Smt. Sangita Paul, Member           

    This is a case filed by Sri Ahindra Agasti , S/O- Late Bhupendra Nath Agasti and Smt. Dipti Rani Agasti , both of Ashirbad Enclave, Sonarpur 24 Pgs(S) against KLM Enterprise and Tanuja Khatun , Sabina Khatun, Tania Laskar( Minor), Mr. Sarauddin Laskar, Mrs. Farida Khatun, Gazi Saheda Khatun, Mrs. Majeda Khatun, Mrs, Aheda Khatun, Sri Kanailal Mukherjee and West Bengal State Electricity Distribution Company Ltd. With a prayer for a direction to complete the pending works mentioned in the agreement as well as in the deed of conveyance as soon as possible, to provide building completion certificate in favour of complainant and to continue the supply of electricity at the flat of complainants till the disposal of the case.

    OP no. 1 is the KLM Enterprise. It is a partnership firm represented by Shri Kanailal Mukherjee having its office at Nabagram , PO: Panchpota, Garia Station, PS: Sonarpur, Kolkata-700152, Dist: South 24 Pgs.

    OP No. 2 is Mrs. Tanuja Khatun. She is the wife of the deceased Mr. Saifuddin Laskar, OP No. 2.

    OP No. 3 is Salauddin Laskar. OP No. 4A is Sabina Khatun, wife of Taifukuddin Laskar ( OP No.4) and OP No. 4 be is Tania Laskar (minor), daughter of OP No.4, Late Taifukuddin Laskar. OP No. 5 is Sarauddin Laskar. OPs number 2,3, 4 and 5 are the sons of Late. Abdul Majid Laskar and Mrs. Saiyudun Nahar.

   OP No. 6 is Mrs. Farida Khatun, she is wife of Late Mohammad Ali.

   OP NO.7 is Gazi Saheda Khatun, she is the wife of Gazi Sahidul Rahman.

   OP No. 8 is Majeda Khatun, she is the wife of Abdur Rahman.

    OP No. 9 is Ahida Khatun, she is the wife of Rajjak Hossain Khan.OP No. 6,7,8 and 9 are daughters of Late Abdul Majid Laskar and Saiyidun Nahar.They are the residents of Holding No. 56, Jadav Sarkar Road, Ashirbad Enclave, Ward No.14 under Rajpur Sonarpur Municipality, PO and PS : Sonarpur, Kolkata- 700152, Dist. 24 pgs (S). OP No. 11 is the Assistant Engineer of West Bengal State Electricity Distribution Ltd., Rajpur customer Care Centre, Kol-700149, 24 pgs (S).

   Complainants by filing this case state that an agreement for sale was prepared in between the OP and Complainants with a view to purchase a flat measuring 910 sq.ft. Super built up area. The flat is in the first floor, Block-C, Flat-1 , consisting of two bed rooms, one leaving cum dining room along with kitchen area, one attached bathroom, one bathroom and one balcony together with proportionate share of land at Mouza -Bishnupur, J.L No. 37 RS Dag No.2231 and 2232, Khatian No. 56 Jadav Sarkar Road under P.S Sonarpur Dist- 24 Pgs(S) and the consideration money for the said flat was fixed at Rs.1183000/- only and the total consideration amount was received by OP No.1. Upon payment of entire consideration money of Rs. 11, 83,000/- only the sale deed was executed by the OPs in favour of complainant on 02.01.2015. Complainants have taken possession of the instant flat in question. Complainants found so many incomplete works yet to be done in terms of agreement and it was brought to the notice of the developer, the OP No.1. OP No.1 assured to complete the pending work within 2 months but OP No. 1 did not complete the work. Complainants faced loss and injury. Pending works included installation of transformers by WBSEDCL and installation of lift. The lift was installed in Block-C. But it remained inactive from the very first day. OP No.1 did not complete community hall, Gymnasium, and pond as per sanction plan. OP No.1 did not complete power and safety system; there is no painting in the outside wall of the building and outside wall of the complex. No completion certificate was issued.

