Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
Date of Order : 31.03.2016
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to complete the abovementioned work and remove the described deficiency in service at the earliest latest within 4 weeks and further to compensate the complainant for the mental agony, sufferings on account of deficient services on the part of the builder by payment of Rs. 1,00,000/- as cost and compensation for deficiency. In case of failure on the part of the builder opposite party to complete the agreed work within stipulated time further payment of the total cost of Rs. 5,00,000/- and above along with interest @ 24% as being charged by the builder in the agreement for the delay in payment on the part of the buyers for completion of deficiency works through another agency at the present market rate.
- The facts of this case lies in a narrow compass which is as follows:-
Complainant has asserted that he is the Honorary Secretary of the Mahindra Apartment and he is one of the flat owner being buyer of flat No. 104 in that Apartment along with ample parking space for a consideration money of Rs. 4,88,625/- from opposite party as per agreement dated 14.06.2004. This agreement has been made between builder who are opposite party and the buyer and the land owner.
It is the case of the complainant that as per agreement dated 14.06.2004 referred above total consideration money was paid to opposite parties and the possession of semi finished flat was given to him and other buyers also.
The grievance of the complainant is that the aforesaid opposite parties who are builders have not completed the apartment as per agreement due to which he (complainant) and other buyers are suffering much.
We think it proper to reproduce the fact in toto which have been mentioned in Para – 1 to 6 of the Para – 2 because in order to record our finding these reproduction is necessary which are as follows, “ Parking space is not sufficient for the flat owner as three parking spaces have been sold to outsiders without any consent at their cost and liability as such flat no. 104 has to use the passage in front of generator room as his parking space though Rs. 50,000/- only was paid extra as cost of his exclusive covered parking space. This is contrary to clause 1.8 at page of the agreement.”
“as per entry at Sl. No. 5 of annexure at page 19 of the agreement it was agreed that parking area with checkered tiles will be provided but still the parking area is simple rough surface of war concrete mixture only and the final finishing work of installation of tiles has not been done despite several requests.”
“as per the agreement the builder was required to provide many amenities to the buyers (clause – C, Amenities at page – 20 of the agreement) but despite specific detail about one telephone point in each flat with junction box at central location till date no telephone point in each flat not any central junction box has been provide by the builder.”
“there is no fire safety arrangement in any part of the apartment and the residents are living without any arrangement for fire safety.”
“as per clause – C, schedule – B at page 17 of the agreement every flat owner will had proportionate share in the common space in the said building like stair case and its landings on all the floors, common electrical meter room, common passage and lobby on all floors etc. as well as water pump rooms, community hall, society office and all common service etc. but there is no common electrical meter room, no community hall or society office as agreed by the builder.”
“the installation of sub standard electrical fittings, inferior and under strength cable connection of less power from the transformer to the meter box had resulted cable bursting in past causing loss of more than Rs. 50,000/- collectively to all the flat owners and under compulsion they have to make rearrangement of electric supply by relying the whole cable and changing the whole wiring at their own cost but the builder is not ready to hear any thing despite several meeting.”
It has been further stated that the agreed cost of the flat no. 104 having 805 Sq. Ft. area and parking space was paid to opposite party builder as per wish and desire of the opposite party and the letter dated 20.10.2009 of opposite party ( vide annexure 4) clearly shows that there is no dues of the opposite parties.
The complainant has asserted that though the agreed amount as per agreement with builder was Rs. 4,88,625/- but despite the fact he has paid Rs. 5,08,625/- as will appear from annexure – 4.
It is also case of the complainant that other flat owners have also paid higher amount to the opposite parties.
The complainant has asserted that when flats of the Mahindra Apartment purchased by him and other buyer the same was not completed as per agreement by opposite parties then vide annexure – 5 he has given notice to the complainant but the grievance of the complainant has not been fulfilled.
On behalf of opposite parties a counter affidavit has been filed in which the opposite parties have completely denied the allegation of the complainant. In Para – 10 of written statement the opposite parties have asserted following facts, “ that the statement made in Para – 4 (2.4, 2.5 and 2.6) of the complaint petition is not correct. It humbly submitted that the opposite parties have not extra charged for electricity and other works. Annexure – 1 of the complaint petition shows (others charges) for electrical connection. The opposite parties have provided the facility in the light of the agreement. No extra charges provided by the flat owner for fire safety. The opposite parties have not got extra charge for fire safety from the complainant and other flat owner.”
The complainant thereafter has also filed a written argument repeating the same fact which he had mentioned in his complaint petition.
We have heard the learned counsel for the parties.
In order to record our findings we have reproduced certain facts from the complaint petition and as well as written statement.
From careful perusal of the facts mentioned in the complaint petition as well as written statement it is crystal clear that whereas the complainant has mentioned the entire details of his grievance the opposite parties have not denied by giving cogent evidence rather they have choosen to file cryptic written statement in order to observe the rituals only. The details of payment made by the complainant vide annexure – 4 and other facts clearly shows that opposite parties have not fulfilled their part of agreement while the complainant and other buyer of the apartment have fulfilled their part of agreement. This fact is also clear from annexure – 5 which is a legal notice because they have also not replied to the legal notice of the complainant. In our opinion the facts mentioned in Para – 2 (1 to 6) have not been specifically denied by filling cogent materials to enable to prove that facts mentioned in aforesaid paragraphs and annexure – 4 and 5 are not the real fact and non existent.
In our opinion the aforesaid fact definitely constitute deficiency on the part of opposite parties.
Hence we direct the opposite parties jointly and severally to complete the remaining work which are unfulfilled as per terms of the agreement dated 14.06.2004 vide annexure – 1 within the period of four months from the date of receipt of this order or certified copy of this order failing which the opposite parties will have to pay an interest @ 12% on the amount of Rs. 5,08,625/- till the aforesaid deficiency are removed as per agreement referred above.
We further direct the opposite parties to pay Rs. 50,000/- to the complainant by way of compensation and litigation costs within the aforesaid period of four months.
Accordingly this complaint petition stands allowed to the extent referred above.
Member President
