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Tripti Construction & Another v/s Sushil Kumar Gangopadhyay & Others

    First Appeal No. 795 of 2014 in Complaint Case No. 213 of 2009

    Decided On, 11 July 2016

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MR. SAMARESH PRASAD CHOWDHURY
    By, PRESIDING MEMBER & THE HONOURABLE MRS. MRIDULA ROY
    By, MEMBER

    For the Appellants: Tarunjyoti Banerjee, Nilanjan Das, Advocates. For the Respondents: Rajesh Biswas, Advocate.



Judgment Text

Samaresh Prasad Chowdhury, Presiding Member

Challenge in this appeal u/s 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the judgment and final order dated 28.02.2014 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat (for short, Ld. District Forum) in Consumer Complaint no. 213/2009 whereby the Consumer Complaint initiated by the Respondent nos. 1 to 3 u/s 12 of the Act was allowed on contest with cost of Rs.5,000/- against the Appellants (Developer) with a direction upon the OPs/Appellants to deliver possession of flat no.404 in the 3rd floor; to hand over 213 sq. ft. Super Built area or to pay money calculated @ Rs.550/- sq. ft., to finish the unfinished work, to pay compensation of Rs.60,000/-.

The Respondents herein being the Complainants lodged the complaint with the assertion that being Land Owners in order to develop the property comprising of 4 catthas of land lying and situated at Premises no.97, M.M. Feeder Road, P.S.- Belghoria, Kolkata - 7000057, they had entered into an Agreement with the Appellants on 01.08.2005 and they have also executed a Power of Attorney in favour of the Appellants. Initially the Respondents had entered into an Agreement for development with Surya Construction on 22.04.2004 but due to internal differences, the said partnership firm was dissolved on 31.07.2005 and a new Development Agreement has been executed by way of cancelling the previous Deed of Cancellation dated 31.07.2005 and by revoking the Power of Attorney given by them in favour of Surya Construction. The Appellants/developers agreed to complete and delivered the possession of flat nos. 209 on the first floor and flat no.404 on the 3rd floor in favour of the Land Owners/respondents. After completion of partial Development work, the Appellants handed over the possession of flat no.209 on the first floor on 12.05.2008. However, the Developers did not take any initiative or positive steps regarding completion of incomplete works and also delivery of possession of flat no. 404 and the 30% constructed area i.e. 1728 & 528 sq. ft. area as agreed in the terms of Agreement for Development dated 01.08.2005. Hence, the Land Owners being Complainant approached the Ld. District Forum with the complaint for prayer of certain reliefs, Viz. – a) an order directing the Developers to pay Rs.5,00,000/- as compensation for harassment and mental agony; b) an order directing the OPs jointly or severally to deliver the possession of flat no.404; c) costs of the proceeding etc.

The Appellants being OPs by filing a joint written versions has submitted that they entered into Development Agreement with the Land Owners to allocate 30% of the sanctioned area and the remaining 70% would go in favour of them. The said 30% of the proposed covered area comes to a figure of 1728/1729 sq. ft. It was agreed that the Developer will allot two flats of equal measurement of 600 sq. ft. each totalling 1200 sq. ft. on the first floor and remaining 520 sq. ft. will sell out by the Developer on payment of Rs.550/- per sq. ft. in favour of the Land Owners.

After assessing the materials on record including the evidence led by the parties, the Ld. District Forum allowed the Consumer Complaint with the directions, as indicated above, which prompted the OP nos. 1 to 3 to come up in this Commission with the present appeal.

We have scrutinised the materials on record and consider the submission advanced by the Ld. Advocates appearing for the parties.

Having heard the Ld. Advocates for the parties and on going through the materials on record, it would reveal that the Appellant no.1 is a partnership construction firm represented by its Partners i.e. Appellant nos.2 & 3 herein. The Respondents herein the Land Owners in respect of 4 cottahs of land lying and situated at Premises no.97, M.M. Feeder Road, P.S.- Belghoria, Kolkata – 7000057. It is not in dispute that on 01.08.2005, the Respondents being Land Owners for developing the land for the purpose of providing residential flats to the intending purchasers had entered into an unregistered Agreement for development with the Developers/Appellants. In the Agreement, it was stipulated that the Developer will complete and deliver possession of flats as agreed, within 36 to 48 months. It is undisputed that on 12.05.2008, the Developers handed over one flat being Flat no.209 on the first floor to the Respondents. The measurement of the said flat is 750 sq. ft. As per terms of the Agreement, the Respondents have entitled to 1729 sq. ft. and, therefore the Developers are under obligation to deliver the remaining 979 sq. ft. in favour of the Land Owners.

The Land Owners have brought allegations against the Developer for not delivery the flat no.404 situated on 3rd floor of Super Built up area of 766 sq. ft. Taking into consideration, the terms of the Agreement, the Developers should have executed the Deed of Conveyance in respect of flat no. 404 in favour of the Land Owners in as much as the Land Owners are entitled to 1729 sq. ft. and further the Developer promised to deliver two flats in favour of the Land Owners.

The Ld. District Forum observed that as per Paragraph-4 of Page –3 of the Development Agreement dated 01.08.2005, the Land Owners in lieu of landed property, would be entitled to 30% of the total constructed area which comes to 1729 sq. ft. out of which the Complainants would be given to self-contained and independent flats each measuring 600 sq. ft. totalling 1200 sq. ft. and the rest (1720 – 1200)= 529 sq. ft. would be saleable units to the Developers @ 550/- per sq. ft. The Ld. District Forum also proceeded to observe that if flat no.404 is delivered, then the Land Owners in total will get (750 + 766)= 1516 sq. ft. and since they are entitled to 1729 sq. ft., the balance i.e. 213 sq. ft. will be the saleable units @ 550/- per sq. ft.

We are fully agree with the findings and observation of the Ld. District Forum. Therefore, the Ld. District Forum was quite justified in directing the Developers to hand over and deliver the possession and to execute the Sale Deed in respect of Flat no.404 in the 3rd floor within two months and also to pay money in respect of 213 sq. ft. at Rs. 550/- per sq. ft. which comes to Rs.1,17,150/-.

Mr. Tarun Jyoti Banerjee, Ld. advocate for the Appellants has submitted that the amount of compensation awarded by the Ld. District Forum is on the higher side because there was also contributing negligence on the part of the Land Owners. We are not in Agreement with such a view because in accordance with the terms of the Agreement, it was statutory obligation on the part of the Developer to fulfil their obligations. Since there was loophole on the part of the Developers in keeping their words in terms of the Agreement, it is a deficiency on the part of them. The Ld. District Forum has rightly observed that the payment of Rs.2,00,000/- by Surya Construction cannot be taken as payment made by the Appellants with regard to saleable sq. ft. in terms of Agreement dated 01.08.2005.

After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties, we do not find any merit in the appeal. In other words, the appeal being devoid of merit is liable to be dismissed. Th

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e amount of compensation awarded by the Ld. District Forum also does not appear to us excessive in view of the fact that the instant Consumer Dispute is pending for long seven years and still the Land Owners are knocking the door of the Forum to get justice. Consequently, the appeal is dismissed on contest. The appeal being a harassing one, the Appellants must borne the costs which we quantify at Rs.10,000/- to be paid by the Appellants in favour of the Respondents i.e. the Complainants of this case. The judgment and final order dated 28.04.2014 passed by the Ld. District Forum in CC/213/2009 is hereby affirmed. The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas at Barasat for information.
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