State Consumer Disputes Redressal Commission
Bishnupada Mondal & Others vs M/S. Shivaco & Others on 15 March, 2023
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/844/2019 ( Date of Filing : 05 Nov 2019 ) 1. Bishnupada Mondal & Others S/o Lt. Nrisingha Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 2. Nemai Chandra Mondal S/o Lt. Nrisingha Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 3. Anjali Mondal W/o Lt. Krishna Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 4. Joy Kr. Mondal S/o Lt. Krishna Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 5. Chandra Mondal Ghatak D/o Lt. Krishna Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 6. Kakali Mondal D/o Lt. Krishna Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 7. Aparna Mondal W/o Lt. Subal Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 8. Susmita Mondal D/o Lt. Subal Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 9. Swarnadip Mondal S/o Lt. Subal Chandra Mondal, rep. by constituted attorney Joy Kr. Mondal, 22A, Satchasipara Road, P.O. & P.S. - Cossipore, Kolkata -700 002. ...........Complainant(s) Versus 1. M/s. Shivaco & Others 24B, Gopal Chandra Chatterjee Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 2. Sri Swapan Paul, partner, M/s. Shivaco S/o Pashupati Nath Paul, 24B, Gopal Chandra Chatterjee Road, P.O. & P.S. - Cossipore, Kolkata -700 002. 3. Susanta Bose, partner, M/s. Shivaco S/o Lt. Sailendra Nath Bose, 18A, Prannath Sur Lane, P.O. & P.S. - Cossipore, Kolkata -700 002. ............Opp.Party(s) BEFORE: HON'BLE MR. AJEYA MATILAL PRESIDING MEMBER HON'BLE MRS. SOMA BHATTACHARJEE MEMBER PRESENT: Mr. Soumyajit Mukherjee, Advocate for the Complainant 1 Dated : 15 Mar 2023 Final Order / Judgement Hon'ble Mr. Ajeya Matilal, Presiding Member
The complaint case is in short like that, a development agreement on 18.05.2008 was executed amongst the OPs being the developer and one Krishna Chandra Mondal, one Bishnupada Mondal, one Subal Chandra Mondal and one Nimai Chandra Mondal all being the sons of Late Nrisingha Chandra Mondal residing At 22A, Satchasipara road, Police Station - Cossipore, Kolkata - 700002, in respect of all the piece and parcel of land with structure measuring about 12 Cottahs, 11 Chittacks and 9 sq. ft. lying and situated at premises No. 22B, Satchasipara Road, Police Station Cossipore, Kolkata - 700002. Some of the present complainants are the legal heirs and successors of the signatories who executed the development agreement with the OPs.
A general power of attorney was also executed by all the original land-owners in favour of all the OPs being the developers. The OP no. 1 is a partnership firm and the other OPs are partners.
The period for implementation of the aforesaid development agreement was 24 months from the date of the issuance of the sanctioned building plan. The sanctioned plan has been duly issued by the competent authority on 12.04.2012.
On 17.07.2013, one of the original land-owners namely, Krishna Chandra Mondal died intestate leaving behind the present Complainant Nos. 3, 4, 5 & 6 as the legal heirs and successors of the said Late Krishna Chandra Mondal and they became the equal undivided co-sharers in respect of the undivided property left behind by the said Krishna Chandra Mondal since deceased.
The developers failed to complete the construction work within the stipulated period.
The land-owners approached the developer to complete the construction as early as possible orally and also in writing. Subsequently, on 17.05.2019 out of the remaining original land-owners one Subal Chandra Mondal died intestate living present complainant Nos. 7 to 9 herein as his legal heirs.
As per agreement, 50 % share of the total constructed area of the building was the owner's allocation being the entire 1st floor , three self-contained flats being No. D, E & F on the southern side of the 3rd floor, three flats being A, B & C on the northern side of the 4th floor and the 50% share comprising of car parking spaces, office rooms, units etc. in the ground floor.
As per the sanctioned plan, the total constructed area of the premises in question is 24028 sq. ft. as such, with regard to the terms and conditions of the development agreement, the land-owners are entitled to 50 % of the constructed area i.e., 12014 sq. ft. the land-owners were forced to take possession of their allocation like other purchasers due to inaction by the OPs.
At the instances of the complainant, the owner's allocation was measured by a LBS of Kolkata Municipal Corporation.