    The OP No. 1 did not supply revised building plan, license of lift, apartment tax related details, consent letter to electricity board for change of name. The main gate of Ashirbad Enclave was not constructed. Complainant was provided electricity through sub meter. Complainant is paying high rate of electricity bill. Complainants requested the OP No. 1 to take initiative for doing these pending works.

    On 12.05.2016 OP No 1 sent a letter to complainant where he admitted that so many works were incomplete and he would complete the work at the earliest. Five months have passed but the OP No.1 did not take initiative to complete the work. Complainants’ sent advocates’ notice on 01.11.2017. But failed do those works.

   The cause of action arose on 02.12.2014 and it is still continuing. Hence complainant prays for directing the OP No. 1 to complete the pending works mentioned in the agreement as well as in the deed. Complainants pray for compensation to the tune of Rs.5, 00,000/- only due to harassment. Complainants also pray for completion certificate to OP No. 1. Complainants also pray to OP No. 1 to continue electric supply in the flat of the complainant till disposal of the case.

    OP No. 1 in the written version states that the case is not maintainable in law, that the present case is malafide, speculative and harassing, that the present case is barred by the principle of waiver, acquiescence and estoppels, that the present case filed by the complainant is a part of the bigger conspiracy of the other flat owners and land owners to rob the developer. OP No.1 denies each and every allegation made and contained in different paragraphs of the complaint as false and baseless except those which have been specifically admitted.

   OP No.1 states that the complainant has taken possession after being fully satisfied. OP says that there was no Claus in the agreement for installation of electric transformer by the developer at his own cost. Electric connection has been disconnected due to non-payment of electric charge by complainant for his flat. OP No. 1 denies that an advocates’ letter was sent to him. OP No,1 states that in this case cause of action is imaginary. OP No. 1 states that as several cases are pending with regards to the property, it is not possible for the developer to provide completion certificate.

   OPs 3,4,5,6,7,8,9 filed W.V. on 05.09.2019, Salauddin Laskar is here in after referred to as OP No. 3 on behalf of the above mentioned OPs state that OP 1 and 10 are responsible carry on the construction of new building with self contained flats. By virtue of the said agreement the developer was supposed to complete the construction within 26 months from the date of sanction of building plan. Ops 1 and 10 are responsible for non completion of the construction within the stipulated period. The owners have fully co operated with the developer for the purpose of construction and have signed all necessary papers. Ops 1 and 10 shall have to bear the costs towards completion. In complete works must be done by O.P. No.1 and 10. No steps have been taken towards getting the completion certificate from the municipality. OPs 1 and 10 are liable for incomplete work.

   OP No.2 in their written version states that the complainant is not entitled to get the electric connection. A Title Suit is pending being number 94/2017 before the Ld. Second Court of Civil Judge Senior Division at Baruipur. The proposed Deed of Conveyance dated 02.01.2015 executed by the Ops 1 and 10 supported by power of attorney , where revoked by Ops 2 and 3 and also by Ops 4 to 9 and their mother late Sayadun Nahar, So the deed of conveyance becomes null and void. OP No.2 did not get his portion from the developer.

   OP No.11 in his WV states that the petition is not maintainable in law or in facts. OP No. 1 applied for new connection on 24.07.2012 and deposited the earnest money. The OP No 11 issued a Quotation on 28.06.2013 to the OP no 1. OP No. 1 was asked to deposit RS.359840/- for installing LT infrastructure, but the OP No. 1 did not deposit the said amount. Again on 20.02.2015, OP No. 1 was told to deposit Rs.380011/-. OP No. 1 deposited Rs.3,80,011/- on 28.02.2015. Then the scheme was approved by OP No.11. It is termed as “Turnkey Job”.  OP No. 11 needs clearance for giving new electric connection. There is no deficiency in service of OP No.11.

