For the complainant: Md. Mazed Ali, complainant, in person
For the Opposite Parties: None appeared.
Date of Hearing: 29-10-2019
Date of Judgment: 31-10-2019
J U D G M E N T
B y DR. (MRS.) JUSTICE INDIRA SHAH, PRESIDENT
Heard Md. Mazed Ali, the complainant, appearing in person. None has appeared on behalf of the opposite parties.
2. The facts of the case filed by the complainant in brief, are that, the complainant while in service as Judicial Officer, at the verge of his retirement and with a dream to settle permanently at Guwahati, found an advertisement in ‘Assam Tribune’ and when contacted the builder, he was invited to Noonmati, Guwahati. The opposite party No. 2 Sri Rajib Konwar, representing himself as partner of opposite party No. 1 Md. Muzaharul Islam Patgiri, led the complainant and his wife to a newly constructed building named as ‘Royal Cherry Enclave’. He handed over a brochure to the complainant and explained the types and floor area of the flats and their respective price. The complainant was informed that 90% of the works had already been completed and remaining work would be completed within a month. The complainant expressed his desire to buy the Flat D-1 in the first floor. After negotiation, the price was fixed at Rs. 38,00,000/-. Both the parties entered into an agreement for sale on 27-12-2013 on payment of Rupees five lakhs by the complainant towards the total consideration of Rupees thirty eight lakhs as first installment on the date of agreement. As per the agreement, the complainant was to pay second installment of Rupees fifteen lakhs within twelve days of the payment of first installment. The complainant paid the second installment within the stipulated period. It is stated in the agreement that on receipt of the second installment the seller would deliver (one room of the three bed rooms flat) to the buyer for keeping his household goods under lock and key and the seller would give free access to this room till completion of the remaining part of the said flat. It is also stipulated in the said agreement that within one month of payment of the second installment, the buyer would make the payment of third installment of Rupees ten lakhs to the seller who in turn would hand over the vacant possession of the remaining part of the said flat in finished condition with all facilities as mentioned in the brochure of Royal Cherry Enclave. The fourth installment of Rupees eighth lakhs was to be paid by the buyer to the seller at the time of registration of the Sale Deed.
2. The complainant paid the first as well as the second installments which the opposite party duly acknowledged. As the opposite party failed to complete the work as agreed upon, the complainant did not pay the third installment. According to the complainant, after receiving Rupees twenty lakhs from the complainant, the opposite party No. 2 asked the complainant to purchase tiles for the kitchen, two bathrooms and the main wood flash doors, the cost of which would be adjusted against the remaining unpaid amount. The complainant accordingly purchased the materials worth of Rs. 25,000/-.The complainant insisted to complete the remaining work where upon the opposite party insisted to pay Rupees ten lakhs. The complainant on 24-6-2014 made payment of another five lakhs which the opposite party duly acknowledged. Some works were done but the entire works were yet to be completed. The opposite party Nos. 1 and 2 insisted for payment of remaining thirteen lakhs without completion of the work. The complainant on being threatened by the opposite parties that they are intending to sell the flat to some other buyer, made payment of two lakhs vide a cheque on 16-11-2014. Till then the 100 KW Electric Transformer and Lift were not installed and the necessary safety works of staircase and tiles works of the lobby were not done. On 19-12-2014, the opposite party Nos. 1 and 2 told the complainant that on payment of Rupees eight lakhs, they would deliver the vacant possession of the entire flat and remaining works of the buildings would be completed within a week. The complainant on being assured , paid Rupees eight lakhs vide two cheques on 19-12-2014 and the opposite parties handed over the possession of the flat without completion of the remaining work. After one month, the complainant found that entire ground floor was flooded as one of the water tap of the said locked flat No. D was broken, the basins with were heavy scratch and one of the two bathrooms, plastic door was undersized and another was broken. The wooden door frame of the kitchen was a decayed one. According to the complainant, the opposite party No. 2 who had personally supervised the fittings of the goods and materials in the flat, had adopted unfair trade practice for unlawful gain. When complainant complained about the inferior quality of goods, the opposite parties asked him to replace those at his own costs which was to be adjusted against the remaining unpaid amount at the time of execution of Sale Deed. This way, out of compulsion, the complainant had already paid more than Rs. 35.50,000/- out of the total price of Rs. 38,00,000/- to the opposite parties. The opposite party No. 1 was to execute the Sale Deed on receipt of thirty lakhs only. Apart from four passenger elevator and 100 KW Electric Transformer, the construction of entire boundary walls, main iron gate, floor of car parking, well lit staircase finished with marble, lobbies finished with vitrified tiles, front elevation with weather shield exterior paintings, were not done.
3. It is submitted by the complainant that the due deficiencies the value apartment building has extensively reduced not only in respect of its utility and standard but also endangered the life of the flat dwellers. It is urged that the initial value of thirty eight lakhs for the flat D-1 has come down to below twenty lakh. So the opposite parties are legally bound to execute the Sake Deed at the recalculated price and to refund the balance amount to the complainant. In order to obtain Sale Permission, from the District Administration, an application is to be signed by both the parties and when the complainant gave the application of Sale Permission to the opposite parties, they declined to sign the application.
4. It is further submitted by the complainant that he is willing to handover/give back the possession of the flat, if the entire paid amount of Rs. 35,50,000/- with interest, is refunded or alternatively the opposite parties may be directed to execute the Sale Deed at the reduced price of Rs. 20,00,000/- (Rupees twenty lakh only) and to refund Rs. 15,00,000/- (Rupees fifteen lakh only) with interest @ 20% per annum and to complete the construction of remaining part of entire building with all facilities as mentioned in the brochure of Royal Cherry Enclave and pay compensation of Rs. 10,00,000/- for causing mental pain and Rs. 50,000/- towards the cost of litigation.
