Consumer Complaint No.10 of 2013
Date of filing: 21.01.2013 Date of disposal: 27.02.2017
Complainant: Diptisri Ghosh, D/o. Late Prabha Ranjan Ghosh, residing at 1 No. Mohishila Colony, PO: Asansol, PS: Asansol (South), District: Burdwan, PIN – 713 303.
-V E R S U S-
Opposite Party: “Atlas Construction”, represented by sole Proprietor Sri Pulak Das, S/o. Late Anil Baran Das, residing at 87/1, “Annapurna Apartment”, Apcar Garden, Asansol – 713 304, PS: Asansol (South), District: Burdwan.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party: Ld. Advocate, Ashish Banerjee & Debjyoti Banerjee.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OP as the OP did not provide her five flats within the stipulated period and as per the terms and conditions of the agreement for sale executed by and between the parties on 16.12.2008.
The brief fact of the case of the Complainant is that she being a retired teacher owned and possessed a building with vacant land. She decided to develop the said land with structure by a developer and at that time the OP approached to her to undertake the said work and at last both of them entered into an agreement on 16.12.2008 with certain terms and conditions for the proposed development of the land. The Complainant also executed a general power of attorney on 16.12.2008 in favour of the OP for construction of the multi storied building on behalf of the Complainant. The Complainant agreed to hand over the land on the date of execution of the abovementioned agreement to the OP for construction of a multi storied (G+3) building consisting of several self contained flats along with car parking space etc and the parties agreed that the OP will construct flats according to the sanctioned plan of the Complainant. According to the contract the OP will bear all the expenses for construction of the building named as ‘Lake View Apartment and will hand over to the Complainant two finished flats on the first floor, one is south-east facing and another is west-south facing including two covered garage in complete condition in the ground floor each having 100 sq.ft area. The agreement containing some specifications in respect of the flats and it was settled that the flats will be handed over to the Complainant. Each of the said flat super built up area will be 850 sq.ft. consisted of two bedrooms, one drawing cum dining room, one kitchen, two toilets and balcony and all the floors will be made of white marbles, windows will be aluminum, wooden doors and garage will be for four wheeler. All the windows have box grills of 1.4 kg/sq. ft. but the OP failed to provide the aluminum window to reduce his cost. The OP agreed to hand over two complete flats and garage to the Complainant within 18 months from the date of the execution of the agreement dated 16.12.2008. The OP also agreed not to deviate any construction from the Municipal sanctioned plan dated 12.09.2007 by demolishing the existing old dilapidated building and structure and by investing necessary capital which will be required from time to time. On different dates the OP received a sum of Rs.10, 00,000=00 from the Complainant on condition that he will hand over three unfinished flats to the Complainants in different floors within the stipulated period. The OP agreed and assured the Complainant to use ‘A’ class building materials for the construction of the entire multi-storied project and also agreed to complete and hand over total five flats within the stipulated period as mentioned in the agreement. From the very beginning of the agreed work the OP was in casual manner started his work and stopped his work for a long time. The Complainant from time to time chased and gave caution to the OP to complete the work within the stipulated period as per the agreement, but he did not pay any attention to her request and caution. The OP has failed to deliver two flats within the stipulated period of 18 months i.e. by 20.12.2010. she from time to time gave reminder to the OP for completion her two flats, but he showed reason that due to paucity of fund he could not complete his work and told the Complainant to purchase the materials from her own fund and make the cash memo on behalf of the developer, which will help him to get the advantage of Sale Tax, Income Tax & Service Tax and also assured the Complainant to reimburse the same later. But till date the OP did not reimburse the same and the Complainant is preserving all the cash memos of the purchased materials by her. On 25.01.2012 the Complainant being compelled entered her two agreed flats in an incomplete position and by her own expenses she completed those flats. According to the Complainant the deficiencies are (i) the measurement of one room is 6 inches short in breadth and 7ft 7 inches short in length, (ii) the balconies of the flats were not constructed from outside i.e. hanging balcony and it decreases the space of the flats, (iii) there were no paints in the doors and windows, (iv) there is no gate in the main entrance, (v) there was no shop room in the main building plan, but the OP constructed and sold a shop room and all of which were contrary to the agreement. As per the agreement the Complainant agreed to give a sum of Rs.10, 00,000=00 in different time to the OP and she gave the same from her different bank accounts through cheque and cash and in consideration of such amount the OP agreed to deliver three unfinished flats in favour of the Complainant, but till date the OP has failed to deliver the same and is trying to sell the same without giving any attention and assurance. The building materials i.e. cement, rods, bricks, wooden panel etc used by the OP for construction of the agreed work was sub-standard and which are also contrary to the agreement. The OP has failed to construct her boundary wall, remove the garbage like building rubbish which the OP agreed to do it according to the contract. As the grievance of the Complainant had not been redressed by the OP before coming to this Ld. Forum, hence having no alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OP to-
- reimburse the cost of material purchased by her for Rs.2,41,288=00 along with interest thereon from the date of purchase till the date of entire realization,
- to deliver legal possession of five flats and construct the boundary wall and gates,
- to pay Rs.2,00,000=00 for delay in delivery of the two flats and legal possession has not been given till date,
- to complete all the incomplete works of all the flats which the Complainant is entitled to get legally within the stipulated time frame,
- to compensate the construction value of one bathroom, one kitchen, balconies of the flats,
- to install aluminum windows in the two flats as early as possible,
- to pay compensation to the tune of Rs.2,00,000=00 due to deficiency in service and
- to pay litigation cost to the Complainant.