   The CC case was admitted on 18.12.2017. On 27.04.2018, OPs filed an MA petition being 59/2020 challenging the maintainability of the case. But the said petition was rejected. OP was directed to pay Rs. 500/- to complainant. RP/106/2018 was filed by the Ops 1 and 10 to the Hon’ble State Commission. Ld. State Commission has dismissed the provisional Application as per order dated 04.02.2019. On 18.06.2019 it was ordered that the land owners must be made parties for proper adjudication of the cases because land owners have revoked the power of attorney of the OP. Amendment petition was filed by complainant. Notice was sent to the Ops. On 14.08.2019 OP No. 2-9 and 11 appeared. All the OPs filed WV. On 01.11.2019  complainant files MA 38/2019 . The MA petition of the complainant was rejected. OP No. 2 prays for stay of the proceeding till disposal of the counter claim. CP act does not enable complainant to file counter claim before Hon’ble Commission. As a result MA 39/2019 and 40/2019 which was the counter claim of OP No. 2 were rejected. As per order dated 04.12.2019 OP No 2 had to pay cost of Rs. 1,000/- . 23.09.2021 was fixed for hearing of the substitution petition filed by OP 2 and 4. OP No. 2 died on 10.05.2021 and OP No.4 died on 18.08.2021. In this regard MA 21/2021 has been filed On 18.11.2021. The names of the heirs of OP No.2 and OP No.4 have been incorporated on 01.02.2022. Final argument was heard on 17.06.2022 and then we proceeded for giving judgement.

                                                       Points of Consideration

1.  Is the complainant a consumer?
2.  Are the OPs guilty of deficiency in service and unfair trade practice?
3.  Is the complainant entitled to get relief as prayed for?

                                                Decision with Reasons

01.  On perusal of documents and record, it appears that KLM enterprise and the Proprietor of the said company Mr. Kanai Lal Mukherjee on 02.01.2015 made a deed of conveyance in favour of the complainants.  OP No.1 (KLM Enterprise) and OP No.10 (Mr. Kanai Lal Mukherjee)  are the developers.  The  buildings were supposed to be erected on the lands of Mrs. Saiyedun Nahar, Saijuddin Laskar, Salauddin Laskar, Taifukuddin Laskar, Sarauddin Laskar, Farida Khatun, Saheda Khatun, Majeda Khatun and Ahida Khatun.  Complainants were allotted a flat on the first floor of Block-C.  Complainants were allotted flat No.1. The flat measured 910 Sq.ft. (Super built-up area).  The Complex is situated in RS Das Nos. 2231 and 2232, Khatian No.1379, 1380 and 1389 in Mouza Baikunthapur, J.L. No.37 under P.S.-Sonarpur within the limits of Rajarhat Sonarpur Municipality, Ward no.14, District – 24 Pgs (South) at Holding No.56, Jadav Sarkar Road, Kolkata – 700 150.  On the North of the plot there is a property of Abdul Aziz Laskar, it is part of Dag no.2231, on the South of the Plot there is property of Biswanath Chakraborty and Ajoy Chakraborty, these are the Part of the Dag No.2242.  On the East there is plot of Gobinda Ganguly and Ajoy Chakraborty. There are the part of the Dag No.2229 and 2230.  On the West, there is property of Md. Nurul Huda Laskar.  Complainants  i.e. the purchasers have paid to the vendor i.e. OPs 1 & 10.  A sum of Rs.11,82,900/- (Rupees eleven lakhs eighty two thousands and nine hundred) only, through several cheques on several dates.  The outstanding amount is Rs.100/- only.  On 02.01.2015 complainant paid Rs.100/- only.  It is clear from the memo of consideration and money receipts that complainants paid the full consideration amount.  Hence, complainant is a consumer U/S 2(5) of the C.P. Act, 2019.  So, the first point is settled in favour of complainant.

