National Consumer Disputes Redressal
Sri Sri Iswar Madan Mohan Jew Thakur ... vs M/S. Amarpali Hirise (P) Ltd. & Anr. on 29 September, 2022
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 180 OF 2018 1. SRI SRI ISWAR MADAN MOHAN JEW THAKUR RELIGIOUS TRUST & 2 ORS. ...........Complainant(s) Versus 1. M/S. AMARPALI HIRISE (P) LTD. & ANR. Through its Directors, Office at:4, Ramani Chatterhjee Street, P.S. Gariahat, Kolkata-700029 2. SH. MALAY BOSE S/o Late Dh. Sukhendu Mohan Bose, Director, R/p House No.4/46, Bijoygarh, Police Station, Jadavpur, Kolkata-700032 ...........Opp.Party(s)
BEFORE: HON'BLE MR. JUSTICE RAM SURAT RAM MAURYA,PRESIDING MEMBER HON'BLE DR. INDER JIT SINGH,MEMBER
For the Complainant : Mr. Vinod Kumar, Advocate
Mr. Arun Kumar Kaushik, Advocate For the Opp.Party : NEMO
Dated : 29 Sep 2022 ORDER
JUDGEMENT
1. Heard Mr. Arun Kumar Kaushik, Advocate, for the complainants. Although notice has been served upon opposite parties on 19.03.2018 but they did not appear nor filed any written reply, therefore, this Commission on 25.05.2018 has proceeded ex parte against the opposite parties.
2. Above complaint has been filed for directing the opposite parties to (i) forthwith commence/start and complete the building construction work at Premises No. 121, Sarat Bose Road, P.S. Tollygunge, Kolkata-700026, (ii) to pay compensatory amount of Rs.5208000/-, to the complainants, (iii) to pay Rs.216000/- to complainant-2 as unpaid alternate accommodation charges, (iv) to pay Rs.476000/- to complainant-3, as unpaid alternate accommodation charges, (v) to pay Rs.300000/- as legal expenses, (vi) to pay Rs.2000000/- as compensation for mental agony and harassment; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.
3. The complainants stated that Premises No. 121, Sarat Bose Road, P.S. Tollygunge, Kolkata, originally belonged to Smt. Snehalata Debi, who dedicated it to the Idol "Sri Sri Iswar Madan Mohan Jew Thakur" through registered endowment deed dated 20.12.1952. She appointed her husband Sachindra Nath Sen as first shebait of the deity, who had right to appoint his successor. After the death of Sachindra Nath Sen, his son Arun Kumar Sen and Ashok Kumar Sen became the shebaits in his place. Arun Kumar Sen also died and his son Duttatreya became shebait. Duttatreya also died and his wife Seema Sen and son Dhritiman Sen became shebaits. Seema Sen also died. After death of Ashok Kumar Sen, his son Santanu Sen become shebait. Dhritiman Sen and Santanu Sen are now managing the affairs of the Idol.
4. The shebaits decided to develop the said debattar property by demolishing old structure (a part of it was in possession of the tenants) and constructing multi-storied building in its place. The shebaits discussed with M/s Amarpali Hirise Pvt. Ltd. (opposite party-1), which was a company registered under the Companies Act, 1956 and engaged in the business of development and construction of multi-storeyed buildings. The shebaits entered into a registered Development Agreement dated 15.04.2007 and a Supplementary Agreement dated 07.06.2011 with the opposite parties. Thereafter they vacated the premises on 13.06.2011 and shifted to other location. The shebaits also executed a registered Power of Attorney dated 16.12.2011, in favour of Malay Bose (opposite party-2) authorising him to discharge all incidental function on their behalf. The complainants applied to District Judge Alipore for grant of permission to raise the new construction and share it with the developer in accordance with the Development Agreement, under Section 34 of the Indian Trust Act, 1882 read with section 7 of the Hindu Religious and Endowment Act, 1920. District Judge, vide his order dated 21.01.2013, granted permission for construction of new building and sharing it with the developer. The opposite parties got Layout Plan of the building sanctioned from Municipal Corporation Kolkata vide B.P. No.2013080020 dated 23.05.2013. The shebaits entered into a fresh registered Development Agreement dated 17.07.2013 with the opposite parties. As per clause-xviii of this development agreement, the construction has to be completed within 24 months from the commencement of the construction or from August, 2013 or from the date of giving vacant possession of the premises to the developer, whichever is later. The developer further agreed to give Rs.1000000/- to Dhritiman Sen Rs.1500000/- to Santanu Sen. It was further agreed between the parties that they will share the construction. Vide clause ix of Article -I, definitions, "the OWNER'S ALLOCATION" has been specified and vide clause xiii, the DEVELOPERS ALLOCATION has been specified. The developer also agreed to pay rent for alternate accommodation during the period of construction. The construction work was started by the opposite party from August 2013 but it was stopped from July, 2015, although 70% of the construction has been completed. The opposite parties raised some more demand. In order to resolve the dispute, a supplementary agreement was executed in the year 2015, in which, the complainants agreed for one additional floor after 4th floor to be constructed by the developer which would be in the share of the developer. When the telephonic and oral talks failed, the complainant gave legal notices to the opposite parties dated 18.05.2016 and 15.06.2016, which were not responded. The complainants referred the dispute to Consumer Affairs Department, who issued notice to the opposite parties but the dispute could not be settled before the Consumer Affairs Department. Thereafter, the complaint was filed before State Consumer Disputes Redressal Commission, West Bengal. But on the ground of pecuniary jurisdiction, the complaint was dismissed with liberty to the complainants to file the present complaint. Thereafter this complaint has been filed on 18.01.2018.
5. The opposite party did not file any written reply nor contested the case despite service of notice. The complainants filed Affidavit of Evidence of Dhritiman Sen as well as the documentary evidence and proved the facts stated in the complaint.
6. We have considered the arguments of the counsel for the complainants. The agreement dated 17.07.2013 is a registered agreement between the parties. In this agreement the opposite parties took responsibility to develop the property into five storeyed building (ground floor + four storey). Thereafter, vide supplementary agreement of the year 2015, the developer was permitted to raise one additional floor. The developer has already constructed 70% of the construction but stopped construction from 2015. The developer has not shown any reason for stopping the construction. Due to not completing construction in time, the complainants are suffering rental loss of their property as well as they are burdened with rent of alternate accommodation.
ORDER
In the circumstances, the complaint is party allowed. The opposite parties are directed to complete the construction as per specifications in the agreement within six months from today. In case, the opposite party fails to complete the construction within six months, it shall be open for the complainants to take possession of the entire building and deal with in their own way. The complainants are directed to serve a certified copy of this order upon the opposite parties within 10 days.
......................J RAM SURAT RAM MAURYA PRESIDING MEMBER ...................... DR. INDER JIT SINGH MEMBER