5. The opposite parties did not appear even after service of notice and have failed to contest the claim. The complainant had adduced his own evidence and evidence of one witness on affidavit. He has exhibited 24 documents in support of his case.
6. The complainant has exhibited the brochure Exhibit-4 which stipulates the specifications, the money receipts and the transaction made on his account by the opposite parties, the Deed of Agreement for sale, vouchers with regard to payment of different materials, the Possession Letter of flat No. D-1 dated 19-12-2014.
7. From the evidence on record, it transpires that the opposite party No. 2 Rajiv Konwar, represented as partner of M/s Samrat Construction, did all the activities i.e. publishing advertisement, finalizing the deal, accepting cheques towards payment of considerations. The receipt/acknowledgement was given by the opposite party No. 1. The opposite party No. 1 also informed the complainant that the opposite party No. 2 was his partner in respect of M/s Samrat Construction.
8. The complainant in his evidence in affidavit has narrated the entire facts contended in the complaint. Witness No. 2 Sri Manash Bhuyan, Secretary of Royal Cherry Enclave Society, corroborating the evidence of the complainant, has stated that the four passenger elevator of the building and 200 KW electric transformer were yet to be installed. The work of well lit staircase finished with marble and lobby with vitrified tiles remained unfinished. The exterior weather coat paintings, exterior rain guard pipe work of the buildings were not done. There are many leakages in the roof of the buildings. The car parking floor is incomplete. The main iron gate was not installed. The boundary was is also not erected completely. The flat dwellers for their own safety have constructed iron railing of the entire staircase at their own cost of rupees one lakh. Due to lack of 200 KW transformer, the flat owners are unable to install home appliances like air conditioner, geyser, microwave oven etc. The flat owners of the Society with the help of APDCL personnel and Civil Engineer, have prepared an estimate of RS. 35,00,000/- (Rupees thirty five lakhs) to install 200 KW transformer, four passengers lift, railings and marble works of staircase and lobbies, main iron gate, boundary walls, exterior paintings and car parking floor. He also stated that the builder has fixed wooden doors and frame, bathroom fittings of inferior quality for which most of the flat owners have to replace those at their own cost. He has also alleged that the opposite party No. 1 has not yet executed the Sale Deed in favour of several flat owners even after receipt of the agreed price.
9. From the evidence on record as already discussed, it appears that there is a prima facie case to hold that there is gross deficiency in service on the part of the opposite parties in providing the amenities in respect of flat D-1 agreed to be sold to the complainant.
10. In the case of Ashok Kumar Shivpuri vs Ashok B. Chajjar, CMD, Arihant Enterprises in Revision Petition No.3152 of 2008, decided on 6th September, 2019, the contention of the respondent was that the amenities promised in the brochure do not figure in the Agreement and therefore there is no deficiency of service. It was held that any assurance given in the brochure is the initial promise based on which the flat purchaser makes a decision whether to purchase the subject flat or not.
11. In this case, apart from the oral evidence of the witnesses, the photographs filed and exhibited by the complainant, clearly depicts the deficiency of service for which the complainant is entitled to compensation.
12. The complainant in person has informed that he has filed a Civil Suit against the opposite parties for specific performance of the contract and therefore the prayer to direct the opposite parties to take back the possession of flat D-1 on refunding the entire amount of Rs. 35,50,000/- with interest or to execute the Sale Deed in favour of the complainant at the reduced price Rs. 20,00,000/- and to refund Rs. 15,00,000/- with interest may be treated as not pressed.
13. It is averred in the complaint that the opposite party No. 1 Md. Muzaharul Islam Patgiri is a Real Estate Developer and Managing Partner of M/s Samrat Construction. The opposite party No. 1 introduced himself as partner of M/s Samrat Construction engaged in business of Real Estate. He has been managing the construction work and selling flats under construction of M/s Samrat Construction. Therefore, both the opposite parties are jointly and severally liable to pay the compensation.
14. Section 28 of the Indian Partnership Act, 1932 may be reproduced here;-
“28. Holding Out: (1) Any one who by words spoken or written or by conduct represents himself, or knowingly permits himself to be represented, to be a partner in a firm, is liable as a partner in that firm to any one who has on the faith of any such representation given credit to the firm, whether the person representing himself or represented to be a partner does or does not know that the representation has reached the person so giving credit.
(2) Whether after a partner’s death, the business is continued in the old firm name, the continued use of the name or the deceased partner’s name as a part thereof shall not of itself make his legal representative or his estate liable for any act of the firm done after his death”.
15. The opposite party No. 2 finalized the subject deal with the complainant and he accepted the cheaues as part payment of consideration which the opposite party No. 1 acknowledged issuing receipt. Therefore, we can safely hold that opposite party No. 2 is a partner of M/s Samrat Construction and opposite party No. 1 and 2 both are jointly and severally liable to pay compensation for deficiency in service. The opposite parties are thus directed;-
(a) To provide all the facilities as per brochure at their own expenses in flat No. D-1 of the complainant, in default, shall pay Rs. 3,00,000/- (Rupees three lakhs only), enabling the complainant to complete the work.
(b) To pay to the complainant a sum of Rs. 7,00,000/- (Rupees seven lakhs only) as compensation for deficiency of service.
(c) To pay Rs. 50000/- (Rupees fifty thousand only) to the complainant as compensation for mental agony and
(d) To pay Rs. 10,000/- (Rupees ten thousand only) as litigation expenses incurred by the complainant.
The opposite parties are directed to pay the aforesaid amount within three months from the date of this judgment, failing which the entire amount awarded, shall carry interest @ 18% per annum from the date of this order till realization.
The complaint is allowed with the above direction and disposed of accordingly.
Furnish a copy of this judgment to both the parties.