The developer /OP did not handover the possession of the flat in question within the stipulated period either to intending purchasers or the landowners being the present complainants. They did not handover the owner's allocation to the complainants. So the complainants being the land owners were forced to take possession of their allocations like other purchasers without having any proper idea regarding the authenticity of the measurement of area to which they are entitled. After taking possession in order to verify their entitlement in respect of the said property as per agreement, the complainants appointed a LBS engineer of KMC. The LBS after physical measurement derived that the complainants have received 50% area in the ground floor i.e. 2154 sq. ft. out of total constructed area of 4308 sq. ft. As such it has been observed in the report that the complainants were entitled to total area of 12014 sq. ft. but actually the complainants have been provided with 11080 sq. ft. instead of 12014 sq. ft. out of total constructed area of 24028 sq. ft. So, there was a shortfall of 934 sq. ft. area which was in violation of the agreement.
The OPs neglected to complete the project and left the project in an incomplete stage. So, the complainant had to invest substantial amount of money for completing the said owner's allocation. The OPs did not take any initiative to complete the project and they left the project abandoned.
As per development agreement the OPs were supposed to do the following words.
(i) The roof treatment has not been done for which water is leaking through the floors thereby damaging the entire building on regular course.
(ii) The lift has not been installed which is creating huge inconvenience for the old and aged residents of the said building.
(iii) No approach road has been constructed or passage has been made walking friendly for the smooth ingress and egress from the premises, which is highly risky for the residents particularly for the children and elderly persons residing in the said premises.
(iv) No gate has been installed or fitted in the premises causing security threat to the premises.
(v) No boundary wall has been constructed.
(vi) Unfinished painting work on the exterior wall as well as in the interior walls.
(vii) No completion certificate has been provided till date.
(viii) Apart from the above, out of the 12 flats, or the owners' allocation, the Opposite Parties have not completed the construction of 6 flats and abandoned the project and the complainants herein had to invest a substantial amount for completing the same.
The complainants requested the OPs through a demand notice through their Ld. Advocate on 17.09.2019 asking them to complete the construction of the said building as per sanctioned plan and arrange for providing with completion certificate. Prior to that, the complainants requested the OPs orally on many occasions to complete the project. To complete the interior decoration of the flats the complainants paid Rs. 6,00,000/-. As per complaint the complainants were entitled to Rs. 37,36,000/- which is the consideration for the residual 934 sq. ft. owner's allocation @ 934 x 4000 per sq. ft. The complainant also prayed for compensation of Rs. 18,00,000/-. So the complainant filed the case with prayer for directing the OPs to complete the construction of the said building, providing with completion certificate and reimbursement of Rs. 6,00,000/- spent by the complainants.
The complainant no. 4 Joy Kumar Mondal adduced evidence as a constituted attorney on behalf of all the complainants. The development agreement has been filed by the complainant which is marked as annexure A. The report of the LBS along with the plan has been marked as annexure B. Demand notice dt. 17.09.2019 along with postal receipts an internet generated track report was marked as annexure C collectively.
According to the complainants the cause of action of the case arose on the date of execution of development agreement and lastly on 17.09.2019 when the demand notice was made by the Ld. Advocate for the complainants to the OPs.
Perused the evidence on record along with the annexures. It appears from the documents filed by the complainants and oral evidence that the complainants are consumers and there is deficiency in service on the part of the OPs and the complainants are entitled to relief as prayed for. Furthermore, there is nothing to disbelieve the unchallenged testimony of the complainants. So, the case succeeds.
Hence it is ordered The complaint case being no. 844/2019 is allowed ex parte against the Opposite Parties with litigation cost of Rs. 30,000/-. The Opposite Parties are directed to complete the construction of the building at premises no. 22B Satchashi Para Road P.S. Cossipore Kolkata 700002 Ward No. 1 KMC Borough No. 1 under the Jurisdiction of A.D.S.R.O., Cossipore Dumdum and to reimburse the invested amount of Rs. 6,00,000/- spent by the complainants to them and to deliver peaceful vacant possession of the residual portion of 934 sq. ft. area of owner's allocation within 90 days from this order, failing which, the complainants will be at liberty to put this award into execution. If the Opposite Parties fail to deliver the aforesaid area within the aforesaid period they shall pay Rs. 37,36,000/- being the market price of the aforesaid area within the said period. The Opposite Parties are also directed to give Rs. 3,00,000/- to the complainants as compensation within that period.
[HON'BLE MR. AJEYA MATILAL] PRESIDING MEMBER [HON'BLE MRS. SOMA BHATTACHARJEE] MEMBER