ANUBHAB CONSTRUCTION Vs. CITY STAR GANGULY PROJECTS LLP

JUDGEMENT

(1.) Heard Mr. Sanjay Ghose, Sr. Advocate, assisted by Mr. Siddhartha Chaudhury, Advocate, for the complainant and Mr. Rana Mukherji, Sr. Advocate, assisted by Mr. Parth Sil, Advocate, for the opposite party.

(2.) Anubhab Construction (a Partnership Firm, registered Indian Partnership Act, 1932) has filed above complaint, for directing the opposite party to (i) handover possession of the flats and car parking spaces as allocated to its share under Development Agreement dtd. 16/1/2013 and Supplementary Agreement dtd. 13/1/2015, forthwith; (ii) allow the complainant to enter the site of the project; (iii) obtain "completion certificate" of the project from competent authority; (iv) pay Rs.50000.00, per month per flat, falling in the share of the complainant, as delayed compensation from 19/11/2017 till the date of actual possession the flats along with car parking spaces; (v) pay Rs.one crore, as compensation for mental agony and harassment; (vi) pay Rs.200000.00, as costs of litigation; and (vii) any other relief which is deemed fit and proper in the facts and circumstances of the case.

(3.) The complainant stated that City Star Ganguly Projects LLP (the opposite party) was a Limited Liability Partnership Firm, registered under the Limited Liability Partnership Act, 2008 and engaged in the business of development and construction of multi-storey buildings. Amit Ganguly, the partner of the opposite party used to persuade the owners of the land, for development and construction of multi-storey buildings and after entering into development agreement, used to adopt all tactics to grab the land. Amit Ganguly had much clout over the local administration and strong political support. The complainant was owner of the land, admeasuring 82 cottahs 5 chittacks 33 sq.ft. (143 decimals) at Mouza Barhans Fartabad. Amit Ganguly persuaded the complainant for construction of multi-story building over the said land. The complainant entered into Development Agreement with City Star Griha Udyog Private Limited and Ganguly Home Search Private Limited dtd. 13/11/2011, on principal to principal basis for construction of multi-story building over the said land, who later on authorised/transferred development work to City Star Ganguly Projects LLP through resolution dtd. 15/11/2012. Then the complainant entered into Development Agreement with the opposite party dtd. 16/1/2013, on principal to principal basis for construction of multi-story building over the said land. Under the development agreement, 36% of super built-up area including car parking space, common areas and facilities including equivalent proportionate undivided share in the ultimate roof and underneath of the building. In addition to 36% share in super built up area, the opposite party had to pay Rs.3.00 crores, out of which Rs.1.5 crore was interest free refundable advance and Rs.1.5 crore shall be adjusted at the time of delivery of possession over the complainant's share. Article-VII of the development agreement provides that 48 months period from the date of obtaining vacant possession of the land, for completion of the project and handing over possession with grace period of six months. The complainant also executed a deed of General Power of Attorney dtd. 16/1/2013, authorising Amit Ganguly to exercise all its right to carry out the construction of multi-story building over the said land. The opposite party got Layout Plan No.1254/CB/30/54 dtd. 19/11/2013, sanctioned from the competent authority for construction of lower ground plus upper ground plus nine storied and lower ground plus upper ground plus fifteen storied residential building, on the basis of above deeds and started construction. Thereafter, a Supplementary Agreement dtd. 13/1/2015 was executed between the parties, by which actual flats/car parking spaces falling in their shares were allocated and the details were mentioned in Second Schedule. After execution of supplementary agreement, the opposite party started to find out nooks in the matter in order to delay implementation of the project. The opposite party, vide letter dtd. 14/2/2015 asked the complainant to clear the past dues of electricity. The complainant, vide letter dtd. 20/2/2015, requested the opposite party to make necessary payment and assured that the said money would be repaid by October, 2015. The opposite party, vide letter dtd. 8/5/2015, asked for clarification of tittle of Holding No.50, although copy of title deed was supplied to the bankers of the opposite party also to the authorities at the time of sanction of layout plan. The complainant vide letter dtd. 14/5/2015, informed that original deed may be examined in its office and copy may be collected. Although the opposite party kept on writing letters but nobody turned up for examination of original and collecting its copy. Period of 48 months from the date of development agreement expired on 15/1/2017. The complainant tried to inspect the flats of its allocation on 1st and 3/3/2017 but the officials of the opposite party did not permit to inspect the flat. Then the complainant wrote a letter dtd. 22/3/2017 to the opposite party for permitting to inspect the site. The complainant again wrote a letters dtd. 26/4/2017, 13/6/2017 and 27/6/2017 to the opposite party to fix any time and permit to inspect the site. The opposite party, vide letter dtd. 30/6/2017, refused to entertain any such letter. The complainant, then filed Title Suit No.126 of 2017, for mandatory injunction, directing to the opposite party to permit inspection of the flats falling in the share of the complainant and for declaration that the complainant had right to execute agreement for sale of the flats falling in its share and collect earnest money. Civil Judge (Senior Division), Baruipur dismissed the said suit under Order 7 Rule 11 C.P.C., vide order dtd. 14/9/2017. The complainant filed Civil Appeal No.12 of 2017 from above order, which was dismissed on 15/6/2018. The period of 48 months expired long before. The complainant therefore gave legal notices dtd. 12/3/2018 and 14/9/2018, for handing over possession of the flats and car parking spaces of its share. The opposite party send reply notice date 28/9/2018, stating that as the complaint has failed to perform its obligation under the development agreement and forced the opposite party in civil and criminal litigation as such the project was delayed and still under development. The complainant gave reply notice dtd. 10/11/2018 and denied the allegations and filed this complaint on 12/3/2019, alleging deficiency in service and unfair trade practice.