The petition of complaint has been contested by the OP by filing written version contending that the OP did not violate any terms and conditions of the agreement. The Complainant without vacating the old existed building forced this OP to complete the work in two phases. After completion of the construction in the vacant area, the Complainant shifted at a flat therein of her choice and then only the OP could take up the work of demolition of the existed building. While garbage after demolition was attempted to be stored at plot no-1607, the local people challenged the titled of the Complainant therein. The Complainant completely failed to deliver the said property to this OP. Local agitation against the Complainant was raised, for such reasons there was delay in delivery of the possession to the flat, for which the Complainant is solely liable. Regarding plot no-1607 this OP as plaintiff has filed a Title Suit in the Court of the Ld. Civil Judge, Senior Division at Asansol. Although initially it was settled that two flats would be provided to the Complainant but subsequently she forced this OP to convert the two flats in to one cozy flat. She also provided a drawing prepared by an engineer of her own choice. This OP had to face enormous difficulty in such conversion. The flat required to be handed over to the Complainant has been handed over to her in complete, finished and furnished conditions as per the drawing and design of the engineer of the Complainant and she is residing there since the date of delivery of possession without any objection. Model aluminium windows were installed in the said flat as per the requirement of the Complainant. So far as the matter of providing of three unfinished flats to the Complainant is concerned, the Complainant agreed to invest and flats were to be prepared as per specification of the OP and those flats have been duly handed over to her, but she did not pay entire investment as envisaged in the agreement. It is not understood as to what the Complainant means by the term ‘Legal Possession’. The Complainant is the owner of the property and this OP merely holds a power of attorney. Therefore question does not arise to transfer the flats by any registered document. This OP had always expressed his willingness to execute any document as the Complainant thinks proper. In this context it may be stated that the concerned building has fourteen flats and three unfinished flats as per choice of the Complainant along with other two (converted in to one) are very much lying at the disposal of the Complainant. Regarding definition of ‘unfinished’ the Complainant is trying to make a different interpretation by taking advantage of non-mentioning the definition of ‘unfinished’ in the agreement. So the claim of the Complainant is baseless as this OP has made entire construction work which he was liable to and there is nothing remaining for him to do any more. This OP has never transferred any portion of the premises by converting it to any business complex or as a shop. This OP had to face enormous trouble to change the internal orientations which was so costly. The conversion did not change the area and accordingly the value assessed as per area remained unchanged inspite of change of such internal orientations. Moreover such construction has been made completely at the cost of this OP and the Complainant is not supposed to suffer any loss on that account. In the agreement the parties agreed about certain quality of materials to be used. The OP never asked the Complainant to procure any material for the flats by her. She herself volunteered to do some work as per her own choice for which this OP agreed to reimburse her within the framework of the agreement. But in doing so she had used materials which are costly than the agreed price and same was done by her not in consultation with this OP or not on his request. When the Complainant sought for reimbursement, this OP gladly agreed to pay the value of the agreed works, but the OP definitely objected to the total claim of the Complainant which included extra in terms of quantity as also quality. The OP has already handed over an account to show that the Complainant is only entitled to be reimbursed to the tune of Rs.38,000=00. It may be kindly be appreciated that the alleged agreement is purely in the nature of a joint venture and completely within the domain of the Civil Court and there cannot be any grievance on this aspect on the proclaimed status as a consumer. It may be noted that on the self same agreement the civil suit is also based. The other allegations regarding gate in the main entrance, shortage of length, breadth, shortage of space, balcony, lack of paint on doors and windows are not correct and baseless. According to the OP as there is no deficiency in service on his part he is not liable to pay any amount as compensation to the Complainant as prayed for and the Complainant is also not entitled to get any relief as sought for. The OP has prayed for dismissal of the complaint being devoid of any merit.
The Complainant has adduced evidence on affidavit along with several papers and documents in support of her contention. As the Complainant has alleged that there some incomplete works in her flats and some deviations from the sanctioned plan, to prove the same prayer was made in writing by her for appointment of an expert for inspection and report and accordingly this Ld. Forum was pleased to allow such prayer and appointed Sri Animesh Kabiraj, Executive Engineer of PWD as Commissioner for inspection and report on the points as mentioned in the petition dated 21.04.2015. The Ld. Expert after inspection prepared a report and submitted the same before this Ld. Forum. The said report was cross-examined by the OP by filing questionnaire and the ld. Expert has replied the same accordingly. The OP has also submitted several papers and documents in support of his contentions. Both parties have relied on several judgments in favour of their respective cases.
Both parties have relied on the agreement in which they entered on 16.12.2008, so for adjudication some terms and conditions of the said agreement should be reproduced-
in future in regard to the land, the first party will have the liabilities and the second party will have no concern for the same but the second party shall be liable for any future defects and deficiencies of the construction. . The first party (Complainant) will hand over the vacant possession of the land to the second party (OP) on the date of execution of the agreement
. The second party will develop the said land and construct building thereon as per sanctioned building plan.
. The second party after completion of the project will hand over two finished flats to the first party in the first floor……..along with one covered garage of 200 sq. ft in complete condition.
. The second party shall have full responsibility and liability for undertaking the construction of the project and the first party will have no concern for the same.
. The second party will have strictly abided by the building rules and regulations in undertaking the project and there will be no deviation from the sanctioned plan.
. The second party will hand over the said two complete flats and garage to the first party within 18 months from the date of execution of the agreement.
. The second party will use ‘A’ class building materials to construct the project.
. The first party will execute a general power of attorney in favour of the second party and the second party shall incur all costs, execute deeds on her behalf required for the project.
. If any dispute or litigation arises in future in regard to land, the first party will have the liabilities and the second party will have no concern for the same but the second party shall be liable for any future defects and deficiencies of the construction.
. The first party will also invest Rs.10, 00,000=00 time to time for construction of the flats for which the second party will be liable to give 03 (three) nos. of unfinished flats in different floor.
We have carefully perused the record; documents filed by the contesting parties, judgments and rulings on which parties have placed their respective reliance, expert opinion, reply by the Ld. Expert and heard argument at length advanced by the Ld. Counsel for the parties. In our opinion following points are to adjudicated.
POINTS TO BE DECIDED
- Whether the Complainant is a consumer or not.
- Whether this complaint is maintainable before this Ld. Forum or not.
- Whether flats obtained for commercial purpose or not.
- Whether this complaint is barred by pecuniary jurisdiction or not.
- Whether there is any deficiency in service on behalf of the OP or not.
- Whether the Complainant is entitled to get any relief as sought for or not.
DECISION WITH REASONS
We are inclined to discuss on the point numbers 1, 2, 3 and 4 as those are co-related.
(1-4) During advancing argument the Ld. Counsel for the OP has argued that the Complainant cannot be termed as consumer because she obtained five flats from the OP for commercial purpose and moreover as the agreement dated 16.12.2008 being a joint venture agreement, the Complainant being the land owner cannot be termed as consumer. It is further submitted by the Ld. Counsel for the OP that this complaint is not maintainable before this Ld. Forum because as the joint venture agreement is existing, hence this case should be adjudicated upon by the competent Ld. Civil Court and the Complainant is under obligation to approach before the Ld. Civil Court and the Consumer Forum is not empowered to try with such complaint. The Ld. Counsel for the Complainant has also submitted that this complaint is barred by pecuniary jurisdiction of this Ld. Forum and on this score the complaint being not maintainable should go. In respect of such argument the Ld. Counsel for the Complainant has argued that the agreement dated 16.12.2008 in which both parties have entered into cannot be termed as joint venture agreement and there is no iota of evidence on the part of the OP that the Complainant obtained five flats for commercial purpose. The Ld. Counsel for the Complainant has argued that the Consumer Forum has authority to try with this complaint and as such the Complainant should not approach before the Ld. Civil Court. Moreover this complaint is not at all barred by pecuniary jurisdiction.
