West Bengal

South 24 Parganas

CC/10/231

GOPAL KRISHNA DHAR. - Complainant(s)

Versus

MR. SASWATA DAS. DIRECTOR OF M/S SHUBHAM PLAZA. - Opp.Party(s)

DEVJYOTI BARMAN.

30 Sep 2015

ORDER

      DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. _231_ OF ___2010_____

 

DATE OF FILING : 20.9.2010     DATE OF PASSING JUDGEMENT:  29.9.2015__

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Mrs. Sharmi Basu & Jinjir Bhattacharya

                                                                             

COMPLAINANT             :     1. Gopal Krishna Dhar,s/o late S.K. Dhar, Flat no.6

                                                 2a.   Debasis Ghosh,s/o late Ajit Kr. Ghosh

                                                2b.   Saswati Ghosh,w/o Debasis Ghosh , Flat no.5

                                                3.  Suvarthi Choudhuri,s/o Swapan Kr. Choudhuri,Flat no.5

                                                4.  Pushpendu Chakrabori, s/o Purnendu Chakraborty, Flat no.7

                                                5.   Amalangshu Pal, s/o H.K. Pal, Flat no.2

                                                6a.   Satyen Roy,s/o late Ajit Roy

                                                6b.  Smt. Malati Roy,w/o Satyen Roy, Flat no.3,

                                                All of 62, Banamali Naskar Road, Kolkata – 60, P.S. Behala.

 

-VERSUS  -

 

O.P/O.Ps                            :   1. Mr. Saswata Das,s/o late Sukhoranjan Das, Director of                             M/s Shubham Plaza Maker Pvt. Ltd. at 683/1, Diamond Harbour Road, P.S. Behala, Kolkata – 34.

                                            2. M/s Shubham Plaza Maker Pvt. Ltd. represented by Director of                             M/s Shubham Plaza Maker Pvt. Ltd. at 683/1, Diamond Harbour Road, P.S. Behala, Kolkata – 34.

 

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President                                    

            This is an application under section 12 of the C.P Act, 1986 filed by the complainant.

            It is the short case of the complainant that on the strength of the Development Agreement O.Ps were authorized to construct G+3 storied building on 5 cattah of land for the purpose of its commercial exploitation and in view of which complainant no.1 ,the then owner of the said property, got the entire top floor of A schedule property along with 200 sq.ft car parking space. The remaining portion was left to the O.P for the construction purpose, car parking space etc. for his exclusive exploitation by way of transfer etc. It has further stated that O.Ps accordingly by obtaining sanctioned plan completed the construction work and delivered to the complainants as per the said developer agreement dated 14.8.2001 the entire top floor of A schedule property along with other common facilities as enjoyed by the other flat owners , complainant nos. 2 to 6. It has mentioned that complainant  no.1 being an erstwhile owner of premises no.74, Banamali Naskar Road, Kolkata – 60 also executed and registered a power of attorney on 14.8.2001 being no.2799 in favour of the O.Ps to facilitate the construction and completion of the A Schedule property and to transfer his allocated portion to the prospective purchasers and  O.Ps thereafter on different occasions transferred various flats which are part of A schedule property including the complainant nos. 2 to 6 by way of five numbers of deed of conveyances on different dates . It has alleged that the respective deeds as stated above also described the spaces/areas reserved for common uses and facilities by the flat owners. In the schedule of common parts and portion ,the O.Ps clearly stipulated and covenanted to provide and/or transfer the purchasers –complainants herein a  guard room, generator room for the maintenance and safety of the flat owners for their use and enjoyment. The sanctioned plan also shows the space/area reserved for the guard room, generator room and water pump room . But O.Ps constructed the said spaces earmarked for the said common facilities in such a manner that same cannot be use as Guard Room, Generator room , water pump room etc. but did not divulge anything on query. It has stated that for the last few months insptie of several requests O.Ps did not deliver the same for which complainant-1 already seeking hostile conduct and revoked his power of attorney dated 26.3.2009 by registered deed of revocation being no. 230 for the year 2009.  It has also claimed that O.ps did not hand over the sewerage and drainage plan, electrical installations plan/diagram etc. and are trying to transfer the said spaces mentioned in schedule B to the third party illegally. Hence, this complaint for delivery of possession of B schedule property for the common use by the complainant as stipulated in their deed of conveyance and to hand over sewerage cum drainage plan, electrical plan, , cost, compensation etc.

