failing which Complainant shall have liberty to put the order into execution.
O.P is further directed to provide completion certificate in favour of the Complainant within 45 days from this day failing which Complainant shall have liberty to put the order into execution.
O.P is further directed to pay Rs. 1,00,000/- (one lakh) in favour of the Complainant as compensation for her harassment, mental pain and agony within 45 days from this day failing which Complainant shall have liberty to put the order into execution.
Let a copy of the order be supplied to both he parties free of cost as per CPR, 2005.
Dictated and Corrected by me
President
Member President
