Date of Filing: 10/07/2019

Date of Judgment: 27/09/2022  

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainant, Sri Pradip Kumar Das, under section 12 of the C.P Act, 1986 against the opposite party  namely Sri Swapan Sardar, alleging deficiency in service and unfair trade practice on his part.

          The case of the complainant in short is that he being the sole owner in respect of the property described in Schedule A of the Development Agreement dated 3.8.2016 entered into the said agreement with the O.P to raise a multistoried building of which the owners’ allocation was , as per the said agreement entire ground floor i.e a self contained flat consisting of 2 bed rooms, 2 bath room and one dining cum kitchen measuring an area of 51.408 sq. meters and also entitled to get Rs.4 lac by way of premium money from the O.P developer. As per the Development agreement entered into between the parties dated 3.8.2016, the O.P was to complete the new building within a period of 24 months from the date of obtaining the sanctioned building plan from the KMC. Out of Rs.4 lac amount as agreed to be paid , the O.P only paid Rs.2,50,000/- but has not paid the rest amount of Rs. 1,50,000/-. The O.P obtained sanctioned building plan on 21.2.2017. The complainant/owner also executed a power of attorney but the O.P developer failed and neglected to complete the construction of the building. The complainant was shifted at a rental accommodation and was paying the monthly rental of Rs.4000/- on and from the month of November 2016. The O.P failed and neglected to pay the monthly rent as per agreement of the said tenanted premises since March, 2019. So, complainant was ousted from the rental accommodation Complainant informed his ousting from the rental accommodation to the O.P who failed to provide any alternative accommodation and thus in a compelling circumstances complainant took the possession in the ground floor of the schedule property which was mostly in unfinished condition. Complainant requested the O.P to complete the construction of the said unfinished work to make it habitable but O.P paid no heed and thus complainant has also lodged G.D dated 27.5.2019 at Parnasree P.S against the O.P. Complainant is entitled to the balance amount of Rs. 1,50,000/- which has not been paid by the O.P. The construction job is yet to be completed and thus the present complaint has been filed by the complainant praying for directing the O.P/developer to complete the construction work of the owner’s allotted portion in the building in terms of the development agreement dated 3.8.2016 and to issue a letter of possession and also the completion certificate, to direct the O.P to pay balance amount of Rs. 1,50,000/- together with interest @18 % p.a , to appoint a Civil Engineer to ascertain the extent of work done by the O.P, to pay compensation of Rs.2 lac and litigation cost of Rs. 20,000/-.

            On perusal of the record it appears that inspite of service of notice, no step was taken by the O.P and thus case was directed to be proceeded exparte. During the course of the trial complainant by filing a petition prayed for treating the complaint petition as affidavit-in-chief which was considered and allowed and thus ultimately argument was heard. Complainant has also filed BNA.

            So, the only point requires determination is whether the complainant is entitled to the relief as prayed for?

Decision with reasons

            In order to substantiate his claim, the complainant has filed copy of the development agreement entered into between the parties on 3.8.2016, wherefrom it appears that as per owners’ allocation complainant was entitled to the flat as claimed by the complainant and described in Schedule B of the said agreement and a sum of Rs.4 lac which according to the complainant only Rs. 2,50,000/- has been paid and the rest amount has not been paid by the O.P.

            Even though it is apparent that complainant has already taken possession of the flat in the ground floor as agreed in the development agreement but according to him, it was in incomplete condition. However, he has not stated the details of incomplete work in the said flat. He has neither prayed before this Commission during the pendency of the trial for appointment of an Engineer Commissioner to bring before this Commission, the nature of incomplete work. In such a situation, since complainant has already been residing in the said premises on and from May 2019, in the absence of any particulars and the nature of construction work to be done, in our view the direction if any in this regard would be vague. However, since the complainant has not been issued a possession letter and completion certificate and as it is the case of the complainant that O.P already had obtained sanctioned building plan, he is entitled to the possession letter and completion certificate and also the balance amount of Rs. 1,50,000/- as before this Commission no contrary material is forthcoming to counter or rebut the claim of the complainant. 

            Further, as it is specific case of the complainant that there has been delay in delivery of possession and so he was compelled to take the possession of the ground floor of the schedule property even though that was incomplete, he is entitled to compensation for the same and as such we find that compensation of Rs.75,000/- will be justified along with litigation cost of Rs. 12,000/-.

Hence,

            ORDERED

CC/335/2019  is allowed exparte.

The O.P is directed to issue letter of possession and completion certificate of the schedule property as per the Development Agreement dt. 03.08.2016 in favour of the complainant within 3 months from this date.

He is further directed to pay balance amount of Rs. 1,50,000/-, compensation of Rs. 75,000/- and litigation cost of Rs. 12000/- to the complainant within the aforesaid period of 3 months failing which the entire amounts shall carry interest  @8% p.a till realization.