DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 278 OF 2013
DATE OF FILING: 08.07.2013 DATE OF PASSING JUDGEMENT: 08.08.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : 1. Smt. Chhanda Saha, W/O – Sri Pradip Kumar Saha.
2. Smt. Jayeeta Saha, W/O – Sri Soumak Ghosh, D/O – Sri Pradip Kumar Saha, Both 1 and 2 of premises No. 2040, Nayabad, Flat No. – 4B, 4th Floor, Maruti Villa, P.S. – Purba Jadavpur, Dist. - South 24 Parganas, Kolkata – 700 099.
O.P/O.Ps : 1. M/S Maruti Realtors, A Proprietorship Firm, Having its Office at 74/24, P. Majumder Road, P.S. – Kasba, Kolkata – 700 078, Dist. - South 24 Parganas also at 77, Purbachal Lal Bahadur Sarani, P.S. – Kasba, Dist. - South 24 Parganas, Represented by its Sole Proprietor Smt. Debarati Roy, W/O – Sir Ajay Roy.
2. Sri Sumanta Sen, S/O – Late Sukumar Sen, Residing Premises No. – 2040, Nayabad, Flat No. – 2, 2nd Floor, Maruti Villa, Dist. - South 24 Parganas, Kolkata – 700 099.
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JUDGMENT
Sri Ananta Kumar Kapri, President
After having set-aside the judgment once passed in this case by this forum, the Hon’ble State Commission has been pleased to pass order in a FA/348/2014 on 26.11.2013 directing this forum to accept W/V which O.P. no. 1 will file and thereafter to dispose of the case in accordance with law. Accordingly O.P. no. 1 has filed the W/V and has also led evidence. The deck is now clear for passing judgment.
The epitome of the facts leading to the filing of the instant case by the complainants runs as follows.
One sale agreement dated 20.11.2011 was struck between O.P. no. 1, the developer and the complainants and thereby the developer agreed to sell a self-contained flat along with a car parking space, as succinctly described in schedule to the complainant, for a total consideration price of Rs. 11,50,000/-. Total consideration price was paid to the developer by the complainants and the developer also executed and registered the deed of conveyance in favour of the complainants. Possession of the flat has also been delivered to the complainants. On the date of registration of deed of conveyance i.e. on 14.12.2011, possession letter was delivered to the complainants by the said developer. Now it is alleged by the complainants that the possession of car parking space has not been delivered to them by the developer, the caretaker booth is not also constructed and the lift service of the building is not also properly maintained. With all these allegations the complainants have filed the instant case praying for passing an order directing the developer to provide car parking space to them, to construct caretaker booth, to provide smooth lift service and the completion certificate of the building and also to pay compensation etc. Hence, this case.
O.P. no. 2 is the landowner. It is submitted by him that he is not service provider of the complainants and that the O.P. no. 1 is under obligation to fulfill demands of the complainants. O.P. no. 1, i.e. the developer has filed the W/V wherein all allegations of the complainants have been denied. According to O.P. no. 1, possession of car parking space and flat have already been given to the complainants; possession letter has made over to them; lift service is in proper condition and the flat owners have been enjoying the same since 2011 and also maintaining the same by the fund of common maintenance.
Upon the averments of the parties, the following points are formulated for consideration.
POINTS FOR CONSIDERATION
- Are the O.Ps guilty of deficiency in service as alleged by the complainants?
- Are the complainants entitled to get relief and if so, to what extent?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by both the complainants and O.P. no. 1. BNA filed by O.P. no. 1 is also kept in record after consideration.
DECISION WITH REASONS
Point nos. 1 and 2 :
O.P. no. 1 has placed on record 2 documents which appear to be very much vital in the process of our adjudication of the grievance of the complainants. These 2 documents are : 1) A copy of mutation certificate issued by KMC on application dated 30.07.2014 of the complainants for flat and car parking space (CPS) and 2) A copy of “License to work a lift” in Form-C. From the copy of mutation certificate which goes undisputed, it is found that the complainants applied for mutation of their names before the KMC in respect of their flat and CPS i.e. car parking space. That apart, the developer has filed a copy of possession letter dated 18.01.2012 on record and it appears therefrom that the possession of the flat and car parking space has been delivered to the complainants on 18.01.2012 and the complainants have received the said possession letter that day having signed upon the same. The possession letter also goes undisputed. Regard being had to these 2 documents, we do never feel any manner of hesitation to hold that the possession of car parking space has already been delivered to the complainants on 18.01.2012 and therefore it is found that the grievance of the complainants regarding non-delivery of car parking space by the developer appears to be without any merits.
Now about the grievance against lift service. It is the grievance of the complainants that the lift service is not provided properly by the developer. The developer has installed lift in the subject building. Lift service has also been renewed from time to time by the developer and it becomes so manifest from “Form-C”. Lift service has been renewed on 10.09.2014, 15.01.2015, 14.01.2016 and 24.07.2017. Taking into consideration the fact of renewal of lift service, we do hold that the lift service is also provided properly in the subject building by the developer and the grievance of the complainants regarding mal-service of lift also appears to be apocryphal. One thing which we cannot but mention here is that the developer has no obligation to provide proper maintenance of lift service as long as the subject building exists. It is the dwellers of the subject building who will look after the maintenance of the lift service after the possession of the flat is once handed over to the flat owners.
Regarding the grievance of the complainants as to non-supply of the completion certificate by the developer, it is the version of the developer that he has taken step for getting completion certificate. But, delay is caused by the municipality is in issuing such certificate and he has nothing to do with the municipality.
Another grievance of the complainants is that the developer has not constructed caretaker booth in the premises of subject building. In the context of such grievance we have to see whether the developer is under any obligation to construct caretaker booth in the premises of subject building. In sale agreement of the complainants, vide clause 3, schedule-c thereof, there has a provision of common Darwan’s living area, if any. The words “if any” imply and imply only the discretion of the developer to provide caretaker’s booth. In deed of conveyance, vide schedule-c, there is nothing mentioned about Darwan’s room. So, if we take into account the 2 facts of sale agreement and deed of conveyance as mentioned just above, it indicates and indicates that there is no obligation on the part of the developer to construct a Darwan’s room as demanded by the complainants. So, this demand of the complainants also appears to be full of inanity.
Upon what have been discussed above, it is found that the complainants are only entitled to completion certificate of their building and nothing else. As most of the grievances of the complainants have fallen on their faces, the complainants are not given any compensation on account of harassment and mental agony.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint case be and the same is allowed partly on contest against the O.P. no. 1 with a cost of Rs. 10,000/- and dismissed on contest against O.P. no. 2 without any cost.
O.P. no. 1 is directed to deliver a copy of completion certificate of the subject building to the complainants within 2 months of this order failing which the complainants are at liberty to execute this order in accordance with law.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree Member President
Directed and corrected by me
President
