Order No- 13                                                                                                           Dt.:-14.03.2019.

Hon’ble Mr. Syed Nurul Hossain, President

FINAL ORDER 

                  This is a consumer case under section 12 of the consumer protection act filed by the complainant Dibakar Chaudhuri against the O.P. Jibitesh Kundu in respect of fault in perfection short coming in adequacy in the quality nature and manner of performance in respect of flat No. 4/C at Mandi Villa apartment situated at Natun Para under Ward No.6 of Jalpaiguri Municipality in the District Jalpaiguri.

                The complainant has stated interalia that the O.P. has constructed the building at Mandi Villa Apartment at Kadamtala under P.S Kotwali Jalpaiguri. The complainant has executed deed of agreement for sale with the O.P. on 18.07.2016 and the same has got affirmed/authenticated under Notarial Certificate dt. 18.07.2016 and thereby the complainant purchased the Flat4/C. The complainant has been paying Equated monthly installment @ Rs. 13252/- to the Reliance Home Finance Limited against the mortgage. The complainant after taking over possession of the Flat found that there is deficiency in respect of structural defect and not in conformity with the sanction plan passed by the Jalpaiguri Municipality dt. 12.06.2014. The complainant asked O.P. developer for taking curable measure but has failed to do. So the complainant filed the instance case for remedial measure in respect of deficiency found in the Mandi Villa apartment as follows :-

1. No shed has been constructed over the water tank.
2. That several shrinkage cracks are developed inside the wall of the said flat and some places of apartment is damaging life of the building /construction.
3. That poor quality wood has been used in doors and doorframe of the said flat and cracks are developed therein.
4. That quality of Aluminium channel has been used in the windows of said flat as a result of which it is not being properly locked.
5. That tiles fitted in the bathroom are of poor quality and as such cracks has developed therein. Also poor quality plastic door was fitted in the bathroom. That remains breakable handle and affects lock system. Due to improper sloping in bathroom it causes stagnant of water. Roof door has not been fitted.
6. That lift fitted in the said building are not being operated smoothly and as such the same may cause serious accident.
7. That building lacks of fire control room. Moreover meter junction points are not properly covered by providing any protection adequately.
8. That occupancy certificate of fire certificate has not been obtained.

                       The complainant has sent legal notice through his Ld. Advocate Mr. Ujjal Chakraborty on 13.08.2018 regarding deficiency in service and unfair trade practice by the O.P. Promoter/Builder but the O.P promoter has refused to acknowledge the notice. Therefore the instant case has been filed.

                 To ascertain structural defect or deficiency Shri Debddyuti Basu Civil Engineer has been appointed by the complainant with the permission of the court but no application under provision of order 26 Rule 9 & 10 A of the Civil Procedure Code Read with Regulation 26 of the Consumer Protection Regulation has been made. He after inspection has found the following material defect in respect of the said apartment as follows……

1. In the bathroom, toilet and kitchen also, there is no proper slope maintained in the floor causing problem in water logging.
2. There are many cracks inside walls of the specified flat and the total apartment suffers due to improper construction, which should be repaired properly and immediately.
3. The door shutters and the door frames are not made of matured wood, causing cracks in the door shutters and gap between the door frames and the door shutters.
4. The Aluminium sliding windows are not properly fitted and fixed and the locks of which are not working properly, which is causing water pouring in the rainy season.
5. Installation work of the Elevator is not done properly, causing many problems like, floor adjustment and others and may be a risky one. Even the lift was not working on the date of Inspection.
6. There is no fire fighting arrangement in the apartment (which is a must job as per rule) causing fear of any fire accident in the apartment. Also, there is no proper electric wiring installation, mainly the junction boxes are open which may cause danger to the residents.
7. The shed over the water reservoir has not been constructed.
8. The residents of the said flat could not produce any completion certificate or occupancy certificate during the inspection, which they did not receive form the Developer.
9. Fire safety certificate was also not produced during the inspection as it is not given to the residents by the Developer.

