DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
MUCHIPARA, BURDWAN.
Consumer Complaint No.137 of 2015
Date of filing:26.06.2015 Date of disposal:20.01.2016
Complainant:1. Biplab Roy
2. Amt. Aparna Roy
2/B, Soumali Apartsment, Road No.9, Aurobinda Nagar, P.O.-Hindustan
Cables, Burdwan-713335.
-VERSUS-
Opposite Party: 1. Proprietor, Akriti Developer, Purobi Apartment, Road No.9, Aurobinda
Nagar, P.O.-Hindusstan Cable, Asansol, Burdwan-713335.
2. M/s. Akriti Developer, represented by Proprietor Smt. Purabi Chakraborty,
Purobi Apartment, Road No.9, Aurobinda Nagar, P.O.-Hindusstan Cable,
Asansol, Burdwan-713335.
Present : Hon’ble President: Sri Asoke Kr. Mandal
Hon’ble Member : Smt. Silpi Majumder
Appeared for the Complainant: Authorized representative R.S.Ganguly.
Appeared for the Opposite Party No.1 & 2: Ld. Advocate Debdas Rudra.
JUDGEMENT
This is a case U/s. 12 of the C.P. Act, 1986 with the prayer for an award directing the O.Ps. to remove the alleged defects of the flat in question, to pay compensation of Rs.41,400/- and Rs.1,00,000/- for deficiency in service, mental pain, agony and harassment and litigation cost of Rs.5000/- i.e. total Rs.1,46,400/-, to the complainant.
The complainants’ case in short is that the O.P. No.2 is the developer and O.P. No.1 is the proprietor of O.P. No.2. The complainants with an intention to purchase flat No.2/B having super build area 1156 sq.ft. at the cost of Rs.10,40,400/-, entered into an agreement with the O.Ps. on 17.12.2011. and before such agreement they booked the flat by paying advance money of Rs.50,000/- on 21.7.2010. After receiving full payment on 9.8.2014 the O.Ps. delivered the possession of the flat but no final bill was issued in favour of the complainants. Subsequently, on 12.8.2014 the O.Ps. executed and registered a sale deed in respect of said flat in favour of the complainants. After taking possession of the flat the complainants detected that the main entrance door was made of ply wood instead of paneled door as per agreement, sink in the kitchen got cracked and damaged, no electric connection has been provided for washing machine, interior quality stone materials are used in the floor, roof terrace has not been done causing water logging on the floor, illegal construction of one toilet in front of the main entrance has been made for use of the Care Taker, causing nuisance, unhealthy atmosphere, no room has been provided for the Care Taker, floor of slopping not properly done which causes water logging, kotah stone flooring not done on the stair case as per agreement, the electric meter boards have been fitted very nearer to the main entrance which may at any time cause accident and generator transformer, meter room, soak pit, underground water reservoir, boundary wall with gate, parking space have not been provided. They by letters dated 12.10.2014 and 18.1.2015 intimated such defects to the O.Ps. and requested them to remove such defects. Lastly by sending a letter dated 27.4.2015 through registered post intimated such defects and requested them to remove the defects but the O.Ps. did not pay any heed to such request.
In the agreement for sale super build area has been shown 1156 sq.ft. and the cost of which is Rs.10,40,400/- considering 20% extra towards common portion. But in the registered sale deed it has been mentioned 1161 sq.ft. at Rs.10,46,400/- with 20% extra. On calculation the difference of area comes to about 46 sq.ft. and the cost of this difference is Rs.900X46= Rs.41,400/- which should be adjusted as per agreement but the O.P. did not adjust the amount which is violation of agreement. The complainant approached before the Burdwan District Consumer Protection & Welfare Centre to interfere the matter for settlement of the disputes but the O.Ps. after receiving notice dated 22.12.2014 did not appear before the BDCP & Welfare Centre. They only by writing a letter dated 4.1.2015 denied all the allegations of the complainants. Hence, this case was filed with the prayer as mentioned above.
The O.P. No.1 & 2 contested this case by filing a single written version while stating inter-alia that the complainants have no cause of action, the case is not maintainable and the complainant has filed this complaint before this Forum with malafide intention. It has been further stated by these O.Ps. that the complainant entered into an agreement with the O.Ps. to purchase the flat No.B in the second floor of Soumali Apartment on the north west side containing a super build up area 1156 sq.ft. at a total consideration money of Rs.10,40,400/-, the O.Ps. within the stipulated period made complete the construction of the flat and as per agreement the O.Ps. delivered possession of the flat within the stipulated period after receiving the full consideration money, the O.Ps. after getting the approval of the sanctioned plan started construction and during the construction of said flat the complainants were interfering and inspecting the construction work and each and every time they were giving instruction to the O.Ps. to make some extra work according to their choice and desire, but during the course of construction the same is varied to some higher limit, there is a great possibility of varying the area of the building since the civil construction tolerance limit could not be considered due to many reasons i.e. size of bricks, bonding and also during construction some works were added for this purpose, inspite of giving all such facilities the complainants file this case against the O.Ps. with ill motive and malafide intention, after taking possession of the flat the complainants did not make any complaint either verbally or in writing regarding any defects and dispute of the flat, the complainants paid the full consideration money for flat on 9.8.2014 and on the same date the O.Ps. delivered the possession of the flat to the complainants and subsequently on 12.8.2014 the O.Ps. executed and registered the deed of sale in favour of the complainant. So, there is/was no deficiency in service on the part of the O.Ps. It has been claimed by these O.Ps. that the complainant should be dismissed with cost.
