DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C.C. No. 109/2021

     Date of Filing                 Date of Admission            Date of Disposal

      12.04.2021                        01.09.2021                        17.05.2024

P R E S E N T               :- Sri. Daman Prosad Biswas……….President.

                                       :- Sri.  Abhijit Basu…………………. Member.

JUDGMENT/FINAL ORDER

          Complainant above named filed this complaint under Section 34/35 of the Consumer Protection Act, 2019 against the aforesaid Opposite Parties praying for direction to the Opposite Parties to hand over the possession of the building on existing condition at the earliest and to declare that the termination of said development agreement as valid. Compensation towards the cost imposed by the Hon’ble State Consumer Disputes Redressal Commission in C.C. case no. 686/2017, further compensation amounting to Rs. 10,00,000/-, damage amounting to Rs. 75,00,000/-, cost of the case amounting to Rs. 5,00,000/- and other reliefs.

          They alleged that O.P No. 1 is the developing concern and O.P No. 2 is the proprietor of the aforesaid O.P No. 1. Complainants with an intention to develop and construct a building on his property entered into a development agreement with the Opposite Parties.

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          Complainants are the owner of 3 Cottah (5 decimal) land together with a two-storied building standing thereof, more-fully described in the schedule of the petition of complaint.

Srabani Basu, being the predecessor of the Complainants hired a service of housing construction by executing a register development agreement with the Opposite Parties for making construction of a multi-storied building consisting several numbers of flats, shops and garage therein as per sanctioned plan of Panihati Municipality which was registered at the office of A.D.S.R. Sodepur, North 24 Parganas vide Deed No. 01568 of 2015.

As per said development agreement, Complainants being the land owner appointed, nominated and constituted the Opposite Parties as true and lawful attorney vide Power of Attorney being no. 01569 dated 17/03/2015.

As per aforesaid development agreement dated 17/03/2015 Opposite Parties agreed to hand over three numbers of self-contained residential flat is measuring more or less 560 sq.ft. super-built up area on the Ground Floor, 1^st Floor and 2^nd Floor of the multi-storied building. After the death of Sarbani Basu further supplementary agreement was prepared and previous agreement dated 17/03/2015 was modified and Opposite Parties agreed to pay a sum of Rs. 4,85,000/- to the Complainants and O.Ps paid Rs. 3,00,000/- and further agreed to pay the remaining amount of Rs. 1,85,000/- at the time of roof-casting of the 1^st Floor of the proposed multi-storied building.

Opposite Parties were also agreed to pay Rs. 5,000/- per month as rent to the Complainants till delivery of owner’s allocation in the proposed multi-storied building.

Opposite Parties were agreed to appoint an architect on behalf of the owners within six months from the date of execution of the said agreement for sanctioning the building plan from the competent authority at its own cost and thereafter construct the multi-storied building without creating any financial or other liabilities to the Complainant within 24 months from the date of obtaining sanctioned plan.

In the said development agreement dated 17/03/2015 and development power of attorney, Opposite Parties / Developer cunningly mentioned about 100 sq.ft. R.T shed by his the then conducting advocate without the knowledge of owners and behind their back make it sign by Sarbani Basu but actually in the

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suit land there was a two-storied building which has been demolished by the developer / Opposite Parties and has enjoyed the sale proceed of the building materials solely depriving the owners.

As per said development agreement Opposite Parties were agreed to make construction as per the plan duly prepared by the architect on behalf of the owners from the date of agreement. But 5 years 10 months had already been elapsed from the date of execution of the aforesaid development agreement but unfortunately Opposite Parties are deliberately failed and neglected to perform his contractual obligation. Hence, the Complainants filed this case.

Case is running ex-parte against the Opposite Parties vide order no. 09 dated 08/09/2022.

TRIAL

          During Trial Complainant filed affidavit-in-chief.

DOCUMENTS

          At the time of filing this complaint, Complainant filed the following documents:-

1. Copy of Deed No. 1208 of 1975….1 set.
2. Copy of development agreement dated 17/03/2015….1 set.
3. Copy of supplementary agreement…1 set.
4. Copy of receipt of Panihati Municipality….1 sheet.
5. Copy of money receipt of WBSEDCL (3 copies)
6. Copy of bill of WBSEDCL…1 set.
7. Copy of Aadhar Card of Sarbani Basu…1 sheet.
8. Copy of Final Order issued by Hon’ble S.C.D.R.C…3 pages.
9. Copy of death certificate of Sarbani Basu…1 sheet.
10. Certificate issued by Executive Officer Panihati Municipality dated 23/12/2019.
11. Copy of letter of Nripesh Kumar Basu (Complainant No. 1 dated 09/11/2020).
1015.  

          Complainant filed BNA.

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Decisions with Reasons:-

          We have carefully gone through the aforesaid documents. We have heard Ld. Advocate for the Complainant at length. We have carefully gone through the petition of complaint filed by the Complainant, affidavit-in-chief filed by the Complainant.        

          We have also carefully gone through the affidavit-in-chief filed by the Complainant. Aforesaid affidavit-in-chief is nothing but unchallenged testimony and we do not find any reason to disbelieve the same.

          In the present case Opposite Parties not yet appeared nor filed W/V, accordingly we do not get any chance to hear them on the point of controversy. In this situation, we have no other alternative but to believe the affidavit-in-chief filed by the Complainant.

