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WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION
Ajeya Matilal, Presiding Member and
Soma Bhattacharjee Member
Partha Sarathi Dutta and Anr. – Complainants
versus
Debabrata Mondal and Ors. – Opp. Party
Complaint Case No.CC/79/2017
Decided on 12.7.2023
Counsel for the Parties:
For the Complainants:Mr. Barun Prasad, Mr. Subrata Mondal, Mr. Sovanlal Bera, Advocate
IMPORTANT POINT
Delayed Date - There was a negligence and deficiency in service of the OPs since they handed over a flat with a shortfall covered area of 266 sq. ft. and on a delayed date.
Headnote:
Consumer Protection Act, 1986 – S.17[Consumer Protection Act, 2019 – S.47(1)] – Services – Real Estate – Allotment of Flat / Plot – Delayed Possession – for shortfall area - Handing over landed property – Purchasers termed as “Consumers”- Deficiency of service attributed - The complainants are consumers in terms of C.P. Act, 1986 as they have handed over their landed property to the OPs, by virtue of a development agreement, in lieu of delivery of a flat comprising covered area 424+423 = 847 sq. ft. But there was a negligence and deficiency in service of the OPs since they handed over a flat with a shortfall covered area of 266 sq. ft. and on a delayed date. The complainants are therefore entitled to relief – OP directed to pay shortfall area – Complaint allowed. [Paras 6 to 21].
Result: Complaint allowed.
JUDGMENT
Soma Bhattacharjee, Member—The complaint case has been filed by the complainants Sri Partha Sarathi Dutta and Sri Damrupani Dutta against OP no. 1 Sri Debabrata Mondal and Ors., Developers u/s 17 of C.P. Act, 1986. The complaint is valued at Rs.45,00,000/-.
2. The facts of the case in a nutshell are: The complainants along with their another brother Goutam Dutta are owners, by inheritance, of a plot of land measuring about 01 Cottah, 15 Chittaks and 11 Sq. ft. be the same a little more or less lying and situated at Premises No. 11/3, Satchasi Para Lane, Kolkata - 700036, under Ward No.1, District - North 24 Parganas, within the Limits of Kolkata Municipal Corporation and possessed the property more fully and sufficiently by mutating their names in the record of Kolkata Municipal Corporation and renumbered as 11/3, Satchasi Para Lane Kolkata - 700036, under Police Station – Cossipore, District - North 24 Parganas.
3. OP nos. 2 and 3 who are Partners of OP no. 1, are respectively residents of 20 Satchshi Para Lane Kolkata 700036, P.S. Cossipore and 10B South Sinthee Road Kolkata 700050 P.S Sinthee and also 10/1F Satchaasi Para Lane Kolkata 700036 P.S Cossipore.
4. The complainants along with Goutam Dutta intended to construct one multi storied building on their plot of land for residential purpose. They entrusted the job of development on the OPs, at the cost of the OPs, and accordingly one development agreement was executed between the two parties that is the complainants and the OPs and proforma OP Goutam Dutta on 29.04.2014. It was duly notarised on 14.05.2014. The complainants empowered the OPs as their Constituted Attorney by registered Power of Attorney No. 03107 for the year 2014 duly registered at office of the Additional Registrar of Assurances – III at Kolkata for construction of building, sanction of building plan, sale of developer’s allocation and other purpose for smooth development of the land of complainants and at the time of signing the development agreement and power of attorney, the complainants and Goutam Dutta handed over all the original deed, tax receipts, site plan of land, current electric bill, current corporation tax receipt etc. of the land to the Opposite Parties.
5. As per the agreement the OP no. 1, being represented by OP nos. 2 and 3, demolished the structure standing over the aforesaid premises of the complainants and shifted the complainants and their family members to a temporary accommodation on rental basis with an undertaking to pay monthly rent regularly by the OPs, till delivery of possession of owners’ allocation.
6. As per the terms of the development agreement the OP/developer also agreed to deliver the owners’ allocation according to clause no. 3.1 (i), (ii) of the said development agreement within 20 months from the date of sanctioned plan or taking possession of the property from the complainants.
7. The OPs started constructing the building but deviated from the sanctioned plan received from KMC. The complainants requested the OPs not to deviate from the sanctioned plan but OPs proceeded with deviation for their illegal gain.
8. As per the development agreement dt. 29.04.2014 the owner’s allocation is 1270 sq. ft. more or less covered area out of which the developer shall handover a complete flat measuring about 424 sq. ft. more or less on the 2nd floor in favour of Partha Sarathi Dutta. Another complete flat measuring about 423 sq. ft. more or less, on the 2nd floor shall be handed over in favour of Sri Damru Pani Dutta and the last one complete flat on the 3rd floor front portion measuring about 423 sq. ft. more or less shall be handed over to Sri Goutam Dutta together with undivided proportionate share of the land and the building and apart from that the 2nd party developer shall also pay Rs. 15,00,000/- to the owners at the time of execution of agreement.
9. As per the development agreement if the developer fails to complete the construction work within the specified