DECISION WITH REASONS
To prove their case the complainants have relied upon their evidence on affidavit and photocopies of some documents which are money receipts showing payment of consideration money, possession delivering certificate, deed of agreement dated 17.12.2011, sale deed executed in favour of the complainant on 12.8.2014 and letters written by the complainants in the address of the O.Ps. On the other hand the O.Ps. have relied upon their evidence on affidavit and the documents on which the complainants have relied except the photocopies of the letters written by the complainants in the address of the O.Ps.
Considering the materials on record and the contains of the pleadings it appears that the complainant entered into an agreement to purchase the flat No.B in the second floor of Soumali Apartment, super build up area 1156 Sq.ft. at a consideration of Rs.10,40,400/-. It is admitted by the contesting parties that after construction of the flat the super build up area became 1156 sq.ft. The sale deed executed in favour of the complainants clearly show that the complainants purchased said flat measuring 1156 sq.ft. paying the total value of the area after calculation at the rate which has been mentioned in the agreement. In the written version the O.Ps. have stated that during the course of construction the measurement of the flat was varied to some higher limit due to size of bricks, bonding and also during construction some works were added as per desire of the complainants. This case of the O.Ps. has not been denied by the complainants. In the agreement in question in para-8 it has been clearly mentioned that in any case any differences be found in the building the difference of cost under this agreement will be adjusted and the certificate of the architect from the developers side will be final and binding on both the parties. So, in this connection we find no laches or deficiency in service on the part of the O.Ps. In para-4 of the agreement it has been mentioned that on payment of full consideration money by the purchaser the developer shall transfer the flat together with un-divided proportionate share in land by proper deed of conveyance at the costs and expenses of the purchaser. In para-3 of the agreement it has been mentioned that the developer shall complete the flat and hand over the possession of the same within 24 months from the date whereof together with common facilities as specified in schedule-B unto the purchaser on paying full consideration money. It is admitted that the complainants paid full consideration money within the period ended with 9.8.2014 and on said date the O.Ps. delivered the possession of the flat and within the considerable period i.e. on 12.8.2014 the O.Ps. executed and registered the required sale deed in respect of the flat in question in favour of the complainants. So, in this matter also we hold that there was no deficiency in service on the part of the o.Ps.
In the complaint the complainants have brought some specific allegation regarding construction and flooring etc. of the flat and they have mentioned such defects and deficiency in service in para-7 of the complaint. As the complainant have brought the allegations as mentioned in para-7 of the complaint, the burden of prove in this connection is lying upon the complainants but to prove the allegation as mentioned in para-7 of the complaint practically they have failed to produce any corroborative evidence. In this connection the complainants have only relied upon the evidence on affidavit submitted on behalf of the complainant. This evidence has not been corroborated by any other evidence. The complainants had enough scope to prove this allegation by the opinion of expert engineer. But during the pendency of this case the complainants did not take any steps to bring the opinion of the expert engineer. Without the opinion of the expert engineer and other evidence it is not possible to ascertain that there is deficiency in service on the part of the O.Ps. and there is existence of defects as pointed out in para-7 of the complaint. The O.Ps. by adducing evidence on affidavit and in the written version have specifically denied the allegation as mentioned in para-7 of the complaint. In the above premises we are of the opinion that the complainants have failed to prove the allegation as mentioned in para-7 of the complaint.
It is essential to mention that in the complaint the complainants have specifically stated that by sending letters dated 12.10.2014, 18.1.2015 and 27.4.2015, raised the defects as mentioned in para-7 of the complaint and made request to the O.Ps. to remove such defects. Though the complainants have produced the copies of such letters but no evidence has been adduced by the complainants showing that those letters were actually served upon the O.Ps. In the written version the O.Ps. have specifically stated that after taking possession and within the period upto the date of filing of this case the complainants never brought any allegation verbally or writing before this O.Ps. and the complainants with an ill motive and intention have filed this case to harass these O.Ps. and unlawful gain.
As the allegation for deficiency in service as mentioned in para-7 of the complaint has been brought by the complainants, the burden of prove in this connection is lying upon the complainants but the complainants have failed to discharge such burden.
In view of our above discussions we are of the opinion that the complainants have failed to prove their case. So, the case fails. Fees paid is correct. Hence, it is
ORDERED
that the complaint case being No.137/2015 is dismissed without cost on contest against the O.Ps.
Let the copy of this order be supplied to the parties free of cost.
(Asoke Kr. Mandal)
Dictated and corrected by me. President
D.C.D.R.F., Burdwan
(Asoke Kr. Mandal)
President
D.C.D.R.F., Burdwan
(Silpi Majumder)
Member
D.C.D.R.F., Burdwan
