Present (1) Nisha Nath Ojha,
District & Sessions Judge (Retd.) President
(2) Smt. Karishma Mandal,
Member
(3) Anil Kumar Singh
Member
Date of Order : 22.11.2018
Nisha Nath Ojha
- In the instant case the Complainant has sought for following reliefs against the Opposite party:-
- To direct the opposite party to pay Rs. 1,00,000/- for mental harassment and Rs. 5,000/- per month for physical harassment from the date of allotment i.e. 06.08.2006.
- To direct the opposite party to pay Rs. 10,000/- as litigation expenses.
- The facts of this case lies in a narrow compass which is as follows:-
The complainant has asserted that she has entered in an agreement with the opposite party for purchasing the flat in 2006 and the price of the flat was fixed as Rs. 7,93,000/- vide annexure – 1. Thereafter at the request of opposite party she has given Rs. 1,50,000/- for erecting lift. Thereafter opposite party had issued allotment letter on 08.06.2006 in which the price of flat in question was written as Rs. 7,93,000/- but there was no any whisper about the money given by the complainant for erecting lift in the apartment in question as per request of opposite party as will appear from annexure – 2. At the request of opposite party the complainant got possession after execution of sale deed on 11.09.2007 as will appear from annexure – 3.
The grievance of the complainant is that despite annexure – 1 and annexure – 3 the opposite party had not completed the flat as per annexure – 1 and neither has completed the flat because the apartment is still incomplete as wiring etc. nor sewage of bathroom or latrine water was repaired. The further grievance of the complainant is that she is residing in fourth floor and in absence of lift and other structural defect she is suffering much. The complainant has neither returned Rs. 1,50,000/- to the complainant which she has given to the opposite party at his request for fitting lift nor the opposite party has erected lift, provided generator or repaired the several defects of incomplete apartment.
On behalf of opposite party written statement has been filed stating therein that Rs. 2,50,000/- remained with the complainant. It has been further asserted by the opposite party that lift has been established in the said complex and she had not given Rs. 2,00,000/- to the opposite party and the entire allegation made by the complainant is baseless. It has been further asserted that complainant being fully satisfied with the flat no. 402 got sale deed registered and came in peaceful possession. It has been further stated that the opposite party constructed the lift but later on purchaser of the flat failed to make payment in time due to which trouble arises. The detail of the amount due with the complainant and resident of the apartment has been annexed by opposite party in annexure – 1 and annexure – 1 is dated 23.04.2010 has been annexed by opposite party to show that elevators were erected in the said flat.
It further transpires that to clarify the claim and counter claim a pleader commissioner was appointed who has visited the flat in question for physical verification. The report of pleader commissioner was given to opposite party which is also part of the record. The opposite party was provided the copy of pleader report but neither a reply has been filed nor the opposite party appeared to part in the further proceeding of this case. From the report of pleader commissioner it transpires that neither stair case has been properly plastered nor drainage were complete, boundary wall was also defective and there was no facility. The roof of the apartment there was a crack and no fire extinguisher were installed in the apartment.
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So far the claim of the complainant that she had paid Rs. 1,93,000/- to the opposite party at his request is concerned there is no evidence likewise there is no evidence on the record to show that Rs. 2,50,000/- is outstanding with the complainant as asserted by the opposite party but it transpires that there were several defects in the construction of the flat as pointed in the report of pleader commission.
It goes without saying that opposite party is bound to hand over the flat to the complainant in furnished condition as mentioned in annexure – 1 and 3 of the complaint petition.
In our opinion by not handing over the flat as per terms and conditions of annexure – 1 and 3 of the complaint petition the opposite party has committed deficiency on his part.
For the discussion made above we hereby direct the opposite party to remove the entire structural defect pointed in the report of pleader commission dated 02.03.2017 within the period of three month from the date of receipt of this order or certified copy of this order.
Opposite party is further directed to pay Rs. 30,000/- (Rs. Thirty Thousand only) to the complainant by way of compensation and litigation cost within the period of three month.
Accordingly, this complaint stands allowed to the extent referred above.
Member Member(F) President
