DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,

 KOLKATA-700 0144

      C.C. CASE NO. __279_ _ OF ___2013

DATE OF FILING : 8.7.2013         DATE OF PASSING JUDGEMENT: 7.12.2018

Present                 :   President       :   Ananta Kumar Kapri

                                 Member(s)    :    Subrata Sarker  & Jhunu Prasad

COMPLAINANT   :             Smt. Kakali Sur, daughter of late Ganendra Nath Sur of premises no. 2040, Nayabad, Flat no.4A, 4^th Floor, Maruti Villa, P.S Purba Jadavpur, Kolkata – 99.

•  VERSUS  -

O.P/O.Ps                    : 1.  M/s Maruti Realtors, office at 74/24, P. Majumder Road, P.S Kasba, Kolkata – 78 and also at Purbachal Lal Bahadur Sarani, Kolkata – 78, P.S Kasba, represented by its Sole Proprietor Smt. Debarati Roy, wife of Sir Ajay Roy.

                                   2.   Sri Sumanta Sen, son of late Sukumar Sen of 2040, Nayabad, Flat no.2, 2^nd  Floor, Maruti Villa, P.S Purba Jadavpur, Kolkata – 99

_______________________________________________________________________

                                                J  U  D  G  M  E  N  T

Sri Ananta Kumar  Kapri, President

              Alleging deficiency in service on the part of the O.P-1, i.e the developer, the complainant has filed the instant case with the following prayers against him:

1. To direct him to deliver the car parking space of 100 sq.ft or in the alternative refund of Rs.1,50,000/- with Rs.11000/- as cost of registration.
2. To  direct him to construct caretaker booth .
3. To direct him to hand over possession letter of the flat.
4. To direct him to deliver completion certificate of the flat.
5. To direct him to remove deficiency in lift service.
6. To direct him to pay Rs.1 lac as compensation for harassment and mental agony and
7. To direct him to pay litigation cost of Rs.15000/-.

This case was once decreed exparte in favour of the complainant on 26.11.2013 and the instant developer preferred an appeal before the Hon’ble State Commissionand in that appeal bearing no.FA/1331/2013,the decree passed herein was set aside and the case is remanded back to this Forum with a strict direction to O.P-1 i.e the instant developer to file written version of his statement on 30.1.2017 positively, otherwise, the case would be decided exparte. Another appeal against the said award was also preferred by the instant complainant and the same order directing the O.P-1 to file written statement on 30.1.2017 was also passed by the Hon’ble State Commission in that appeal being F.A/1369/2013. In compliance with the direction of the Hon’ble State Commission, the case is heard exparte against him. After passing of the order regarding hearing of the case exparte, the O.P-1 again moved the Hon’ble State Commission in Revision being no.RP/65/2017, challenging the order of exparte hearing as aforesaid and the said revision case of O.P-1 was also dismissed by the Hon’ble State Commission after having considered the facts and circumstances of the case. Although the case is heard exparte against O.P-1, he has filed written statement which is kept in the record. In the written statement, it is averred by him that he registered the deed of conveyance in respect of the subject flat and also handed over the possession of the flat and car parking space to the complainant on 19.12.2011. The complainant has been in possession of the said flat and car parking space at present. She has also mutated her name in respect of the flat and car parking space in Kolkata Municipal Corporation ,after receiving possession letter from him. The flat is constructed in accordance with the revised plan and there is no provision whatsoever in that revised plan about any caretaker booth. He installed lift in the building of the complainant for use by all the flat owners and all flat owners have been using the same without any kind of disturbance. He has also taken steps for getting completion certificate from the KMC and has also deposited the requisite fees. There is no deficiency whatsoever on his part and the complaint being frivolous one should be dismissed in limini with cost.

The O.P-2 is the land owner and he has also filed written statement ,wherein it is mainly contended inter alia that he being land owner is not the service provider of the complainant and, therefore, he is not liable in any way to the complainant.

                Upon the averments of the parties, the following points are formulated for consideration.

POINT FOR DETERMINATION

1. Is  there any deficiency in service on the part of the O.P-1 as alleged by the complainant?
2. Is the complainant  entitled to get relief or reliefs as prayed for ?

EVIDENCE OF THE PARTIES

           Evidence on affidavit is filed by the complainant. One evidence on affidavit is also filed by the developer i.e O.P-1. He has also filed BN A ,kept in the record inspite of the fact that the case is heard exparte against him. BNA filed by the complainant is also kept in the record after consideration.

