West Bengal

Siliguri

CC/2012/144

SMT. SUMI BIHANI, - Complainant(s)

Versus

1) SMT SANDHYA MODAK, - Opp.Party(s)

30 Sep 2015

ORDER

IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 144/S/2012.                DATED : 30.09.2015.                 

BEFORE  PRESIDENT                : SRI BISWANATH DE,

                                                                          President, D.C.D.R.F., Siliguri.

 

 

                      MEMBERS               : SMT. PRATITI  BHATTACHARJEE &

  SRI PABITRA MAZUMDAR.

                                                             

COMPLAINANTS             1.         : SMT. SUMI BIHANI,

                                                              W/O Sri Shankar Bihani,

 

2.         : SRI SHANKAR BIHANI,

  S/O Late Ram Chandra Bihani,

  Both are resident of Nayabazar,

  P.O. & P.S. – Siliguri, Dist.- Darjeeling

 

                                                      

         O.Ps.                     1.         : SMT. SANDHYA MODAK,

  W/O Sri Abani Mohan Modak,

  Mukunda Das Road, Milanpally,

  Ward No. 27 of SMC,

  P.O. & P.S. – Siliguri, Dist.- Darjeeling.

                                                                                                                                                           

2.         : SMT. PARUL RANI MODAK,

  W/O Late Golak Chandra Modak,

  Mukunda Das Road, Milanpally,

  Ward No. 27 of SMC,

  P.O. & P.S. – Siliguri, Dist.- Darjeeling.

 

3.         : SIDDHI VINAYAK CONSTRUCTION,  

  A Proprietorship firm having it’s office at

  Mukunda Das Road, Milanpally,

  Ward No. 27 of SMC,

  P.O. & P.S. – Siliguri, Dist.- Darjeeling.

 

4.         : THE BRANCH MANAGER,

                                                                          Axis Bank Limited, Asset Centre,

                                                                          Spectrum Building, Sevoke Road,

                                                                          P.O. & P.S. – Siliguri, Dist.- Darjeeling.

                                                                                                                                                                                                           

FOR THE COMPLAINANT                      : Sri Sunil Kumar Sarkar Advocate.

J U D G E M E N T

Mr. Biswanth De, Hon’ble President      

 

The case of the complainant is that the complainant made

 

Contd.....P/2

-:2:-

 

 

agreement with OP Nos.1, 2 & 3 in the month of March, 2009 for purchasing on flat for Rs.15,52,500/- and a sum of Rs.1,00,000/- for open garage totalling Rs.16,52,500/- as per ‘B’ Scheduled property.  Before the agreement, the complainant paid Rs.4,13,413/- through OP Nos.1 & 2.  The complainant no.2 has taken loan to the tune of Rs.14,37,957/-.  Rs.12,22,344/- was paid to the OP Nos.1 & 2 by two cheque.  After construction of the building, a sum of Rs.16,45,757/- was paid to the OP Nos.1, 2 & 3 and balance was Rs.16,743/-. 

In the month of March, 2010, OP Nos.1, 2 & 3 have handed over the key of the said flat to the complainant.  The complainant found that said flats are not finished or made as per specification mentioned in the said agreement.  The flats and inside decoration was incomplete.  The complainant states that there were many other defects; the complainant has finished those defects at their own cost and expenses more than Rs.1,50,000/-.  Thereafter, the complainant had taken possession of the said flat and they have been residing there. 

The complainant requested the OP Nos.1, 2 & 3 to adjust the balance consideration amount of Rs.1,50,000/- and to execute the Deed of Sale in favour of the complainants, and to present the same before the registering authority for registration. 

It is also further case of the complainant that complainant was unable to pay the instalments as OP No.3 has not completed the construction works as per specification and OP No.1 to 3 have not executed the Sale Deed in their favour. 

The OP No.4 issued notices on several occasions to the complainant for repayment of the loan.

It is also specific case of the complainant that the complainants were ready and willing to perform their obligations, but OP No.3 neglected to construct the said flat as per specification mentioned in the said agreement and OP No.1 & 2 neglected to execute the Deed of Sale in

 

Contd.....P/3

-:3:-

 

 

favour of the complainants.  Therefore, as the OP Nos.1 to 3 have not performed their obligations, in terms of their agreement, they are unable to use the said flat.  Accordingly, the complainants have been suffering for mental agony and after adjustment of Rs.16,743/-, the complainant is entitled to get Rs.1,33,257/- from the OP Nos.1 to 3, but they refused to pay the same.  Accordingly, the complainant has been forced to come before this Forum with prayer therein.

The OP Nos.1 & 3 have filed Written Version denying inter-alia all the material allegations as made therein.  It is specific case of the OPs that they are entitled to get Rs.46,743/-, since the complainant did not pay Rs.30,000/- for electrical purpose.  It is also specific case of the OPs that OPs is entitled to get small amount, but the complainant did not pay the same and get the Sale Deed executed.  The complainant did not take any step for execution of Sale Deed, because the complainant did not want to secure the loan taken from the OP No.4. 

It is also case of the OPs that OP No.4 filed a case before the Debt Recovery Tribunal II at Kolkata being application no.55 of 2012 for the said sum of money. 

It is also OPs case that the complainant filed this case after two years and ten months from the time of taking possession of the flat.

It is case of the OPs that flat was handed over in a finished condition.  The loan was disbursed by OP bank after verification and scrutiny of the flats by its field officers and valuers.  The OPs never denied to execute the Sale Deed.  As soon as the complainant would pay the entire consideration, the Deed of Sale would be executed in their favour.     