In support of her contention the Ld. Counsel for the Complainant has relied on the paragraphs no-13 and 14 of the landmark judgment passed by the Hon’ble Supreme Court in the case of Faqir Chand Gulati Vs. Uppal Agencies Private Limited & Another, decided on 10.07.2008, reported in 2009 Sup AIR (SC) 575, wherein it has been observed which runs as follows-
13. ‘When the owner of a plot of land enters into an agreement with a builder for development of the property by construction of a building and sharing the constructed area between the owner and the builder, and the developer commits any breach either by failing to deliver owner’s share of constructed area or by constructing the building contrary to specifications, or by failing to fulfill the obligations relating to completion certificate or amenities like water, electricity and drainage, whether the owner can maintain a complaint under the Consumer Protection Act and whether in such circumstances, the owner can claim that he is a consumer and the builder is the service provider.’
14. In Lucknow Development authority vs. M.K. Gupta (1994) 1 SCC 243 the Hon’ble Supreme Court observed:
“To begin with the preamble of the Act, which can afford useful assistance to ascertain the legislative intention, it was enacted, ‘to provide for the protection of the interest of consumers’. Use of the word ‘protections’ furnishes key to the minds of makers of the Act. Various definitions and provisions which elaborately attempt to achieve this object have to be construed in this light without departing from the settled view that a preamble cannot otherwise plain meaning of a provision. In fact the law meets long felt necessity of protecting the common man from such wrongs for which the remedy under ordinary law for various reasons has become illusory. Various legislations and regulations permitting the State to intervene and protect interest of the consumers have become a haven for unscrupulous ones and the enforcement machinery either does not move or it moves ineffectively, inefficiently and for reasons which are not necessary to be stated. The importance of the Act lies in promoting welfare of the society by enabling the consumer to participate directly in the market economy. It attempts to remove the helplessness of a consumer which he faces against powerful business, described as, ‘a network of rackets’ or a society in which, ‘producers have secured power’ to ‘rob the rest’ and the might of public bodies which are degenerating into store house of inaction where papers do not move from one desk to another as matter of duty and responsibility but for extraneous consideration leaving the common man helpless, bewildered and shocked. The malady is becoming so rampant, widespread and deep that the society instead of bothering, complaining and fighting for it, is accepting it as part of life. The enactment in these unbelievable yet harsh realities appears to be a silver lining, which may in course of time succeed in checking the rot. A scrutiny of various definitions such as ‘consumer’, ‘service’, ‘trade’, ‘unfair’ trade practice indicates that legislature has attempted to widen the reach of the Act. Each of these definitions is in two parts, one explanatory and the other expandatory. The explanatory or the main part itself uses expressions of wide amplitude indicating clearly its wide sweep then its ambit is widened to such things which otherwise would have been beyond its natural import.”
Upon perusal of the aforementioned paragraphs we are of the view those paragraphs are certainly applicable in the case in hand because the Complainant being a land owner entered into an agreement with OP being the developer and as the Complainant has made allegations that the OP has committed breach in respect of the terms and conditions of the agreement, hence the Complainant can maintain a complaint under the Consumer Protection Act and the land owner can claim that she is a consumer and the developer is the service provider.
In respect of joint venture agreement the ld. Counsel for the OP has placed his reliance on the paragraph no-20 of the judgment passed in the case of Faqir Chand Gulati (supra). We have carefully gone through the same and noticed that it is observed that ‘in a true joint venture agreement between the land owner and another (whether a recognized builder or fund provider), the land owner is a true partner or co-adventurer in the venture where the land owner has a say or control in the construction and participates in the business and management of the joint venture, and has a share in the profit/loss of the venture. In such a case, the land owner is not a consumer nor is the other co-adventurer in the joint venture, a service provider. The land owner himself is responsible for the construction as a co-adventurer in the venture…….’
In our view the abovementioned observation is not applicable in the instant complaint as the agreement in which both parties entered into cannot be termed as joint venture agreement in view of the aforementioned landmark judgment. It is seen by us that in the paragraph no-6 of e the agreement it has been mentioned that ‘the second party (OP) after completion of the project will hand over two finished flats to the first party (Complainant) in the first floor of the building one in front and another in the back portion of the building along with one covered garage of 200 sq.ft in complete condition’, in the paragraph no-8 of the agreement dated 16.12.2008 it is mentioned that’ the second party (OP) shall have the full responsibility and liability for undertaking the construction of the project and the first party (Complainant) will have no concern for the same’, in paragraph no-15 it is mentioned that ‘the first party will execute a general power of attorney separately in favour of the second party to do all costs, deeds and things on her behalf required for the project’, in the paragraph nos-16 and 17 it is written that ‘the second party shall have the right to enter into any agreement for sale of the flats excluding the flats and garage of the first party with any intending purchaser/s and to receive booking money from the said purchasers and execute sale deed in favour of the said intending purchaser/s & the second party will also have the right to take all major decisions in undertaking the projects without violating any rules and regulations and without hampering the right and interest of the first party.’
In view of the abovementioned terms and the conditions of the agreement dated 16.12.2008 in which both parties have entered into, the said agreement cannot be termed as a joint-venture agreement and as the same is not a joint-venture agreement the Complainant has every right to approach before this ld. Consumer Forum for redressal of her grievance, if any, and it will be injustice to the Complainant if we direct her to approach before the Ld. Civil Court as per contention of the OP.
The Ld. Counsel for the Complainant has also placed reliance on the paragraph no-23 of the judgment passed in the case of Faqir Chand Gulati (supra), wherein it has been observed that-
23. ‘We may notice here that if there is a breach by the landowner of his obligations, the builder will have to approach a civil court as the landowner is not providing any service to the builder but merely undertakes certain obligations towards the builder, breach of which would furnish a cause of action for specific performance and/or damages. On the other hand, where the builder commits breach of his obligations, the owner has two options. He has the right to enforce specific performance and/or claim damages by approaching the civil court. Or he can approach the Forum under Consumer Protection Act, for relief as consumer, against the builder as a service provider. Section 3 of the Act makes it clear that the remedy available under the Act is in addition to the normal remedy or other remedy that may be available to the Complainant.’
Having regard to the abovementioned observation of the Hon’ble Supreme Court and considering the factual matrix of the complaint it can safely be said that the Complainant being a consumer has correctly approached before the Ld. Consumer Forum being dissatisfied with the service of the service provider-OP. So this complaint is very well maintainable before this Ld. Forum.
In respect of commercial purpose as alleged by the OP the Ld. Counsel for the Complainant has mentioned to the judgment passed by the Hon’ble Supreme Court in the case of Bunga Daniel Babu vs.M/s. Sri Vasudeva Constructions & Others, decided on 22.07.2016, reported in 2016 0 Supreme (SC) 565, wherein 12 flats were handed over to the Complainants. It is observed that the profit is the main aim of commercial purpose and if there is an intention to sell the flats/plots and let them on rent and earns profit, then the transaction is meant for commercial purpose. In the said case the Complainant sold four of the 12 flats. The Complainant has also mentioned to the judgment passed by the Hon’ble NCDRC passed in the case of Akshay Sood vs. M/s. Pal Infrastructure & Developers Private Limited & Another, decided on 02.01.2017, in the First Appeal no-237/2015, wherein it has been held in the paragraph no-7 that ‘…..unless it is shown by bringing on record some cogent material that the purchaser is engaged in the purchase and sale of flats/houses on regular basis, with a view to make profit by sale of flats/houses, a mere purchase of more than one flat would not per se be sufficient to hold that the purchase was for commercial purposes,….. that if more than one residential unit is purchased by one person, he ceases to be a ‘consumer’, cannot be sustained’.
