BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION.
KAMRUP
C.C.No.53/2017
Present: I) Shri A.F.A.Bora, M.Sc.,L.L.B.,A.J.S(Rtd.)-President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
Sri Samir Das -Complainant
Son of Late Subodh Chandra Das, House No. 6,
Shreebitan Enclave-Second Floor, Unit No..B-2,
Kanaklata Path,
Guwahati-781034( Assam).
-vs-
Mrs.Sanju Saha -Opposite party
Wife of Sri Nepal Chandra Saha, House No. 6.
Kanaklata Path,
Guwahati-781034( Assam).
Appearance:
For the complainant :- Mr.D.K. Jain, Mr. N Mazumder, Mr. Prasenjit Mazumder Learned advocates .
For the opp.party Mr.S.Chauhan, Mr. A.R.Shome, Mr. Shekhar Chauhan, Mr.S.K.Chauhan , Mr.P.Mazumder Learned advocates
Date of filing written argument:- 25.8.2021
Date of oral argument:- 2.11.2021
Date of judgment: - 11.11.2021
JUDGMENT
1) This is a complaint filed under Section 11/12 of the Consumer Protection Act, 1986 by one Sri Samir Das against Mrs. Sanju Saha in respect of providing Car Parking Space & completion of crack repairing of the building by opp.party. The fact of the case narrated briefly as it appears on the complaint is that the opp.party had entered into a Registered Agreement for Sale of a Residential Flat situated on the First Floor of a building Shreebitan Enclave at Uladbakra, Guwahati-34 with the complainant vide Deed No.8127/2010 dtd. 6.12.10, registered in the office of the Sub-Registrar, Kamrup (M) at Guwahati. Thereafter on receipt of full and final payment from the complainant , the opp.party executed & registered a sale Deed of Flat vide Deed No. 7988/2011 dtd. 5.9.11 in the name of the complainant .
2) The complainant stated that the aforesaid agreement for sale deed of flat dtd. 5.9.11, there is a provision for one car parking space to the complainant . Further , in the schedule of Flat there is also a provision to provide car parking space to the complainant by the opp.party within two years from the date of said sale deed. But inspite of regular request of the complainant, the opp.party has not yet provided the same to the complainant . Inspite of repeated request the opp.party has not provided the car space to the complainant for which the complainant is very much difficulties to purchase a car.
3) The complainant also begs to state that the opp.party has not yet completed the finishing works of the few portions of the said building . Besides this there happened a major crack in the said building in May, 2013 which is very dangerous for the safety of the building as well as the inhabitants of the said building including the present occupant. On several request of the complainant the opp.party assured and promised in September ,2014, October 2015 and August ,2016 , but she did not do anything or provide the same. Then the complainant along with another flat owner Mrs. Krishna Deb sent a registered letter on 30.11.2016 and 8.12.2016 to the opp.party requesting her to complete the pending work (Major crack and car parking ) . On receipt of the registered letter the opp.party came on middle part of December 16 and again assured the complainant and another flat owner Sri Samir Das and stated to complete all the works and car parking within Feb/17. But she again failed to keep her promise. Then the complainant sent a pleader’s notice to the opp.party on 28.3.17, but in spite of receiving the said notice the opp.party did not take any initiative about the crack or the car parking of the complainant .
4) The opp.party also cheated the complainant by not fulfilling the terms and conditions of the Registered Agreement for sale and the sale deed. Due to all these incidents the complainant always remained in mental agony and also facing unnecessary harassment for no fault of him and for this the opp.party is liable and responsible to compensate the complainant adequately besides doing all the pending works as promised and assured by her. Finding no other remedy, the complainant has decided to approach before this commission for the redressal of his grievances.
5) It is therefore, humbly prayed that (i) complete all the pending works of the building (ii) Immediately repair all the crack portions of the said building. (iii) Provide the car parking space to the complainant in the ground floor of the said building , (iv) pay Rs.2,00,000/- as compensation for the mental agony and unnecessary harassment suffered by the complainant (v) cost of the complaint may also be awarded and any other relief which the complainant is entitled to under the law and equity may also be awarded.
