JUDGMENT

Manojit Mandal, President.—This appeal has been filed under Section 41 of the Consumer Protection Act, 2019 ( in short, ‘the Act’) challenging the order dated 10/02/2023 passed by the Learned District Consumer Disputes Redressal Commission, Kolkata, Unit-III, Dist. 24 Parganas (South) (in short, ‘the District Commission’) in connection with consumer case No.CC/108/2021.

2. The appellant being the complainant filed a complaint case being No.CC/108/2021 praying for the following reliefs:—

“i) To deliver the two flats (2 nos. of BHK flat on the 3rd floor) to the complainant as per the development agreement which was executed by and between the developers and the owner / complainant on 20.07.2017 or if failed to deliver the same then paid the present market value of the two flats of 1BHK measuring about 350 sq.ft. each to the owner and issue the possession letter and also complete the incomplete work on the 2nd floor.

ii) Rs.200/- per day from sending the notice by the Advocate of the complainant dated 08.01.2021 to the date of Payment as compensation for the harassment inconvenience, frustration and mental agony suffered by the complainant.

iii) That the shifting charges a sum of Rs.5000/- p.m. should be paid by the Developers / Opposite Parties till date from July, 2020 to till date to the Owner.

iv) Litigation cost, legal notice and other expenses of Rs.70,000/- to be paid by the Developer / Opposite Parties to the complainant.”

3. Notices were duly served upon the respondents and the respondents appeared in this case and contested the case by filing written version denying the material fact. Both the parties filed their respective examination in chief on affidavit followed by filing questionnaire and reply thereto. Both the parties also have filed their BNAs.

4. After hearing both sides and on perusal of the evidence and materials available on record the Learned District Commission dismissed the complaint case on contest by the order impugned.

5. Being aggrieved by and dissatisfied with the said order, the appellant has preferred this appeal.

6. Having heard the Learned Advocate appearing for the parties and on perusal of the materials available on record it appears to me that it is an admitted position that even though a development agreement dated 20/07/2017 was entered into between the parties but due to shortage of land, supplementary agreement dated 18/09/2017 was entered into between the parties to construct a 3 storied building instead of 4 storied building as agreed in the development agreement dated 20/07/2017.

7. It is also an admitted position that the entire 2nd floor in the newly constructed 3 storied building has been handed over to the complainant.

8. It is also an admitted position that the supplementary agreement was entered into to construct a 3 storied building.

9. It is also an admitted position that plan of 3 storied building was approved by the Kolkata Municipal Corporation and the said plan bears the signature of the complainant as owner.

10. The Learned Advocate appearing for the appellant has urged that the complaint case is maintainable. So, the complaint case should be allowed by this Commission.

11. The Learned Advocate appearing for the appellant has further urged that the impugned order dated 10/02/2023 is otherwise bad in law and is liable to be set aside. He has further urged that the impugned order passed by the Learned Commission is against the principles of material justice, fair play and equity and if the impugned order is not set aside it will cause great prejudice to the right of the appellant herein. He has further urged that the developer has every authority and the Kolkata Municipal Corporation authority also allowed to make construction over the 3rd floor half portion only subject to modified sanction plan approved by the Kolkata Municipal Corporation but the developer in the instant case failed to submit modified plan for sanction to the Kolkata Municipal Corporation