In our view the relied judgments are applicable in the instant compliant because admittedly the Complainant being the land owner obtained/got five flats (two finished and three unfinished) in connection with the agreement dated 16.12.2008 signed by and between the parties. Though plea has been taken by the OP that the Complainant obtained five flats for commercial purpose and hence she is not a consumer within the purview of the definition of ‘Consumer’ as enumerated in the C.P. Act, 1986, but in support of such plea/contention no convincing documentary evidence is adduced by the OP that the Complainant has already sold some flats/or trying to sell the same or earning profit through rent whatever it may be. As there is no scarp of document showing that the Complainant is using the flats for commercial purpose or earning profit, hence we are not in a position to come to the conclusion that she obtained five flats for commercial purpose. As the OP has failed to prove the plea by producing cogent document, hence the contention of the OP fails.
In respect of pecuniary jurisdiction the Ld. Counsel for the OP has submitted some Sale Deeds, from where it is evident that the cost of flat of Sri Dilip Kumar Sinha is for Rs.9,29,500=00and Sri Prabir Malakar purchased his flat by making payment of Rs.7,09,500=00. In this manner the OP has tried to convince us that as the Complainant obtained five flats and if the cost of each flat is for Rs.7, 00,000=00, then it will come at Rs.35, 00,000=00 in total, which exceeds the pecuniary jurisdiction of this Ld. Forum. It is settled position that in view of the Section 11 (1) of the Consumer Protection Act, 1986 the District Forum shall have jurisdiction to entertain a complaint where the value of the goods or services and compensation, if any, does not exceed Rs.20,00,000=00. In this respect the Ld. Counsel for the Complainant has relied on the judgment passed by the Hon’ble NCDRC, in the case of Mr. Vasant Shankar Toraskar & Others vs. M/s. Shreeji Builders, Through Partner, decided on 23.04.2012, reported in 2012 (2) CPR (NC) 299, wherein it has been held that ‘the consideration, in so far as the purchaser/builder is concerned, comes in the form of the land for the project, less the cost of the flats and the shop agreed to be built for the vendors.’ In the instant complaint the Complainant paid or undertook to pay a sum of Rs.10, 00,000=00 to the OP for three unfinished flats, in the prayer portion of the complaint she has prayed for Rs.2, 41,288=00 towards the reimbursement of the cost of the materials purchased by her, Rs.2, 00,000=00 for delay in delivery of the possession in the flats and compensation to the tune of Rs.2, 00,000=00. Hence the Complainant has sought for or total value of this complaint is for Rs.16, 41,288=00, which does not exceed the pecuniary jurisdiction of this Ld. Forum. So it cannot be said that this complaint is barred by pecuniary jurisdiction as alleged by the OP.
After adjudication of the abovementioned points and considering the facts and the circumstances of the complaint we are of the opinion that the Complainant is a consumer, this complaint is maintainable before this Ld. Forum, obtaining of five flats by the Complainant cannot be termed as commercial purpose and this complaint is not barred by pecuniary jurisdiction. Therefore the point numbers 1-4 are decided in favour of the Complainant.
(5) Now we are to adjudicate the most important and vital point as to whether there is any deficiency in service on behalf of the OP or not. It is seen by that in the petition of complaint it is contended by the Complainant being a land owner of a piece of vacant land decided to develop the same with structure by a developer and accordingly the OP approached to her to undertake the said work and at last both of them entered into an agreement on 16.12.2008 with certain terms and conditions for the proposed development of the land. The Complainant also executed a general power of attorney on 16.12.2008 in favour of the OP for construction of the multi storied building on behalf of the Complainant. The Complainant agreed to hand over the land on the date of execution of the abovementioned agreement to the OP for construction of a multi storied (G+3) building consisting of several self contained flats along with car parking space etc and the parties agreed that the OP will construct flats according to the sanctioned plan of the Complainant. According to the contract the OP will bear all the expenses for construction of the building and will hand over to the Complainant two finished flats on the first floor, one is south-east facing and another is west-south facing including two covered garage in complete condition in the ground floor each having 100 sq.ft. area. The agreement containing some specifications in respect of the flats and it was settled that the flats will be handed over to the Complainant. Each of the said flat super built up area will be 850 sq.ft. consisted of two bedrooms, one drawing cum dining room, one kitchen, two toilets and balcony and all the floors will be made of white marbles, windows will be aluminum, wooden doors and garage will be for four wheeler. All the windows have box grills of 1.4 kg/sq. ft, but the OP failed to provide the aluminum window to reduce his cost. The OP agreed to hand over two complete flats and garage to the Complainant within 18 months from the date of the execution of the agreement dated 16.12.2008. The OP also agreed not to deviate any construction from the Municipal sanctioned plan dated 12.09.2007. On different dates the OP received a sum of Rs.10, 00,000=00 from the Complainant on condition that he will hand over three unfinished flats to the Complainants in different floors within the stipulated period. The OP agreed and assured the Complainant to use ‘A’ class building materials for the construction of the entire multi-storied project and also agreed to complete and hand over total five flats within the stipulated period as mentioned in the agreement. From the very beginning of the agreed work the OP was in casual manner started his work and stopped his work for a long time. The OP has failed to deliver two flats within the stipulated period of 18 months i.e. by 20.12.2010 due to paucity of fund, as stated by the OP. The Complainant was asked by the OP to purchase the materials from her own fund and make the cash memo on behalf of the developer, which will help him to get the advantage on different aspects and assured the Complainant to reimburse the same later, but till date the OP did not reimburse the same and the Complainant is preserving all the cash memos of the purchased materials by her. On 25.01.2012 the Complainant being compelled entered at her two agreed flats in an incomplete condition and completed those incomplete works incurring expenditure from her own pocket. According to the Complainant the deficiencies are the measurement of one room is 6 inches short in breadth and 7ft 7 inches short in length, the balconies of the flats were not constructed from outside i.e. hanging balcony and it decreases the space of the flats, there were no paints in the doors and windows, there is no gate in the main entrance, there was no shop room in the main building plan, but the OP constructed and sold a shop room and all of which were contrary to the agreement. As per the agreement the Complainant paid a sum of Rs.10, 00,000=00 to the OP on different times and against payment the OP agreed to deliver her three unfinished flats, but till date the OP has failed to deliver the same. The building materials i.e. cement, rods, bricks, wooden panel etc used by the OP for construction of the agreed work was sub-standard and which are also contrary to the agreement. Alleging such allegation this complaint has been filed by the Complainant praying for certain reliefs i.e. removal of defect, completion of incomplete work, payment of compensation due to delay in delivery of the possession, compensation due to deficiency in service on the part of the OP etc.