DECISION WITH REASONS

Point no.1 & 2 :

              Ld. Lawyer appearing for the O.P-1 has contended that the written statement and BNA filed by him may be taken into consideration by the Forum, although the case is heard exparte against him. To buttress his contention she has placed reliance upon a Ruling reported in 1988 SCC (4) 619 (Modula India Vs. Kamakshya Singhdeo) . The aforesaid ruling was passed by the Hon’ble Apex Court in a case, which was filed for eviction of a tenant under West Bengal Premises Tenancy Act. The object of Section 17(3) of the said Act was to extend protection to the tenants against unlawful eviction of them by their landlords. So, considering the facts and circumstances of the said case and also the scope and objective of the said Act, the Hon’ble Apex Court observed therein that a tenant might be given an opportunity of contesting the eviction suit against him by giving him a chance of cross-examining the witness of the plaintiff and arguing the case, although the defence of the tenant was struck out in that case. The ratio of the said case seems to be not applicable to this case ,because the object, scope ( speedier justice to consumer) of C.P Act is quite different from those of West Bengal Premises Tenancy Act and if the O.P is given such a latitude to contest the case at the stage of exparte hearing, the object of speedy disposal of the case will be hopelessly frustrated. Inspite of this legal position, we do think that it will be just and proper to consider the facts of written statement and the BNA for interest of justice, although the case is heard exparte against O.P-1 and accordingly we feel no kind of hesitation to consider the written statement and BNA filed by O.P-1.

              Now comes the question whether the O.P-1 has committed any kind of deficiency in service by not providing car parking space of 100 sq.ft to the complainant as agreed upon between them. The complainant’s version is that the possession of the car parking space has not been handed over to her by the O.P-1, whereas O.P-1 submits that the said car parking space has been delivered to the complainant on the very date of registration of the deed of conveyance i.e on 19.12.2011. An Advocate Commissioner was appointed to conduct local inspection on the car parking space and the said Advocate Commissioner namely Subrata Mondal has filed his report on 4.6.2018 before the Forum, which is kept in the record. In his report,  he has submitted that the total area of the car parking space is 3,45 sq.ft and that there are 3 car parking spaces . It is gathered from his field note which is attached to his report that there are three car parking spaces . It is further noted therein that third car parking space has already been allotted to the complainant as stated by the O.P-1 ,who was also present at the spot during inspection conducted by the Ld. Advocate Commissioner. So, it is found that the matter has come to a very narrow scope. According to the O.P-1, the third car parking space has been delivered to the complainant, but the complainant submits that no car parking space has been delivered to her.

                 In the circumstances, we think that it will be far better if we direct the developer i.e O.P-1 to demarcate the third car parking spaces of the complainant and if this is done, the matter will be solved easily.

                 Another grievance of the complainant is that there is deficiency in the lift services and the developer has not been removing the said deficiency  inspite of repeated grievance by her. The complainant is required to prove that the lift is not functioning properly. In the Building of the complainant, there are also other flat owners except the complainant. The complainant could have cited the evidence of some of those flat owners to prove that the lift has not been functioning properly and that the developer has not been taking any action to put the lift in smooth function. None of the flat owners is coming before the Forum in support of the contention of the complainant. Regards being had to this aspect in particular, we are of the opinion that the lift has been functioning properly and the grievance of the complainant in this regard has no basis at all.

              The complainant has sought for issuing a direction to the developer to construct a caretaker booth. On perusal of the deed of conveyance ,it is found that there is no provision for construction of a caretaker booth by the developer. So, this grievance of the complainant is also turned down.

             It is true that the developer has not been able to provide completion certificate to the complainant. He has submitted that he has deposited the requisite fees before the KMC and that the KMC has not issued any completion certificate as yet due to some administrative problem. If the KMC does not issue any completion certificate inspite of compliance of procedural requirements by the developer, the developer can have nothing to do with that thing and, therefore, he cannot be blamed.

             Considering the facts and circumstances of the case, it appears that there is no ground for causing harassment and mental agony to the complainant by the act of the O.P-1 and ,therefore, no compensation for harassment and mental agony is awarded to the complainant.

             O.P-2 is merely the land owner; he is not the service provider of the complainant and, therefore, the complaint deserves to be dismissed against him .

              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.P no.1 with cost of Rs.5000/- and dismissed exparte against O.P no.2 without any cost.

             The developer i.e O.P-1 is directed to specifically demarcate the car parking space of the complainant ,which has been delivered by him to the complainant within a month of this order positively, failing which he will have to refund Rs.1,50,000/- which has been taken by him from the complainant as consideration price for the car parking space together with Rs.11000/- as cost of registration for that car parking space only with interest @18% p.a from the date of registration of deed of conveyance till full realization thereof.

         Let a free copy of this order be given to the parties concerned at once.   

                                                                                                                   President

I / We agree

                          Member                                      Member

          Dictated and corrected by me

                                    President