Order No.-53 Dt.-17/09/2015
Sri A. K Das, President
Complainant’s case in short is that he purchased a 3rd floor flat i.e. Flat no.F31 at Pahari Para within Jalpaiguri Municipality at Rs.10,12,500/- from the O.Ps. vide Sale Deed no.334 dt.22/01/2013. The complainant also took possession of the said flat on 22/01/2013 and since then he has been residing therein . It is alleged by the complainant that he found that the construction of his flat was not good and the materials used therein are substandard and there are cracks in the walls of his flat and the plaster in several places of his flat is chipping out and there is seepage at several places in the corner of the roof and the walls of the flat. There is also seepage in the kitchen. It is alleged by the complainant that the O.P.1 alongwith O.Ps. 2 to 7 handed over him the said flat by practicing fraud and they also collected much amount from him. Hence the case.
The O.Ps. have resisted this case by filing a Written Version wherein the O.Ps. have denied and disputed the claims and contentions of the complainant with prayer for dismissal of the case with cost.
Their specific stand is that they handed over the flat in question to the complainant on 22/01/2013 and since then he has been residing therein and on 05/05/2013 the complainant by a written acknowledgement on a non-judicial stamp paper of Rs.10/- had recorded his full and final satisfaction regarding his flat wherein besides the complainant other witnesses put signature as attesting witness. The complainant never made such complaint before them and they first time came to know about the allegation of the complainant after receiving the petition of complaint and that as the A/C payee cheque for Rs.60,000 issued by the complainant in their favour was dishonored and as a criminal case being C.R.Case no.378/2013 u/s 138 of the N.I.Act is pending against him in the court of Ld. C.J.M. Jalpaiguri, the complainant has filed this case on false allegation to create pressure upon them.
POINTS FOR CONSIDERATION
- Is the case maintainable both law and fact?
- Is the complainant a consumer as per provision of Consumer Protection Act.1986?
- Are the O.Ps. guilty for deficiency in service and/or Unfair Trade Practice as alleged?
- Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
All four points are taken up together for consideration and decision.
Seen and perused the petition of complaint , the Written Version (both are supported by affidavits), the document filed by parties, the report of the Engineer Commissioner and the W/A filed by the parties.
We have heard the arguments advanced by the Ld.Lawyers of both sides at a length in full.
Now after due consideration of all these we find that admittedly the complainant purchased his flat in question from the O.Ps. on 22/01/2013 by a registered deed and since then he has been residing in his said flat. Admittedly the complainant has recorded his full and final satisfaction regarding the construction etc. of his said purchased flat on a non-judicial paper of Rs.10/- in presence of some witnesses who put signatures on that non-judicial stamp paper as witnesses. Therefore it is clear that at the time of taking possession of the flat in question the complainant had no complaint/allegation against the O.Ps. regarding the construction etc. of his flat and he took possession of his flat as per terms of agreement and the sale deed in toto. That apart the flat in question was not inspected/ examined by any competent expert civil engineer at the instance of the complainant to ascertain as to whether the materials and goods used in construction of flat in question were substandard and as to whether there is substance in respect of other points as described in paragraph 7 of the petition of complaint before filing of this case. The complainant has filed this case on 05/07/2013 and on 04/04/2014 complainant filed a petition for local inspection of the flat in question and the prayer was allowed and Sri Anirban Kundu was appointed as Engineer Commissioner for holding local inspection of the flat. Sri Anirban Kundu has submitted his final report on 22/01/2015. After going through this report we find that Sri Anirban Kundu couldnot say as to whether the materials and goods used for construction of the flat in question were substandard or not. Thus this report can no way help- the complainant to prove his allegation against the O.Ps. Furthermore no other flat owner has come forward to collaborate the allegations of the complainant regarding construction of flat and materials used. So we can safely come to the conclusion that O.Ps. are not guilty for deficiency in service and/or Unfair Trade Practice. Now from the sale deed of the complainant we find that as per terms of the sale deed the flat owner, here the complainant shall have to maintain his flat and not by the sellers i.e the O.Ps. after sale and delivery of the possession of the flat. So as per terms of complainant’s sale deed no.334 dt.22/01/2013 the O.Ps. had/have no liability at all regarding the construction of flat and maintenance of the flat since after 22/01/2013. In this view of the matter we have no hesitation to hold that the complainant was/is not a consumer of the O.Ps. after 22/01/2013. Aforesaid discussions led us to hold that the complainant has failed to prove his case and that he is not a consumer of O.Ps. Hence the case deserves dismissal and accordingly the complainant is not entitled to get any relief in this case.
All points are disposed of.
In the result the case/application fails.
Hence, it is
O R D E R E D
that the case/application is dismissed on contest with cost of Rs.3,000/-(Three Thousand) only. The complainant is directed to pay to the O.Ps. the aforesaid cost within 30 days from the date hereof failing which the O.Ps. shall be at liberty to realise the same in accordance with law.
Let copy of this final order be supplied to the parties free of cost forthwith in terms of Sec.5(10) of West Bengal Consumer Protection Rules 1987.
