Dr. Subir Kumar Chaudhuri ,Member

Order No.   14    Dated  22/02/2013.

                The case of the complainant in short is that complainant is a consumer within the meaning of Consumer Protection Act since he has purchased a flat from o.p. nos.1 and 2 against payment of valuable consideration money. O.p. no.1 is a company and it has claimed to be the constituted attorney of M/s Perfect Promoters (P) Ltd. and 16 other persons who are the landowners of land in Mouza Mandalganti and Kaikhali under Rajarhat P.S.

                O.p. no.2 is the developer engaged by the landowners through their constituted attorney i.e. o.p. no.1 for construction of several buildings in different blocks together with other facilities and amenities over the land owned by the said 17 landowners.  O.p. no.3 is managed by o.p. nos.1 and 2 and it has been authorized by them to maintain the housing complex “Indraprastha” at VIP Road, Kaikhali.

                On 31.8.98 complainant had entered into an agreement with o.p. nos.1 and 2 for purchasing one flat in Building no.I, Block-C on the ground floor measuring 1150 sq.ft. at Kaikhali. At the time of agreement o.p. nos.1 and 2 also gave a brochure of the proposed housing complex to be constructed by them, wherefrom representation was made that in the housing complex, there will be a community hall, temple, children playground, shopping arcade etc.

                O.p. nos.1 and 2 represented that the said housing complex ‘Indraprastha’ would have several facilities viz. community hall, temple, children’s’ playground, water filtration plant, generators, shopping arcade etc. Based upon such representation given by o.ps. through the brochure, complainant entered into an agreement for purchasing one flat in the said housing complex in Building-I, Block-C, Flat no.001 on the ground floor having an area of 1150 sq.ft. super built up, which was been more specifically described in the schedule and hereinafter called scheduled flat.

                The said agreement was having two parts. First part of the agreement is/was in respect of undivided proportionate share of land beneath the concerned building attributable to the scheduled flat to be purchased by complainant. The concerned money for the undivided proportionate share of the land is/was Rs.28,750/-. O.p. no.1 being the constituted attorney of the landowners is the signatory to this part of the agreement. The second part of the said agreement was in respect of the scheduled flat no.001 which  was purchased by complainant for a consideration money of Rs.4,60,000/-. O.p. no.2 being the developer is the signatory to this part of the agreement.

                Apart from the consideration money of proportionate undivided share of the land and said flat, o.p. nos.1 and 2 also charged Rs.17,250/- for electric connection Rs.500/- for the formation of holding organization Rs.19,250/- for additional facilities Rs.12,150/- towards legal expenses and Rs.17,250/- for extra facilities aggregating to Rs.64,400/-. Complainant paid the total consideration money of Rs.5,63,500/- to o.ps. in respect of the scheduled flat by a/c payee cheque dt.2.9.98 being cheque no.246611 dt.2.9.98 drawn on Indian Bank, Central Avenue Branch for Rs.5,63,000/- for which o.p. no.2 issued money receipt no.652 dt.4.9.98.

                O.ps.  along with their brochure, had also given the floor plan of the scheduled flat purchased by complainant. As per the said plan the scheduled flat was shown having two verandahs.

                It has been mentioned in the second part of the agreement between complainant and o.p. no.2 that a holding organization would be formed for maintaining the common expenses of the building complex and o.p. no.2 took Rs.500/- for formation of such owner’s society and/or holding organization.

                The said building complex was built up gradually and when this complainant was delivered possession of the scheduled flat o.p. no.2 assured the complainant that they will construct verandah shortly and that time construction of various other part of the housing complex was going on. O.ps. further assured complainant that extra facility was per brochure would come up in the said complex. It was further agreed between complainant and o.p. nos. 1 and 2 that the maintenance charge would be @ Rs.0.25 per sq.ft. but the same would be payable by complainant after he starts residing there.

                After obtaining possession complainant asked o.p. nos.1 and 2 to execute registered deed of conveyance but they dragged and delayed doing so different pretexts. O.p. nos.1 and 2 neither executed the sale deed nor did they form association of flat owners for which they charged Rs.500/- from complainant nor did they provide any additional or extra facility for which o.ps. had taken Rs.34,500/- under these two heads. O.ps. instead of forming flat owner’s association made a fictions entity “Indraprastha Maintenance Co. (IMC)” which is the associate of o.p. nos.1 and 2 and managed by them and started collecting maintenance charges and some other inflated charges in an illegal manner.  

                Complainant was surprised to receive such ghost demand in the name of maintenance charges and other charges as such he sent a notice dt.29.12.06 to o.ps. and asked them to execute a proper sale deed, to form a society of flat owners for maintaining common facilities and for withdrawal of impugned ghost bill issued by said maintenance company.  O.ps. did not form any flat owners association for which they had charged Rs.500/- from complainant further o.ps. and /or t heir said maintenance company never provided statement of account at any point of time. Hence the case was filed by complainant with the prayer contained in the petition of complaint.

                O.ps. did not contest the case by filing w/v and matter was heard ex parte against o.ps.

Decision with reasons:-

                We have gone through the pleadings of the complainant, evidence and documents in particular and we find that complainant purchased a flat from o.p. nos.1 and 2 against valuable consideration money. O.p. no.1 is a company and claimed to be the constituted attorney of M/s Perfect Promoters (P) Ltd. and o.p. no.2 is the developer and o.p. no.3 is managed by o.p. nos.1 and 2. further we find that on 31.8.98 complainant entered into an agreement with o.p. nos.1 and 2 for purchasing one flat in Building no.I, Block-C on the ground floor measuring 1150 sq2.ft. at Kaikhali and o.p. nos.1 and 2 gave brochure of the proposed housing complex to be constructed by them, wherein there was assurance of having community hall, temple, children playground, shopping arcade, etc. and o.p. nos.1 and 2 intending to construct the said complex in the said venue invited offers from general public for purchasing flat and/or other commercial units in the said complex and the agreement in question had two parts and complainant was given possession and the possession of the flat and the same was not as per terms and agreement and not consistent with the brochure supplied by o.p. nos.1 and 2 and this action on the part of o.p. nos.1 and 2 amounts to deficiency in service being service provider to its consumer / complainant and complainant is entitled to relief.

                Hence, ordered,

                That the case is allowed ex parte with cost against o.p. nos.1 to 3. O.p. nos.1 and 2 are jointly and/or severally directed to execute the deed of conveyance in favour of the complainant in respect of the scheduled flat as shown in the petition of complaint and are further directed for construction of two verandas at the scheduled flat inconformity with a plan and are further directed to pay to th complainant compensation of Rs.20,000/- (Rupees twenty thousand) only for harassment and mental agony and litigation cost of Rs.5000/- (Rupees five thousand) only. O.p. no.3 is hereby directed to withdraw all the impugned bills raised by o.p. no.3 against the complainant.  O.ps. are strictly directed to comply with the aforesaid order within 45 days from the date of communication of this order, i.d. an interest @ 9% shall accrue over the entire sum due to the credit of the complainant till full realization.

                Complainant is at liberty to file execution case before this Forum in case of non execution of the aforesaid order in its entirety within the stipulated period under the provision of the COPRA, 1986.

                Supply certified copy of this order to the parties free of cost.