The OP No.3 had handed over the finished flat to the complainant.  But since the complainant did not pay the remaining balance amount, the OPs did not execute the Sale Deed.  The OPs are ready and willing to execute Sale Deed as soon as full payment is made.  Accordingly, there is no reason to file this case and the case should be dismissed.     

Contd.....P/4

-:4:-

 

 

 

The complainant has filed the following documents :-

1.       Xerox copy of Power of Attorney dated 23.12.2012.

2.       Xerox copy of Deed of Agreement dated 13.03.2009.

3.       Xerox copy of letter issued by the Bank dated 03.08.2009 with schedule of payment.

OPs have not filed any documents.

 

Points for decision

 

1.       Whether the complainant has proved his allegation that he got incomplete and defected flat?

2.       Whether the OP did not make execution of Deed of Conveyance?

 

Decision with reason

 

Both these issues are taken up together for the sake of convenience and brevity of the case. 

Complainant has filed evidence-in-chief stating the fact laid down in the complaint. 

OPs also filed evidence-in-chief.

With respect to the evidence of the complainant, the OP has cross-examined by putting question. 

Q. No.5.      Whether you have submitted any evidence before the Ld Forum regarding your allegation of incomplete work in your flat?

Q. No.8.      “Kindly say that after receiving possession, whether you have raised any objection regarding incomplete condition of the flat immediately thereafter ?”

Q. No.17.    “I submit that as you have deliberately failed to pay the EMI to the bank in time and therefore to avoid such liability of payment of EMI to the bank cooked up the story of incomplete work of the flat and made false and baseless allegations against the opposite party no. and 3?

Q. No.29.    “I submit that the opposite party no.3 had performed all its

 

Contd.....P/5

-:5:-

 

 

liabilities and had handed over the finished flat to the complainants but as the complainants failed to pay and clear the balance consideration price the opposite party no.3 did not take steps to execute deed of conveyance in their favour ........ do you admit or not?”

With respect to the above question, the complainant replied in :-

Q. No.7

Ans.:-  In the middle of the month of March, 2010, i have taken possession but I cannot remember the exact date. 

 Q. No.8

Ans.:- After taking possession, we have ventilated our grievance regarding incompletion of construction and when the opposite parties did not pay any heed to that, we have finished the same at our own cost. 

 Q. No.15

Ans.:- Yes, I have mentioned specifically regarding incompletion of the works of the flat.  

 Q. No.23

Ans.:-  I cannot say the exact date but we have received summon in respect of original application being no.55/2012 filed by the Axis Bank to the Debt Recovery Tribunal and thereafter, we have paid entire amount to the Bank and at present no amount is outstanding. 

 Q. No.28

Ans.:-  The OPs No.1 & 2 are bound to execute deed of conveyance in favour of us after receiving the balance consideration amount (after adjustment the amount of Rs.1,50,000/- with the balance amount). 

From the above oral evidence, it transpires that the complainant did not mention the description of defects in his evidence nor in the plaint specifically.  The record also shows that there was no report of expert regarding incomplete flat.  Apart from the above, the question which has been raised by the OP that the complainant instituted this case after two years.  The complainant stated in question no.7 that in the middle of the month of March, 2010, he had taken possession.

Contd.....P/6

-:6:-

 

 

It is submitted by the OP that the case ought to have been filed by the complainant by March, 2012 i.e., within prescribed limitation period.  The complainant also did not file any prayer to condone limitation.  It is argued that the case has been instituted in the month of December, 2012.  The record also shows that the case has been instituted after two years six months from the date of taking possession by the complainant. 

The argument of the OP on this point of maintainability that the case has been instituted after limitation period cannot be brushed aside as per facts and circumstances of this case.

It is argued by the complainant’s advocate that in this case there is continuing cause of action, not from the date of taking possession.

Complainant argued that cause of action did not arose from date of taking possession, but no such case, the cause of action is continuing one.  He reiterated placing reliance upon principle of law as laid down    in :-

1)       Order dated 10/12/2010 passed in F.A. No.334 of 2010 State Commission, West Bengal.

2)       W.B.L.R., 2013 Vol-4 Page No.316.

3)       W.B.L.R. 2012 Vol.-I Page No.653. 

 

But facts of those cases are unlike to the fact of case in our hand.   

There is no document to show that the aforesaid flat was incomplete at the time of taking possession by the complainant. 

The complainant has instituted the case prying for compensation.  The burden of proof lie on the complainant to prove that there was defect in the flat, not in accordance with the agreement and that Rs.1,50,000/- was necessary for remove the defect.  There is no cogent evidence to prove that the complainant got incomplete flat in the month of March, 2010.  The complainant did not take proper recourse regarding the limitation period as prescribed in the Act. 

So, after brief discussion over the evidence of the complainant

 

Contd.....P/7

-:7:-

 

 

itself, without enlarging the body of discussion, it can be concluded that complainant fails to prove his case with cogent evidence. 

The material on record inspires confidence in the mind of this Forum to hold that the adduced evidence is insufficient to get compensation as per Section of the Consumer Protection Act, 1086.

As such the complaint is disallowed. 

Hence, it is

                   O R D E R E D 

that the Consumer Case No.144/S/2012 is dismissed on contest, but without cost.

Let copies of this Judgment be supplied to the parties free of cost.

 

 

-Member-                   -Member-                         -President-