            Both the O.Ps are contesting the case by filing separate written versions. O.P-1 by filing written version has denied all the allegations leveled against him. It is the specific case of the O.Ps that this complaint case is not maintainable and the same is barred by limitation as the same is beyond the period from the date of cause of action.  It is the positive case of this O.P-1 that non-providing certain amenities and/or facilities  superseding the agreements entered between the each complainant individually with M/s Subham Plaza Maker Private Limited and that too after execution and registration of their respective deed of conveyance , ld. Forum cannot adjudicate the instant dispute and cannot pass order declaring which amenities and/or facilities is required to be provided on the basis of the documents and the relief sought for can only be granted by the competent Civil Court  that too on recording the volumes evidence and if the same is not barred by the limitation and as such present case cannot be adjudicated in summary trail proceedings. It has further claimed that with regard to raising illegal constructions in the complainants’ flats the developer company raised objection before the KMC authority. It has further stated that complaint was not filed by the said Association and the complainants filed the said complaint clubbing their individual interest and/or cause of action together . Accordingly the case is bad for misjoinder of parties. It has mentioned that the date of handing over delivery of possession to the complainant -1 is 31.1.2006  and other complainants in between 2006-2007. So, this complaint application is hopelessly barred by statutory period of limitation and bit by section 24A of the C.P Act, 1986. Accordingly, O.P-1 prays for dismissal of the case.

            O.P-2 M/s Shubham Plaza Maker Pvt. Ltd.  also filed written version and has denied all the allegations leveled against them. It is the claim of this O.P that the case is not maintainable and barred by limitation since this complaint is filed beyond the statutory period of limitation of two years after taking possession. It appears that both the written versions are almost identical in nature ,for which, we do not like to reproduce the same unnecessary.Accordingly,O.P-2 also prays for dismissal of the case.

            Points for decision in this case is whether the O.ps acted any deficiency in service or unfair trade practice.

                                                            Decision with reasons

            It may be mentioned here that this case was disposed of by this Forum on 25.2.2013 and in terms of the order the case was dismissed on contest against the O.Ps with a liberty to approach before the Civil Court for proper adjudication, if not otherwise barred. The complainant has preferred appeal challenging the order of this Forum and the Hon’ble State Commission while disposing F.A.336/2013 on 13.6.2014 has observed that “Having heard submission made by the respective parties and on perusal of the materials on record it appears that deed of sale in respect of complainant nos. 1 to 4 was executed on 6.11.2008 and the case was filed on 20.9.2010 and it is within the prescribed time as contemplated under section 24A of the C.P Act,1986. Accordingly, the appeal was allowed and remanded back to this Forum with a direction to dispose of the case on merits according to Law as expeditious as possible ,that is why, the case is remanded to this Forum and tried again before this Forum.

            At the very outset, we must have to say that this Consumer Protection Act 1986 is based on beneficial legislation. Here in the instant case we have to verify why the complaint was lodged against the developer and as to whether the complainant is being satisfied in terms of the agreement.

            It appears from the Building Plan no.2002140342 approved by the KMC on 21.8.2002 whether any guard room, pump room, generator room was mentioned in the ground floor or not because complainant has claimed that sewerage cum drainage plan, electrical line plan, completion certificate and generator room, guard room and water room W.C room have not been delivered ,although deed of conveyance was made and possession was delivered. It appears from the building plan approved by the KMC from the ground floor plan we find that there is a provision of pump plus generator room and guard room as well as W.C room.

Thus definitely complainants are entitled to get all these common rooms as described in the B Schedule of the development agreement in terms of the approved Building Plan of the building being a member of owners’ Association.

            It is true that Ld. Advocate of the O.P has argued that this case was not filed on behalf of the owners’ association. But that does not mean that complaint case will be thrown out. It is not the case of the O.P that these complainants are not members of the owners’ Association. On the contrary , it has come to our knowledge at the time of hearing from the Ld. Advocate of the complainant that  these complainants are members of the owners’ association. We are aware that all the times all the owners are not interested to file complaint and also avoiding the court procedure  . So, that argument advanced by the Ld. Advocate of the O.P has no leg to stand .

            The next argument of the O.P is no doubt very much attractive in the first phase that the case is barred by limitation as the same is filed beyond two years from the date of cause of action and also stated in the BNA that this case has been filed for certain amenities and facilities being not provided, that too, after execution and registration of the deed of conveyance in respect of the flat in dispute and further submits that this Ld. Forum cannot pass order declining that what sort of service is not provided and other reliefs sought for can only be granted by a competent Civil Court ,that too, recording voluminous evidence and as such the present case cannot be adjudicated in a summary trial.

            In order to refresh our memory we once again repeat that the previous Bench also dismissed the case with a liberty to the complainant to approach before the Civil Court for proper relief ,if not, otherwise time barred. But the complainant preferred appeal before the Hon’ble State Commission and Hon’ble State Commission allowed the appeal and directed this Forum to dispose of the case on merit, that is why the argument of the Ld. Advocate of the O.p has no leg to stand upon.