The contention of the OP is that he did not violate any terms and conditions of the agreement. After demolition of the existed building where the garbage material will be stored, the Complainant did not provide or identified any place and for this reason the construction work could not be started promptly and delay occurred in delivery of the possession to the complainant in her respective flats, for which the Complainant is solely liable. Although initially it was settled that two flats would be provided to the Complainant but subsequently she forced this OP to convert the two flats into one cozy flat. She also provided a drawing prepared by an engineer of her own choice. This OP had to face enormous difficulty in such conversion. The flat required to be handed over to the Complainant has been handed over to her in complete, finished and furnished conditions as per the drawing and design of the engineer of the Complainant and she is residing there since the date of delivery of possession without any objection. Model aluminium windows were installed in the said flat as per the requirement of the Complainant. So far as the matter of providing of three unfinished flats to the Complainant is concerned, the Complainant agreed to invest and flats were to be prepared as per specification of the OP and those flats have been duly handed over to her, but she did not pay entire investment as envisaged in the agreement. The claim of the Complainant is baseless as this OP has made entire construction work which he was liable to and there is nothing remaining for him to do any more. This OP has never transferred any portion of the premises by converting it to any business complex or as a shop. This OP had to face enormous trouble to change the internal orientations which was so costly. Moreover such construction has been made completely at the cost of this OP and the Complainant is not supposed to suffer any loss on that account. In the agreement the parties agreed about certain quality of materials to be used. The OP never asked the Complainant to procure any material for the flats by her. She herself volunteered to do some work as per her own choice for which this OP agreed to reimburse her within the framework of the agreement. But in doing so she had used materials which are costly than the agreed price and same was done by her not in consultation with this OP or not on his request. When the Complainant sought for reimbursement, this OP gladly agreed to pay the value of the agreed works, but the OP definitely objected to the total claim of the Complainant which included extra in terms of quantity as also quality. The OP has already handed over an account to show that the Complainant is only entitled to be reimbursed to the tune of Rs.38, 000=00. The other allegations regarding gate in the main entrance, shortage of length, breadth, shortage of space, balcony, lack of paint on doors and windows are not correct and baseless. According to the OP as there is no deficiency in service on his part he is not liable to pay any amount as compensation to the Complainant as prayed for this complaint being devoid of any merit is liable to be dismissed.
As the Complainant has alleged some defects in the flats, incomplete works on the part of the OP, to prove such allegation prayer was made by the Complainant for appointment of an expert by making an application. By allowing the said application this Ld. Forum was pleased to appoint an Expert, namely, Sri Animesh Kabiraj, Executive Engineer of PWD as Commissioner for inspection and report on the points as mentioned in the petition dated 21.04.2015 filed by the Complainant. The Ld. Expert after inspection prepared a report and submitted the same before this Ld. Forum. The said report was cross-examined by the OP by filing questionnaire and the ld. Expert has replied the same accordingly.
The Ld. Expert has intimated this Ld. Forum by issuing a letter dated 31.03.2016 that before inspection of the question flats/site written intimations was given to the parties intimating them the date of inspect as 13.03.2016 at about 11 a.m. The both parties were requested to be present either physically or through any authorized person, but upon receipt of the notice the OP intimated the Ld. Expert by issuing letter that due to illness of his Ld. Advocate he could not be able to attend on the spot on the date fixed and prayed time for two months. It is further mentioned in the letter dated 31.03.2016 by the Ld. Expert that on earlier occasion also the OP had failed to appear at the inspection spot. As on 13.03.2016 nobody was present on behalf of the OP, the Ld. Expert was inclined to proceed with the inspection work in absence of the OP and on that date the Complainant was present personally.
In respect of the specific questionnaire put by the Complainant in the petition dated 24.04.2015 the Ld. Expert has opined that there is deviation in the construction in respect of structure, design and drawing and is also deviation in sizes of rooms, balcony, drawing and dining etc. In the first floor south-east and west-south facing flat there is deviation in fittings & fixtures in doors, windows etc & floors, finishing items and sizes of rooms etc. There is deviation in measurement of rooms. Some balconies are hanging and some are not. Paints on the doors and windows not done partly. A small gate has been installed, there is shop room in the building at the ground floor, but in the building plan shop room has not been mentioned, flats are partly finished, a very poor quality of construction and low standard materials were used in construction along with sub-standard structural work which will shorten the life of the whole building and in some flats doors, windows and flooring work and some other item not done yet.
The aforementioned expert opinion was challenged by the OP by way of filing questionnaire to him and the Ld. Expert has replied the questions accordingly.
It is stated by the Complainant that as per the agreement each of the said flat super built up area will be 850 sq.ft. consisted of two bedrooms, one drawing cum dining room, one kitchen, two toilets and balcony and all the floors will be made of white marbles, windows will be aluminum, wooden doors and garage will be for four wheeler. But the OP failed to provide the aluminum window. In this respect the OP has stated that although initially it was settled that two flats would be provided to the Complainant but subsequently she forced this OP to convert the two flats into one cozy flat. She also provided a drawing prepared by an engineer of her own choice. This OP had to face enormous difficulty in such conversion. The flat required to be handed over to the Complainant has been handed over to her in complete, finished and furnished conditions as per the drawing and design of the engineer of the Complainant and she is residing there since the date of delivery of possession without any objection. Model aluminium windows were installed in the said flat as per the requirement of the Complainant. In this respect we are to say as to whether the Complainant provided the drawing and design prepared by her engineer or not, there is no documentary evidence in the record. Moreover in the agreement on which both parties have relied on there is no such provision that the drawing and design for construction of her two complete and finished flats will be provided by the Complainant. So the plea as taken by the OP in his written version has no value at all as the OP has failed to corroborate the statement made by him by producing cogent evidence. In this respect the Ld. Expert has stated in respect of the specific question put by the Complainant (Q-2) that there is deviation in the construction in respect of structure design & drawing and is also deviation in sizes of rooms, balcony, drawing and dinning etc and flats are partly finished. But in respect of the questions put to the Ld. Expert by the OP challenging the opinion (Q-1 &3) the Expert has replied that ‘no, I have not perused the respective pleadings of the parties of the case & no, I have not.’ Upon considering the allegation as made out by the Complainant, objection thereto, opinion of the Ld. Expert and reply of him we are to say as the Ld. Expert did not peruse the pleadings of the parties and enquired any document regarding ownership, construction of the flats, then how he came to the conclusion that there is deviation in the construction in respect of structure design & drawing and is also deviation in sizes of rooms, balcony, drawing and dinning etc and flats are partly finished. Without having knowledge about the terms and conditions of the agreement, sanctioned Municipal plan etc. the Ld. Expert has provided such opinion and for this reason such opinion in this respect does not stand apart from the aluminium window because in the agreement it is mentioned that aluminium will be provided, but admittedly the same was not provided and in this respect challenged has not made by the OP. Therefore in respect of providing aluminium window the OP has breached the terms of the agreement. According to the Complainant the OP agreed and assured the Complainant to use ‘A’ class building materials for the construction of the entire multi-storied project as per the agreement. But the Complainant alleged that the building materials i.e. cement, rods, bricks, wooden panel etc used by the OP for construction of the agreed work was sub-standard and which are also contrary to the agreement. We have noticed that in the agreement it is mentioned that the second party will use ‘A’ class building materials to raise the project. In this respect the OP has stated that in the agreement the parties agreed about certain quality of materials to be used, but the OP never asked the Complainant to procure any material for the flats by her and she herself volunteered to do some work as per her own choice for which this OP agreed to reimburse her within the framework of the agreement. But in doing so she had used materials which are costly than the agreed price and same was done by her not in consultation with this OP or not on his request. In this respect we are to say that in the agreement no where it is mentioned that the Complainant was at liberty to purchase the building materials for construction of her own choice out of her pocket and the OP will give the reimbursement for the same later. From the fact it is evident that admittedly the Complainant purchased some building materials for construction out of her own pocket and as per her choice in the name of the OP as the purchased bills were issued by the shopkeeper in the name of the OP and the OP has admitted the same. Now one question is cropped up our mind as to why and how both the Complainant and the OP have acted going beyond the terms of the agreement wherein it is mentioned that the second party will be liable to invest all necessary capital for undertaking the said project and the first party will have no concern for the same. As it is evident that the Complainant also indulged the OP to travel beyond the agreement, hence in this respect there is contributory negligence on the part of the Complainant. The Ld. Expert has opined in this respect (though no specific question was made by the Complainant) that ‘a very poor quality of construction and low standard materials used in construction along with sub-standard structural work will shorten the life of whole building (A-13). In this respect we are to say that firstly no such question was raised by the Complainant in connection with this opinion and as the Expert has admitted that he did not peruse any document, then it is hardly possible to make an opinion that the building materials were of low quality and sub-standard where he did not possess any knowledge that what was the agreed quality of the building materials for construction of the project along with the flats of the Complainant. Moreover whether the standard and quality of the building materials were low or sub-standard whatever it may, the same can be established based on the report of the appropriate laboratory. Until and unless the sample of the said materials is sent to the appropriate laboratory for testing and examination, the said laboratory is given the report that the materials are suffering from its standard, quality and grade, then only it safely be said that the questioned materials were of low standard and sub-standard. But the Ld. Expert without any report from the laboratory has opined the same. So the opinion as framed by the Ld. Expert in this respect cannot be entertained. According to the Complainant the deficiencies are (i) the measurement of one room is 6 inches short in breadth and 7ft 7 inches short in length, (ii) the balconies of the flats were not constructed from outside i.e. hanging balcony and it decreases the space of the flats, (iii) there were no paints in the doors and windows, (iv) there is no gate in the main entrance, (v) there was no shop room in the main building plan, but the OP constructed and sold a shop room and all of which were contrary to the agreement. The OP has mentioned in his written version that there is no incomplete works, he has handed over the flats to the Complainant in complete and furnished condition and constructed the same as per sanctioned plan and the agreement in which both parties have entered into. In respect of such allegations the Ld. Expert has opined in respect of the questions put to him by the Complainant (Q-4, 5, 6 & 7) ‘that some balcony are hanging and some are not, paints on the doors and windows not done properly, a small gate has installed and there is a shop room in the building at the ground floor’. But in respect of such opinion no question has been put by the OP to the Ld. Expert during cross examination. Though the Complainant has alleged that the measurement of one room is 6 inches short in breadth and 7ft 7 inches short in length, but though the Ld. Expert has opined that there is deviation in the sizes of the rooms, but no specific size has been mentioned and moreover where the Ld. Expert has admitted that he did not peruse the pleadings of the both parties along with documents and construction agreement, hence he had no knowledge as to what should be the sizes of the rooms. Therefore such hypothecated opinion of the Ld. Expert in respect of the sizes of the rooms cannot be accepted. The allegation as made out by the Complainant in respect of the shop room which has been constructed by the OP going beyond the sanctioned plan the OP has stated in his written version that there is neither any shop nor any business spot in the concerned premises. But the Ld. Expert has opined that there is a shop room in on the ground floor. This opinion has not been cross-examined by the OP. Hence the opinion of the Ld. Expert has reached in its finality. In our view though the Complainant’s flats are not connected with the shop room, but as the Complainant obtained two flats/one cozy flat on the ground floor and the shop room also exists on the ground floor, hence existence of residential quarter and business spot side by side and moreover on the same floor may create disturbance to the Complainant. On the whole as there is no mentioning for construction of the shop room in the sanctioned plan, hence it can safely be said that in this respect the OP has made the construction of the shop room going beyond the sanctioned plan, which is an example of deficiency in service on the part of the OP. In respect of the gate in the main entrance as alleged by the Complainant the expert has opined that a small gate has been installed, but such opinion has not been challenged by the OP. Admittedly the Complainant has to use the gate in entering at her flat so if we analyze as to whether there is any gate or not in the main entrance, hence the cost of the entire building should not be taken into account to assess the pecuniary jurisdiction. But we have seen that in the agreement there is no whisper about the size and specification of the gate in the main entrance, so we are not in a position to draw the conclusion that installation of small gate in the entrance, if any can be termed as deficiency in service of the OP and deviation from the agreement by the OP.
