NANDA DULAL MITRA & ANR Vs. ASHIT MUKHERJEE

JUDGEMENT

(1.) This appeal has been filed by the appellant Nanda Dulal Mitra & anr. against the order dated 10.04.2017 of the State Consumer Disputes Redressal Commission, West Bengal, (in short 'the State Commission') passed in CC No.150 of 2015.

(2.) Brief facts of the case are that the complainants are absolute owners of 'A' and 'B' schedule properties numbered 118/842 and 118/841. Complainants executed two Development agreements no. 15275 and 15274 dated 12.12.2012 with M/s Shibham Construction to develop A and B schedule properties by constructing a multistoried building (G+3) as per the sanctioned plan which has been duly approved by the Panihati Municipality on certain terms and conditions. Complainants also executed two registered Power of Attorney vide deed no. 07392 and 07391 to empower the OP/Developer to act as per the agreements and to do things as per instruction mentioned there in for making construction of the multistoried building. According to the terms and conditions of the above two agreements, the complainants are entitled to get 35% proportionate shares of the A and B schedule properties which should be the first preference to the complainants. Multistoried building was constructed by the OP but the OP has not yet handed over the possession of allocated 35% of proportionate shares of the properties. On 15.7.2014, a legal notice was sent to the OP. As per the development agreement, OP had to deposit a cheque of Rs.5,00,000.00 as security deposit with the appellants which would be returned to the OP as soon as completion certificate is handed over to the complainants but OP did not deposit the said cheque as security. It is also mentioned in the said agreement that the amount of Rs.5,00, 000.00 will not be refunded if the developer failed to complete the project of multistoried building within two years from the date of agreement. The OP did not hand over the articles such as wooden beams, Roof supporting, iron plates etc. valued at Rs. 5 lakhs which is also a deficiency in service and gross negligence and breach of development agreements. Complainants alleged that there was illegal transfer of flats and shop rooms without their consent and without giving appellants 1st choice of 35% proportionate share of the constructed building. Complainants prayed for an order for directing the OP to provide 35% 1st choice of proportionate shares to the appellants described in the agreements; Rs.5,00,000 as security deposit and Rs.10, 00, 000 as compensation for not providing owners allocation during the tenure of Development Agreements; an order for injunction; an order appointing Commissioner for overall verification and specification of constructed building. OP filed MA/124/2017 whereby the maintainability of proceeding has been challenged. The application was allowed on contest. State Commission dismissed the complaint for lack of pecuniary jurisdiction to entertain the complaint on the principles laid down in the case Consumer case no 97of 2016 Ambrish Kumar Shukla and others vs. Ferrous Infrastructure Pvt Ltd. decided on 7.10.2016 (NC). State Commission held that the complainants being land owners are entitled to 35% of the allocated share which includes 8 flats measuring 4800 sq.ft. The value of this property exceeds 1 crore rupees, hence, the State Commission lacked pecuniary jurisdiction.

(3.) Aggrieved by the order of the State Commission, appellants have preferred this first appeal before this Commission.