            Now the question is whether the complaint case is barred by limitation after deed of conveyance and possession delivered, as submitted by the Ld. Advocate of the O.P.

            We are really unfortunate to express our same view in the matter, particularly when the Hon’ble National Commission on 2001 CPJ at page 71 has observed while disposing of the revision application that since the completion certificate has not yet been delivered, the complaint , the complaint petition cannot be treated as time barred since completion certificate and occupancy certificate was not issued.

            In this case we find that complainant has also filed a prayer in (b) for completion certificate including the other amenities as mentioned in the B Schedule of the complaint petition. So, cause of action is a bundle of facts and it will be start firstly from the date of agreement for sale , secondly handing over possession, thirdly execution and registration of the deed of conveyance, fourthly  complete the agreed portion in toto and as per sanctioned plan and agreement and lastly after obtaining completion certificate. Thus the cause of action is continuing till completion certificate is not yet been provided by the Developer in view of the above mentioned Case Law.

            It is true that the is case is very old one and deed of conveyance was executed in different dates of 2006-2007 ,even one deed in the year 2008 and possession was delivered in the year 2008 or early.  So, the Ld. Advocate has claimed that statutory period of two years limitation as prescribed already elapsed. But we find  in the peculiarity of this case that although registration was made, possession was delivered but guard room, generator room, water pump room etc. which have been mentioned in Schedule B of the complaint including sewerage cum drainage plan and electrical line plan and completion certificate have not yet been delivered. So, sitting in a chair of Forum to redress the dispute of the consumer at large we have to consider that until and unless completion certificate, sewerage plan, drainage plan, electrical line diagram is not being handed over and generator room, guard room as well as water pump room and W.C ,how the complainants being a members of the owners’ association (if there is any owners’ association ) acts for the interest of the other occupants as well as for themselves, particularly when , if there is any necessity of changing of sewerage cum drainage plan, in that event plumber will be in dark regarding the execution of work in relates  to sewerage cum drainage plan. Similarly, if any electrical defect arises which is very much inevitable not only to the building but also in the individual flats owners of the building, then electrician will be in dark since electrical line plan and diagram  are not being supplied to the consumers or other owners of the Association and completion certificate is a must which proves that building has been constructed in terms of the building plan in toto but all these things including the Generator room, guard room, water pump room , W.C room are being held up and not delivered by the O.ps and now the argument on behalf of the O.P is that it is a time barred and the matter will be decided by the Civil Court. We are sorry to accept that submission and we find that this Forum has enough opportunity to give relief to the complainant, particularly when the completion certificate , occupancy certificate have not yet been issued which amounts to continuing cause of action in view of the reported decision of Hon’ble National Commission reported in 2011 CPJ 71.

            Thus we find that it is a glaring example of deficiency of service and unfair trade practice by the O.Ps.

 

 

            Hence,

                                                                        Ordered

That the complaint case be and the same is allowed on contest against both the O.Ps  with cost of Rs.25000/- to be paid by the O.Ps jointly and/or severally since the complainant has suffered lot in legal procedure since 2010.

Both the O.Ps are directed to hand over the sewerage cum drainage plan, electrical line plan/diagram, completion certificate along with handing over earmarked generator room, guard room, water pump room and W.C room as shown in the residential building sanctioned plan within one month from the date of this order.

The O.Ps are also directed jointly and/or severally to  pay Rs.1 lac towards compensation for mental agony and physical harassment along with  cost of this case within that period ,failing which complainants are at liberty to execute the order through this Forum.

Let a plain copy of this order be sent to the O.Ps through this Forum for strict compliance and a copy be handed over the complainant free of cost for information.

 

 

Member                                                           Member                                               President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

                                                                                    Ordered

That the complaint case be and the same is allowed on contest against both the O.Ps  with cost of Rs.25000/- to be paid by the O.Ps jointly and/or severally since the complainant has suffered lot in legal procedure since 2010.

Both the O.Ps are directed to hand over the sewerage cum drainage plan, electrical line plan/diagram, completion certificate along with handing over earmarked generator room, guard room, water pump room and W.C room as shown in the residential building sanctioned plan within one month from the date of this order.

The O.Ps are also directed jointly and/or severally to  pay Rs.1 lac towards compensation for mental agony and physical harassment along with  cost of this case within that period ,failing which complainants are at liberty to execute the order through this Forum.

Let a plain copy of this order be sent to the O.Ps through this Forum for strict compliance and a copy be handed over the complainant free of cost for information.

 

 

Member                                                           Member                                               President