DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 136 OF 2018
DATE OF FILING: 5.12.2018 DATE OF JUDGEMENT: 27/06/2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : 1. Sri Murari Mohan Mondal, son of late Krishna C. Mondal of Kiron Kunja, Ukil Para, Ward no.14, P.O & P.S Baruipur, Kolkata-144.
2. Mrs. Debalina Mondal nee Ghosh, wife of Shri Murari Mohon Mondal of Kiron Kunja, Ukil Para, Ward no.14, P.O & P.S Baruipur, Kolkata-144.
O.P/O.Ps : 1. Abhijit Banerjee, son of late Kiron Banerjee of Doltala, Baruipur, Puratan Bazar, P.O & P.S Baruipur, Kolkata-144.
2. M/s Kiron Uddyog, C/o Abhijit Banerjee of Doltala, Baruipur, Puratan Bazar, P.O & P.S Baruipur, Kolkata-144.
_______________________________________________________________
JUDGMENT
Sri Ananta Kumar Kapri, President
Facts giving rise to the filing of the instant case runs in its narrow compass as follows.
The complainants are husband and wife. They purchased a flat measuring 1780 sq.ft on the second floor of the subject building as succinctly described in paragraph 3 of the complaint, @ Rs.825/- per sq.ft from the O.Ps/developers. Possession of the flat was made over to the complainants in December, 2007 in incomplete position. The sale deed was executed and registered by the O.Ps in the year 2010 in favour of the complainants. Now, about more than 10 years after the possession of the flat being made over to the complainant, they have come up before this Forum with the filing of the instant case, alleging that the flat was made with substandard quality materials, that no drinking water connection was provided to the flat , that the electric phase work was not done in the flat and that the painting of the building outside and inside was not also done. The complainant has prayed for repair of damaged portion of the building, completion of incomplete works of their flat , compensation etc. Hence, this case.
The O.ps have filed written version to contest herein, wherein it is contended inter alia that the flat was delivered to the complainants in schedule time with 95% complete works and the complainants took a refund of Rs.1,45,000/- from him on the ground that they would complete the rest work of the flat on their own. There are 8 flats in all in the said building and all the 8 flats have been sold and some of them have been resold also. None of those flat owners have any complaint regarding feature, fitment and building materials. It is complainants themselves who damaged their flat by placing about 100 number of tubs of flowers on the roof. There is no provision for drinking water, water connection in the agreement concluded between the parties. There is no deficiency in service on the part of the O.Ps and the case should, therefore, be dismissed in limini.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainant?
- Are the complainants entitled to get relief of reliefs as prayed for and if so, to what extent?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant vide his petition dated 8.3.2019. Evidence on affidavit is filed on behalf of the O.Ps. BNAs filed by the parties are also kept in the record after consideration.
DECISION WITH REASONS
Point no.1 & 2 :
Already heard the submissions of ld. Lawyers appearing for the parties. Perused the petition of complaint, written version and the evidences of the parties. Considered all these.
On perusal of the materials on record it is found that the possession of the flat was made over to the complainants in time. It is in the agreement of the parties that possession would be delivered to the complainants within 12 months of the date of agreement. The agreement was executed by the parties on 5.3.2007 and the possession of the flat was delivered to the complainants in the month of December 2007. So, it is found that there is no delay and negligence in the matter of delivery of possession of the flat to the complainants by the O.P.
It is further noticed that this case is filed by the complainants after expiry of more than 10 years from the date of delivery of possession. During this period, no complaint whatsoever has been raised by the complainants as regards the features, fitment and building materials of their flat. Legal notice is the first grievance made by the complainants, which is given to the O.P just a few days before the institution of this case. Be that as it may, let us see whether the complainants are entitled to the relief or reliefs as prayed for.
Before delving into discussion on this point, we should cast our attention to the two clauses of the sale agreement and those two clauses are reproduced as follows:-
“ 11) After the possession is handed over to the purchaser/purchaser’s if any addition or alternation is or about or relating to the said building are thereafter required to be carried out at the instance of the government, municipality or any other statutory authority, the same shall be carried out by the purchaser/purchaser’s in cooperation with purchaser/purchaser’s of other flats /car space in the said building at their own cost and the Developer shall not be in any manner liable or responsible for the same.
12. The purchaser shall be liable to bear all the taxes, charges for electricity and water bill which are common and other services after the possession of the flat/car parking spce. The builder shall make arrangement for a main meter in the building. The builder may make arrangement for purchaser’s separate meter at that building at the cost of the purchaser”.
From the above clauses of the agreement, it is crystal clear that the developer shall not be liable in any manner for any kind of addition or alternation of the building after delivery of possession and such addition and alternation of the building shall be carried out by the purchaser in cooperation with other purchasers. It is also discernable from clasue 12 as referred to above that the builder shall make arrangement for a main meter in the building and the builder may make arrangement for purchaser’s separate meter at that building at the cost of the purchaser. So, it is found that the liability of the builder to arrange for electric connection is up to the main meter of the building and not beyond that. Beyond the main meter of the building, the cost of the electrification is to be borne by the purchasers. So, the grievance of the complainant that electric phase work not done, appear to be not tenable in view of the above provisions of the agreement. There is no provision also found in the agreement as to the giving drinking water connection to the building where the flats of the complainants are lying as per the agreement. The complainants have alleged that the building is constructed with substandard materials, but there is no expert report placed on record to prove that building is actually made of with substandard materials. As the addition and alteration of the building is the liability of the purchaser in terms of clause 11 of the agreement, we are of the opinion that the complainants are not entitled to panting of the entire building outside and inside done by the O.Ps.
It has been contended on behalf of the O.Ps that the complainants received Rs.1, 45,000/- as refund amount form the O.Ps for the reason that they would complete the remaining 5% of the construction of the building on their own. To prove their contention, photocopies of two receipts have been filed on behalf of the O.Ps. The complainants have not denied these two receipts in their pleadings and also in their evidence.
Regards being had to this aspect of the matter , we do say that the two receipts filed on behalf of the O.Ps do never establish that Rs.95000/- was received by the complainant for doing incomplete works in his flat. Those two receipts show that the said amount was refunded to the complainant by the O.P for personal use in one case and as refund payment of registration amount in another case. It is admitted fact that 5% of the constructions of the flat has been left incomplete and it is the version of the O.P that the said incomplete work should have been done by the complainant as the complainant received the aforesaid amount from him for that purpose. Now, it is found that the above payment was not made to the complainant for doing incomplete work of their flats. In the circumstances, 5% of the construction work in the flat of the complainant has still remained incomplete. It is the legal obligation of the developer to complete those incomplete works and, therefore, he will have to complete this incomplete work of the flat of the complainants. But, he need not do any kind of addition and alteration of the building as he is not bound to do that in terms of the agreement as mentioned above.
In the result the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is decreed in part on contest against the O.Ps with a cost of Rs.5000/-.
The O.Ps are directed to deliver completion certificate of the project building to the complainants and to pay Rs.50,000/- as compensation for harassment and mental agony, within two months of this order, failing which, the compensation amount and amount of cost as referred to above will bear interest @10% p.a till full realization thereof.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