Further allegation of the Complainant is that the OP has failed to deliver the possession in her questioned flats with the stipulated period as per agreement dated 16.12.2008 and for this reason the Complainant has prayed for compensation to the tune of Rs.2,00,000=00. From the agreement dated 16.12.2008 it is evident that the second party will hand over the said complete flats and garage to the first party within 18 months from the date of execution of the agreement. In the written version the OP has stated that due to non-operation of the Complainant it was not possible for him to hand over the flats along with garage to her within the stipulated period. It is further mentioned by the OP that after demolition of the old existed building where the garbage will be stored, the Complainant did the arrange the same and as the garbage could not be removed for a quite considerable period, the construction work started at a belated stage and for this reason construction could not be completed within the stipulated time as per the agreement. In respect of such plea the Ld. Counsel for the Complainant has submitted that in the agreement there is no mentioning that the Complainant will make arrangement for storage of the garbage of the demolished building, so as per the agreement she had no liability to arrange the same as per the illegal plea as taken by the OP with a view to keep himself in a safe side corner. In this respect the Ld. Counsel has relied on the judgment passed by the Hon’ble Supreme Court in the case of Gaziabad Development Authority vs Balbir Singh, reported in (2004) 5 SCC 65. We have carefully perused the said judgment and it is seen by us that Their Lordships have held that in respect of delay in delivery of possession in the flats/land, the Complainant/purchaser is entitled to get compensation from the builder/service provider. In the paragraph no-8 of the said judgment it is observed that ‘However, the power and duty to award compensation does not mean that irrespective of facts of the case compensation can be awarded in all matters at a uniform rate of 18% per annum. As seen above, what is being awarded is compensation i.e. a recompense for the loss or injury. It therefore necessarily has to be based on a finding of loss or injury and has to co-relate with the amount of loss and injury. Thus the Forum or Commission must determine that there has been deficiency in service and/or misfeasance in public office which has resulted in loss or injury. No hard-and-fast rule can be laid down, however, a few examples would be where an allotment is made, price is received/paid but possession is not given within the period set out in the brochure. The Commission/Forum would then need to determine the loss. Loss could be determined on basis of loss of rent which could have been earned if possession was given and the premises let out or if the consumer has had to stay in rented premises then on basis of rent actually paid by him. Along with recompensing the loss the Commission/Forum may also compensate for harassment/injury, both mental and physical. Similarly, compensation can be given if after allotment is made there has been cancellation of scheme without any justifiable cause.’ In the paragraph no-9 it has been observed which runs as follows-
9. ‘ That compensation cannot be uniform and can best be illustrated by considering cases where possession is being directed to be delivered and cases where only monies are directed to be returned. In cases where possession is being directed to be delivered the compensation for harassment will necessarily have to be less because in a way that party is being compensated by increase in the value of the property he is getting. But in cases where monies are being simply returned then the party is suffering a loss inasmuch as he had deposited the money in the hope of getting a flat/plot. He is being deprived of the flat/plot. He has been deprived of the benefit of escalation of the price of that flat/plot. Therefore the compensation in such cases would necessarily have to be higher. Further if the construction is not of good quality or not complete, the compensation would be the cost of putting it in good shape or completing it along with some compensation for harassment. Similarly, if at the time of giving possession a higher price or other amounts are collected unjustifiably and without there being any provision for the same the direction would be to refund it with a reasonable rate of interest. If possession is refused or not given because the consumer has refused to pay the amount, then on the finding that the demand was unjustified the consumer can be compensated for harassment and direction to deliver possession can be given. If a party who has paid the amount is told by the authority that they are not in a position to ascertain whether he has paid the amount and that party is made to run from pillar to post in order to show that he has paid the amount, there would be deficiency of service for which compensation for harassment must be awarded depending on the extent of harassment. Similarly, if after delivery of possession, the sale deeds or title deeds are not executed without any justifiable reasons, the compensation would depend on the amount of harassment suffered. We clarify that the above are mere examples. They are not exhaustive. The above shows the compensation cannot be the same in all cases irrespective of the type of loss or injury suffered by the consumer.’
The above-mentioned observation is very much applicable in the case in hand because in the said landmark judgment it is observed that in respect of delay in delivery of possession in the flat/land inspite of making entire payment or whatever it may be, then the purchaser of the flat/land is entitled to get compensation from the builder/service provider, but not in a straitjacket formula i.e. @18% p.a. The amount of compensation will be different from case to case and it will depend on the gravity of the deficiency in service. In respect of awarding compensation we have to keep in mind that how far the purchaser has been harassed by the service provider and/or how far he had to face mental pain and agony due to deficiency in service on the part of the service provider. In the case in hand admittedly the OP could not deliver the possession to the Complainant in her flats within due period as per the agreement, hence having regard to the abovementioned observation it can be said that the present Complainant is entitled to get compensation from the OP for delay in getting the possession in her flat due to deficiency in service on behalf of the OP.
Based on the aforementioned discussion we are of the opinion that the Complainant has successfully proved that (i) there was delay in delivery of the possession in the flat, (ii) painting in the doors and windows has not been completed, (iii) some balconies are not hanging, (iv) there is deviation from the sanctioned plan because shop room has been constructed on the ground floor & (v) the OP did not provided aluminium window as per the agreement.
During argument the Ld. Counsel for the OP has submitted that the opinion filed by the Ld. Expert cannot be taken into consideration for adjudication of the complaint as the Ld. Expert has replied that he did neither peruse the cases of the contesting parties nor any documents. In support of his contention the Ld. Counsel for the OP has relied on the judgment passed by the Hon’ble Supreme Court in the case of Ramesh Chandra Agarwal vs Regency Hospital Limited & Others, on 11.09.2009 in the Civil Appeal no-5991/2002. Upon careful perusal of the said judgment it is seen by us that in the paragraph no-11 Their Lordships have observed as follows-
11. Expert Opinion: ‘The law of evidence is designated to ensure that the court considers only that evidence which will enable it to reach a reliable conclusion. The first and foremost requirement for an expert evidence to be admissible is that it is necessary to her the expert evidence. The test is that the matter is outside the knowledge and experience of the lay person………. The other requirements for the admissibility of expert evidence are:-
i) that the expert must be within recognized field of expertise
ii) that the evidence must be based on reliable principles, and
iii) that the expert must be qualified in that discipline.’
The Ld. Counsel for the OP has relied on the paragraph no-12, 13 14 &15. We have carefully gone through those paragraphs. In those paragraphs it is observed by Their Lordships which run as follows-
12. Section 45 of the Indian Evidence Act speaks of expert evidence. It reads as under:
‘45. Opinions of Experts- When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts…………………’
13. ‘The importance of the provision has been explained in the case of State of H.P. vs Jai Lal & Others (1999) 7 SCC 280…………………… In order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject.’
14. ‘It is not the province of the expert to act as Judge or Jury. It is stated in Titli vs. Jones (AIR 1934 ALL 237) that the real function of the expert is to put before the court all the materials, together with reasons which induce him to come to the conclusion, so that the court, although not an expert, may form its own judgment by its own observation of those materials.’
15. ‘An expert is not a witness of fact and his evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of these criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions (Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & Others Criminal Appeal nos- 1191-1194/2005 and 1727/2007, decided on 07.08.2009).’
The Op has also placed his reliance on the last portion of the paragraph no-17 wherein it is mentioned that ‘……………….Mere assertion without mentioning the data or basis is not evidence, even if it comes from expert. Where the experts give no real data in support of their opinion, the evidence even though admissible, may be excluded from consideration as affording no assistance in arriving at the correct value.’
The OP mentioned to the judgment passed by the Hon’ble Supreme Court in the case of State of Himachal Pradesh vs. Jai Lal & Others, the observation of the said judgment has already been mentioned earlier.
