Joydeb Saha vs Mihir Lal Mukherjee

V.K.Jain, J.

The respondent who was the owner of a two-storied building, entered into an agreement with the petitioner for re-development of the said building by constructing a new ground + 3 storied building after demolishing the existing building. As per the terms of the agreement, the petitioner was to give two self-contained complete flats covering the entire second floor and a car parking space to the complainant. Construction was to be completed within 18 months of the sanction of the building plan and in case of default, the petitioner was to pay compensation @ Rs.5,000/- per month to the complainant for the period of delay. It was also agreed in the agreement that the flats to the complainant would be delivered before delivering flats to any other buyer.

The complainant received a notice from the Building Department of Kolkata Municipal Corporation informing that the construction work had been stopped u/s 416 of Kolkata Municipal Corporation Act on account of unauthorized/illegal construction. The aforesaid notice was followed by another notice from Kolkata Municipal Corporation alleging further illegal construction in the building. The petitioner is also alleged to have sold the common passage in southern side of the ground floor to different persons. This is also the case of the complainant that he was compelled to take possession of incomplete flats and incur expenditure of Rs.3,76,000/- on completing the same. The work which the complainant had to carry out included-(i) outside painting of the building ; (ii) plaster of paris and painting of walls of stair case ; (iii) painting of railing/grill of the stair case ; (iv) marble polishing of the stair case ; (v) electric line in common area ; (vi) cement plastering of boundary walls, stair case and underground water reservoir ; (vii) water connection from KMC; (viii) sewerage connection from KMC and (ix) fitting of doors on the roof of the building.

Being aggrieved, the complainant approached the concerned State Commission by way of a Consumer Complaint, seeking a direction to the petitioner to complete the incomplete work, pay the cost of Rs.3,76,000/- incurred by the complainant in order to make the flats habitable and also pay the compensation to him.

The petitioner appeared before the State Commission on receipt of notice but did not file the written version.

Vide impugned order dated 25.09.2017, the State Commission issue the following directions to the petitioner:

(1) To complete the incomplete works of the building and common area of building in terms of development agreement dated 02.03.2006 within three (3) months from date; (2) OP is also directed to pay Rs.3,76,000/- to the complainant as costs borne by the complainant to make his portion habitable ; (3) To pay compensation amounting to Rs.5,000/- p.m. from October, 2007 (after expiry of 18 months of agreement ) till February, 2010 ; (4) To pay compensation of Rs.1,00,000/- for harassment and mental agony and (5) Litigation cost of Rs.10,000/-. All the above payments must be paid by the OP in favour of the complainant within 60 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation.

Being aggrieved from the order passed by the State Commission, the appellant is before this Commission by way of this appeal. Since there is a delay of 184 days in filing the appeal, IA No.9123 of 2018 has been filed seeking condonation of the said delay primarily on the ground that the interim orders passed by the State Commission were challenged by the petitioner before the Hon'ble High Court of Calcutta and during pendency of the petitions filed by him, the Consumer Complaint came to be finally decided. The petitions before the High Court of Calcutta were finally dismissed on 04.01.2018. It is also alleged that the appellant was suffering from several ailments and was under treatment of a doctor. He therefore, could not engage an advocate and could not file the appeal within the prescribed period.

I have perused the order passed by the State Commission in the Consumer Complaint. It was noted by the State Commission that not only the appellant/developer had failed to complete the construction, he had also made unauthorized construction on account of which notice was issued by Kolkata Municipal Corporation to the complainant. It was also noted that contrary to the agreement of the appellant, he had handed over possession to other persons without first delivering possession to the complainant. It was also noted by the State Commission that though as per the sanctioned plan, there are only two car parking spaces - one for landowner i.e. the complainant and the other for the developer, he had sold out the said car parking spaces to three persons namely (1) Shri Pradip Kumar Bagchi, (2) Shri Paramesh Das and (3) Smt. Sangeeta Das.

Considering the aforesaid default and deficiencies on the part of the appellant, the directions given by the State Commission were fully justified. It is the duty of the appellant to furnish the incomplete work in the building as well as in the common area as per the terms of his agreement dated 02.03.2006 with the complainant. The State Commission took note of the documents filed by the complainant showing expenditure of Rs.3,76,000/- incurred by him on making his portion habitable. The direction of payment of Rs.3,76,000/- to the complainant therefore, cannot be faulted with. Compensation to the complainant has been awarded strictly as per the terms of the agreement executed between the parties. In the facts and circumstances of the case, the compensation for the harassment and mental agony caused to the complainant is also justified. I therefore, find no good reason to interfere with the order passed by the State Commission on the merit of the Consumer Complaint.

Since I find no merit in the case of the appellant, I need not go into the question as to whether the delay of about six months in approaching this Commission is justified or not. The appeal as well as the accompanying applications are therefore, dismissed.