                  The complainant made (i) the Chairman Jalpaiguri Municipality (ii) The Divisional Fire Officer Jalpaiguri Division and (iii) The Manger Reliance Home Finance Limited as Proforma opposite parties but no relief has been claim against them. Their presence is not necessary for adjudication of the case. Therefore their name has been expunged vide order no. 14.02.2019 because they have no say in adjudication of this case.

                    Deed of agreement for sale of Flat No. 4/C measuring at the 4^th floor at the southern side of the building was Allotted/Booked on advance payment of Rs. 20,000/- out of agreed sale consideration of Rs.1930000/- by the complainant to the O.P./Developer Description of flat No. 4/C has been mentioned in Schedule A of the Agreement For Sale. Register deed of convince was executed and signed by the vendor on 22.09.2016.

                    At that time of registration of sale deed by the O.P. Jibitesh Kundu(Promoter) in  favour of flat owner/complainant Dibakar choudhuri there was no mention to handover completion certificate of Mandi Villa apartment to complainant flat owner. Also there was no mention in the deed of sale about giving fire safety certificate by the O.P. Promoter to flat owner/complainant. At the time of agreement for sale there was no deficiency pointed in respect of flat. Also sale deed does not disclose deficiency as pointed out by the complainant in its application under section 12 of the Consumer Protection Act. Technical inspection report submitted by Shri Debdyuti Basu Civil Engineer cannot be relied upon. In usual procedure commission for scientific investigation is being appointed upon an application under order 26 Rule 9 & 10A of the Civil Procedure Code Read with Regulation 26 of Consumer Protection Regulation. Report of the Civil Engineer has not highlighted the remedial measure need to be taken for curable purpose. Also deficiency report is not specific but evasive. No measurement of the cracks in the walls has been mentioned. Reason for none working properly of elevator has been mentioned in specific term. There was no mention of construction of shed over the water reservoir in the recitals of sale deed. Fire safety certificate and completion certificate of the concern flat have not been demanded in writing by the complainant at the time of taking over possession of flat. Moreover recitals of sale deed are silent over the said issue. Therefore it shall be presumed that the complainant had no objection in taking over concern flat from the O.P./Builder.

                   Besides that the complainant has raised the issue on 14.09.18 though he took over position of the flat on 22.09.2016.  It is a delicate issue so the civil Court is competent enough to adjudicate delicate issue as to the points raised by the complaint after lapse of almost two years. Scientific investigation as to quality of material used need either to be tested in the Forensic Science Laboratory or Government authorized Laboratory. Evidence of expert is necessary to elucidate the truth. So this Forum is of view that terms and condition of the agreement of sale and register sale deed do not speak out about deficiency as highlighted in the complainant itself.

                 In Harbans & Company Vs State Bank of India 1994 (I) CPR 381 it has been held that when the case is not a simple case of deficiency of service and involves determination of complex questions of facts and law, which cannot satisfactorily determine by redressal agency in the time frame provided Under the Rule, it would be better for the complainant to seek redress of his grievances in a Civil Court, if so advised.

                 In view of above decision the complainant is at liberty to file civil suit before the competent court of law for redressal of his grievance. But the allegation labeled against the O.P. / Promoter is not supported either in the agreement for sale or the register sale deed. Both the deeds are silent about the deficiency complained by the complainant. At the time of taking over possession, the complainant could have pointed out material deficiency alternatively to get back money from the O.P. quality of materials used in the building cannot be adjudicated based on complaint but the Structural Engineer specialized over the subject would have sought expert opinion. Therefore the complainant has raised evasive dispute but not supported by report of Structural Engineer. Moreover law of acquiescence i.e. Rule of law debars to raise subsequent plea after taking over possession of flat.

In the result the case fails.

Accordingly it is,                        

O R D E R E D

That the case be and the same is dismissed ex parte. There will be no order as to cost. The complainant is at liberty to file civil suit before the competent Civil Court on the self same issue.