Having regard to the abovementioned observation of the Hon’ble Supreme Court we are to say that in the case in hand the Ld. Expert has replied the questions put to him by the Complainant as his opinion. Thereafter the said opinion was cross-examined by the OP through questionnaire and the Ld. Expert has replied the same. Upon perusal of the document it is seen by us that Mr. Animesh Kabiraj obtained Diploma in Civil Engineering in the year 1987 from Ramkrishna Mission Shilpamandira, which is affiliated by the State Council for Engineering & Technical Education. So from the point of his educational qualification of view he was appointed as an Expert for inspection of the questioned flats and submission of his report as a Civil Engineer. As the inspection is related with his qualification, then we are of the view that being a qualified and competent person he was appointed as an Expert and filed the report as an Expert on the basis of the questions put before him by the Complainant. But the entire opinion (all answers) are not convincing to us because he gave answers some of the questions of the Complainant hypothetically without perusing the related papers and documents and not being satisfied with those answers we are not inclined to accept those answers. But some answers are convincing and we are satisfied with the same as the same are corroborated the agreement and physical inspection, which has already been mentioned in the body of this order, i.e. painting in the doors and windows has not been completed, some balconies are not hanging, there is deviation from the sanctioned plan because shop room has been constructed on the ground floor & the OP did not provided aluminium window as per the agreement. As the abovementioned aspects are co-related with the agreement, hence we are inclined to accept the said portion of the opinion as an Expert’s opinion.
In the prayer portion of the petition of complaint the Complainant has sought for reimbursement of the cost of material purchased by her for Rs.2,41,288=00 along with interest thereon from the date of purchase till the date of entire realization. It is stated by the Complainant that she was told the Complainant to purchase the materials from her own fund and make the cash memo on behalf of the developer, which will help him to get the advantage of Sale Tax, Income Tax & Service Tax and also assured the Complainant to reimburse the same later. But till date the OP did not reimburse the same and the Complainant is preserving all the cash memos of the purchased materials by her and on 25.01.2012 the Complainant being compelled entered her two agreed flats in an incomplete position and by her own expenses she completed those flats. In respect of such averment the OP has stated in the written version that the OP never asked the Complainant to procure any material for the flats by her, rather she herself volunteered to do some work as per her own choice for which this OP agreed to reimburse her within the framework of the agreement. But in doing so she had used materials which are costly than the agreed price and same was done by her not in consultation with this OP or not on his request. When the Complainant sought for reimbursement, this OP gladly agreed to pay the value of the agreed works, but the OP definitely objected to the total claim of the Complainant which included extra in terms of quantity as also quality. The OP has already handed over an account to show that the Complainant is only entitled to be reimbursed to the tune of Rs.38, 000=00. Upon considering the case of the both parties we are to say in what capacity the Complainant purchased the material of her choice and out of her own pocket in the name of the OP and/or why the OP indulged the Complainant to procure material as per her choice going beyond the terms of the agreement. So in this respect both parties have travelled beyond the agreement in which they have entered into wherein it has been specifically mentioned that ‘the second party shall have the full responsibility and liability for undertaking the construction of the project and the first party will have no concern for the same.’ Inspite of such terms and conditions both parties knowing fully well violated the same. Moreover there is no clause in the agreement regarding ‘reimbursement’. We have noticed that the Complainant has submitted some bills and vouchers raised in the name of the OP, from where it is evident that on different dates several building materials was purchased by her in the name of the OP for Rs.2,41,288=00. It is stated by the OP that the Complainant purchased very costly items going beyond the frame work of the agreement and for this reason he is not liable to make payment of the entire amount as sought for, rather he is inclined to pay the value of the agreed works. But unfortunately such statement has not been corroborated by the OP by adducing any cogent document showing the cost of the agreed works. From the averment of the OP it is apparently clear that the Complainant was told by him to purchase some building materials, but what will be the cost and value of those materials; the same has not been mentioned by the OP. Simply verbal transaction was made by and between the parties. But in this case where it is revealed from the documents that the Complainant purchased material for Rs.2, 41,288=00 in the name of the OP, hence being the builder the OP is under obligation to make payment of the entire amount to the Complainant as per the bills and vouchers.
It is prayed by the complainant for providing legal possession in the five flats as per the agreement dated 16.12.2008. In our view that out of the five flats the complainant is entitled to get three flats in unfinished condition and balance two flats in finished condition as per the agreement. The agreement dated 16.12.2008 also reveals that for three unfinished flats the complainant should pay a sum of Rs.10, 00,000=00 to the OP. We have noticed that the complainant had duly paid the said amount to the OP but allegation has been made by the complainant inspite of making payment of the aforesaid amount, legal possession has not been delivered either in respect of the two finished flats and three unfinished flats to the complainant till filing of this complaint. In our view the complainant is also entitled to get the same.
(6) Now we are to adjudicate as to whether the Complainant is entitled to get any relief as sought for or not. It is stated earlier that due to delay in delivery of possession in the flat the Complainant is entitled to get compensation. The Complainant has sought for Rs.2,00,000=00 under this count, but in our view the claim is on the higher side because nowhere it is stated by the Complainant that due to non-delivery of possession within due period she had to live in a rented house. Of course delay in delivery shows the deficiency in service for which the Complainant is entitled to get compensation. In our view if we direct the OP to pay a sum of Rs.50, 000=00 to her as compensation due to delay in delivery of possession in the questioned flat/s. The Complainant is entitled to get reimbursement towards the cost of the materials purchased by her, which is within the knowledge of the OP who permitted the Complainant to do the same not in writing, but indirectly to the tune of Rs.2,41,288=00 from the OP. The OP shall complete the aforesaid incomplete works i.e. completion of paining in the doors and windows, balcony should be hanging, which are not and aluminum window should be provided to the Complainant. In respect of compensation and litigation cost as sought for we are to say that as the grievance of the Complainant had not been redressed by the OP before coming to this Ld. Forum, hence such inaction on the part of the OP can be termed as deficient, for which the Complainant is entitled to get compensation from the OP and as by filing this complaint she has to incur some expenses for this proceeding, hence the Complainant is also entitled to get some amount as litigation cost.
CONCLUSION:
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost. The OP is directed to pay a sum of Rs.50, 000=00 to the Complainant due to delay delivery of possession in her flat, to pay a sum of Rs.2, 41,288=00 towards reimbursement of the cost of the materials purchased by her within 45 days from the date of passing of this judgment, in default, the above-mentioned total amount shall carry interest @9% per annum for the default period. The OP is directed to complete the incomplete works i.e. completion of painting in the doors and windows, hanging balcony/balconies, which is/are not and aluminium window should be provided to the Complainant as per the agreement dated 16.12.2008 within 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the order in execution. The OP is further directed to hand over legal possession to the complainant in respect of five flats out of which two should be in complete and finished condition and three flats in unfinished condition as per the agreement within 45 days from the date of passing of this judgment, in default, the complainant will be at liberty to put the award in execution. The OP shall pay a sum of Rs.10, 000=00 as compensation and Rs.3, 000=00 as litigation cost to the Complainant within 45 days from the date of passing this judgment in default, the Complainant will be at liberty to put the entire order in execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