          Placing reliance upon the affidavit-in-chief by the Complainants, documents filed by the Complainants and materials available in the case record, we have no hesitation to came to the conclusion that one development agreement was prepared in between the Complainants and Sarbani Basu. Said Sarbani Basu is the wife of Complainant No. 1 and mother of Complainant No. 2 and 3. We find from the record that aforesaid Sarbani Basu has expired on 12/05/2019 and Complainant filed Death Certificate issued by competent authority and Complainants as a legal heirs steps into the sue in the aforesaid agreement.

          On perusal of record we find that aforesaid development agreement was executed on 17/03/2015 and Complainant filed this case on 26/04/2021. At the time of filing of this complaint, complainant alleged in para no. 13 of petition of complaint that 5 years and 10 months approximately have passed from the date of execution of the aforesaid development agreement but Opposite Parties deliberately failed and neglected to perform its contractual obligation. So it is clear before this Commission that Opposite Parties not yet started the development work in the aforesaid project.

          Complainants further alleged that in the development power of attorney Opposite Parties cunningly mentioned that 100 sq.ft. R.T. shed was there but actually there was a two storied building and Opposite parties demolished the same and took the sale proceeds of the building materials.

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          On perusal of development power of attorney dated 17/03/2015 we find that in the schedule of the said document it has mentioned that one R.T. shed structure measuring 100 sq.ft. was there. Complainant alleged that there was a two storied building over the aforesaid landed property. We failed to understand as to why the existence of aforesaid two storied building not yet been noted over the aforesaid development power of attorney. Sarbani Basu put her signature over all the pages. So it was her knowledge that existence of two storied building not yet noted over the said document.

          We have also carefully gone through the development agreement, we also find that over the said document in page no. 36 (first schedule above referred to) it has mentioned that R.T. shed structure measuring 100 sq.ft. was situated over the aforesaid land relating to development project but Complainant did not mention over the petition of complaint about the R.T. shed of 100 sq.ft. We failed to understand as to why the Complainants are silent about the entry of aforesaid fact in the development agreement.

          On perusal of record we find that aforesaid Sarbani Basu had filed a complaint before the Hon’ble S.C.D.R.C in the year 2017 against the aforesaid Opposite Parties alleging deficiency in service and prayed for direction upon the Opposite Parties for handing over the owner’s allocation as per agreement, to pay dues rent and other reliefs. We find that Hon’ble S.C.D.R.C disposed the said case by passing Final Order dated 27/12/2018.

          We also find that allegation of the present case and allegation mentioned in the aforesaid complaint before Hon’ble S.C.D.R.C are almost same and we find Hon’ble S.C.D.R.C in complaint case no. C.C./686/2017 dated 27/12/2018 pleased to pass the following order:-

“In view of the above discussion, we therefore come to the conclusion that the ops. have deficiency in service as they did not handed over the possession of the said three flats as per the agreement dated 17.03.2015 and as they did not make payment of rest of Rs. 1,85,000.00/- and arrear of electricity bill as well as municipality tax amount and did not act as per the supplementary agreement dated 19.03.2015 and

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did not paid the monthly rent after one year. As such the complainant is allowed ex-parte with the following directions:

1. The opposite parties are jointly and severely directed to pay the electricity and tax dues to the concerned authority and to deliver the possession of the owner’s allocation to the complainant and to execute and register the deed of conveyance in respect of three residential flats as mentioned in the schedules to the agreement dated 17.03.2015 within 60 days from the date of communication of order.
2. The opposite parties are jointly severely further directed to pay the complainant Rs. 1,85,000/- along with interest @ 10% p.a. from 19.03.2015 till actual date of payment.
3. The ops. are jointly and severely further directed to pay to the complainant the dues rent @ Rs. 5000/- per month till date.
4. The ops. are further directed to pay compensation of Rs. 1,00000 (one lakh) to the complainant for mental agony and harassment.
5. The ops. are further directed to pay Rs. 10,000/- as litigation cost to the complainant.”

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          Complainants stated in the petition of complaint that despite passing of the final order / judgment dated 27/12/2018, Opposite Parties willfully failed and neglected to comply the said judgment and now it has nearly two years elapsed from the passing of the said judgment, the opposite parties have chose to sit with the directions idly and there is no positive attempt shown on their part to execute the said order.

They further stated that in the meantime Sarbani Basu died intestate on 12/05/2019 and after her death Complainants on several occasions verbally requested to comply and execute the work and the Complainants also informed that they shall extend co-operation for such execution: but the opposite parties have chosen to sit on the matter for indefinite time.

It is the main allegation of the Complainants that as Sarbani Basu died they filed the case afresh before this Commission praying for certain reliefs.

But we find the dispute between the parties has already been decied by the Hon’ble S.C.D.R.C and Hon’ble S.C.D.R.C passed final order. In this situation dispute cannot be tried for the second time.

It is settled principles of law that if any dispute between the parties has decided after Trial then said dispute cannot be re-filed for the second time praying for same relief.

In view of aforesaid discussion it is clear before us that as the dispute between the parties has already been adjudicated before the Hon’ble S.C.D.R.C and Hon’ble S.C.D.R.C please to pass the final order so the present case cannot be adjudicated for the second time before this Commission.

In the result, present case fails.   

Hence ,

It is

                   Ordered,

          That the present case be and the same vide no. C.C./109/2021 is dismissed ex-parte but without any order as to costs.

Let a plain copy of this order be given to the parties free of cost as per CPR, 2005.

Dictated and Corrected by me

President

Member                                                                                  President