6) The opp.party contested the proceeding by filing written statement and gist of the written statement is as follows,
The opp.party stated that she entered into an agreement for sale of residential flat vide agreement No. 8127/2010 dtd. 6.12.10 and also executed deed of sale of flat vide deed No. 7988/2011 dd. 5.9.2011. There is a provision for one car parking space on the ground only and not on the ground floor , which the opp.party is denying and for this complainant approached several time. Opp.party stated in their written statement that she does not know why the complainant stated about providing /not providing car parking space and alleged that “due to not getting car parking the safety of the vehicle ” is not there.
7) The opp.party further stated that finishing work on the part of the flat of the complainant has been completed and there is no major crack in the building and as such, no question of request by the complainant to repair the crack of the building as there is no crack . It is also denied by the opp.party that one flat owner lodged a complaint regarding repair of the building. It was told by the opp.party to co-operate the complainant regarding the car parking space.
8) The opp.party further stated in the written statement that as the sale deed was executed and therefore, the deed of agreement is no longer in force .
9) Before deciding the disputing question it is necessary to determine whether the fact of the dispute covers the definition of consumer u/s 2(d) (i) of C.P. Act, 1986 read as under ,
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires[ or avails of ] any services for a consideration which has been paid or promised or partly paid and partly promised, or under any payment of deferred payment and includes any beneficiary of such services other than the person who hires [of avails of ] the services for consideration paid or promised, or partly paid or partly promised , or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person [ but does not include a person who avails of such services for any commercial purpose]
10) The fact of the case so far reveals from the evidence on record it appears that there was an agreement between the complainant and the opp.party in respect of a specific property mentioned in the sale agreement by a sale deed . The schedule of the property has been clearly mentioned vide Schedule A, Schedule B and Schedule C. The question of car parking space mentioned in the Schedule C (f) is clear enough that it will be a common amenities and enjoyment after completion with the building within two years from the date of agreement . If we look on this provision of this agreement for sale then it appears that if anything has not been done in pursuance of the sale agreement there is a provision for civil remedy by way of specific performance of duty which parties ought have made within the period of specified or before execution of the sale deed.
11) Evidence of C.W.1 , Sri Samir Das is in respect of sale deed and deed of agreement for sale .The deed of agreement for sale was executed vide Registered Deed No. 8127/2010 dated 6/12/2010 containing of details about the schedule property of the flat purchased by the complainant . Now the evidence of C.W.1 is also specific and clear of the fact that vide Ext.2 the aforesaid flat was purchased on 9.11.2012 by deed No. 10513. This sale deed is executed in favour of the complainant narrating the Schedule of the property on Ext.2. The vendor after execution of the deed conveys all heritable and transferable rights, title and interest unto the said flat area of the first floor building as described in the Schedule stating that they are free from all encumbrances together with right common to their owner or occupiers in the said building or any part thereof use all facilities such as approach road, sewerage, electricity connection, water supply connection, boundaries , staircase etc. After execution of the aforesaid sale deed the condition incorporated at schedule of flat with a car parking space will be provided by the vendor within two years from the date of this sale deed is an additional clause annexed within the schedule of the sale deed which is in our opinion have not created any consumer rights to the complainant .
12) The fact of the case does not made out any consumer rights seeking redressal against Unfair Trade Practice, restrictive Trade Practice and it does not cover provision of definition of Consumer u/s 2(d) (i) of C.P.Act, 1986. The definition of deficiency in service is not in question as there is a sale deed made by the opp.party in favour of the complainant after the sale agreement. Hence after Execution of sale deed the sale agreement become infructuous and no liability remains after execution of the sale deed in respect of any agreement for sale. If there is any terms and conditions of the sale agreement the party could have approached the appropriate forum for redressal of their grievances before execute of the sale deed.
13) In the result, we are of the view that the evidence on record does not disclose any unfair trade practice or any consumer rights of the complainant. The petition is without any merit and is dismissed.
Given under our hand and seal of the District Forum, Kamrup, this the day of 11th November ,2021.
Dictated and corrected by me
Shri A.F.A Bora
President , District Consumer Commission, Kamrup
Smt A. D. Lahkar Shri A.F.A Bora
Member President
District Consumer Commission, District Consumer Commission,
Kamrup Kamrup
Typed by me
Smt Juna Borah
Stenographer,
District Consumer Commission,
Kamrup