2)It appears from the documents, annexure that complainant paid full consideration amount and deed of conveyance was made on 02.01.2015.  Complainant was supposed to get the complete flat in habitable condition.  Upon inspection of the said flat it was revealed that lots of works are pending inside the flat, as well as in the complex.  These items were supposed to be completed before giving possession of the flat. These include installation of transformer by WBSEDCL, consent letter from Electricity Board for change of name, installation of lift along with license in every block, details of apartment-tax, insurance of building, community hall, gymnasium, pond in the complex and safety system, proper height of the boundary wall.  Painting in the outer portion of the building and the construction of the main gate with proper hoarding.  These facilities are common facilities which are supposed to be shared by all the flat owners.  The complainant suffers lots of problems after having entered into the flat.  In their reply to the letter dated 15.02.2016 OPs No. 1 and 10 sought cooperation from complainants and others to solve the problem.  In the letters dated 12.05.2016, 06.08.2017, OPs No.1 and 10 sought cooperation from the flat owners, including complainant.  On 30.10.2018, OP No.10 wrote letter to WBSEDCL.  OPs 1 and 10 want to show that they have taken initiative, but there was no improvement.  As a result, complainants are suffering.  OPs 2 and 3 i.e. Mr. Saifudding Laskar and Mr. Saluddin Laskar revoked the power of attorney of OPs on  27.08.2014 and not only that T.S. 94 of 2017 is pending before the Ld. 2^nd Civil Judge (Senior Division) at Baruipur.  It is filed by Mr. Saifudding Laskar.  The claim is lodged against all the intending purchasers including complainant, Kanailal Mukherjee and KLM enterprise T.S. 405 of 2015 is also pending in the court of Ld. Civil Judge Senior Division at Baruipur.  It is also filed by Mr. Saifuddin Laskar and OPs 1 and 10 and other intending purchasers against complainant.  On the other hand WBSEDCL informed that it was not possible to provide electric connection within the stipulated period, due to legal complexities. OPs 1 and 10 again sought cooperation from the purchasers to show that it was not his sole responsibility. Md. Salauddin (OP-2 died on 10.05.2021) and Md. Taifikuddin Laskar (OP-4 died on 18.02.2020) died leaving behind her heirs.  W.P. is pending before Hon’ble High court since 2018 filed by Farida Khatun (OP-6) and Mr. Suraaauddin Lashkar (OP No.5) died leaving behind his wife, the only heir.  At this juncture, power of attorney has been revoked and complainants are suffering for no fault of their own.  OPs 1 and 10 received money from complainants but they could not reside in the flat.  Hence, complainant suffers due to illegal revocation of power of attorney by OPs 2 and 3. The death of Saiyedn Nahar, OPs No.1 and 10 has to receive power of attorney from the remaining OPs.  Nothing was followed.  Fact remains that complainants did not get the flat in habitable condition.  OPs 1 and 10 could not do the pending work, which amounts to deficiency in service and unfair trade practice.  Hence, the 2^nd point is settled in favour of complainants.

03. Complainants purchased the flat but could not reside in the flat.  OPs 1 and 10 could not complete the work in time.  It was stated in the agreement which was signed on 16.01.2012 that the developers i.e. OPs 1 and 10 were supposed to complete the flat within 36 months from the sanction of the building plan.  OPs 1 and 10 could not complete the flat within stipulated period.  Though he handed over the flat to complainants, the condition of the flat was not satisfactory.  Due to incomplete work, complainants did not get C.C.  There is no separate electric connection in the flat of complainants.  OPs 3, 4, 5, 6, 7, 8 and 9 state that OPs 1 and 10 are responsible for all these hazards.  Actually they are shrugging off their responsibilities on the plea that OPs 2, 3 revoked the power of attorney.  As it is a joint venture agreement, the landowners are required to co-operate with the developers for uninterrupted work.  But the landowners worked for their personal gain.  As power of attorney has been revoked, OPs 1 and 10 are unable to do the pending work.  Complainants have become the scape goat.  Complainants are deprived even after making full payment.  Hence, the 3^rd point is settled in favour of complainants.

In the result, complaint succeeds.

Hence, it is,

ORDERED

That the complaint be and the same is allowed on contest with cost of Rs.10,000/-.

The OPs 1 and 10 jointly or severally are directed to refund Rs.11, 83,000/- with 10% interest w.e.f. 02.11.2015 till disposal of the case within 60 days from the date of this order.

OPs 1, 10, 2 and 3 jointly or severally are directed to pay compensation to the tune of Rs.1, 00,000/- only to complainant within the stipulated period.

Complainants are at liberty to put the order into execution if the orders are not complied with, within 60 days from the date of this order.

A copy of the order be supplied fee of cost to the parties concerned.

The final order will be available in the following website: www.confonet.nic.in

       Dictated and corrected by me

                   Sangita Paul

                     Member