DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 487/2013
Date of Filing: Date of Admission Date of Disposal:
03.09.2013 04.09.2013 24.06.2015
PETITIONER = Vs. = O.Ps.
Shyamalaya Apartment owners’ Association 1. M/s Asco Enterprises
having its office at 51, Vidyasagar Road, a proprietorship firm having
Subhasnagar, Dum Dum Cantonement, its principle place of business and
P.O.-Rabindranagar, P.S.-Dum Dum, office at DC-116, Narayantala
Kolkata-700065, west, Deshbandhunagar, VIP Rd.
Dist-North 24 Parganas, P.S.-Rajarhat, Kolkata-700059
represented by its sole secretary Dist-North 24 Pgs, West Bengal.
namely-Smt. Reba Mukherjee represented by its sole
proprietor namely-
2. Sri Madhusudan Chakraborty
S/o. Sri Hari Ranjan Chakraborty
Residing at DC-116, Narayantala
(west), Deshbandhunagar, VIP Rd
P.S.-Rajarhat, Kolkata-700059,
Dist-North 24 Pgs, West Bengal.
3. Sri Gurudas Biswas
S/o. Lt. Adhar Chandra Biswas
4. Sri Gopal Chandra Biswas
S/o. Lt. Adhar Chandra Biswas
5. Sri Manmatha Nath Mondal
S/o. Lt. Aswini Kumar Mondal
All are residing at 51,
Vidyasagar Road,
Dum Dum Cantonment,
P.O.-Rabindranagar,
P.S.-Dum Dum, Kolkata-700065
Dist-North 24 Parganas, W.B.
J U D G E M E N T
Facts of the case, in short, is that the complainant is a registered association vide registration no-26A of 2011 under name and style “Shyamalaya Apartment owners’ association” having its office at 51, Vidyasagar Road, Subhasnagar, Dum Dum Cantonment, P.O.-Rabindranagar, P.S.-Dum Dum, Kolkata-700065, Dist-North 24 Parganas.
Complainant stated that the OP No-1 is a proprietorship construction firm having its principle place of business and office at, DC-116, Narayantala (West), Deshbandhunagar, VIP Road, P.S.-Rajarhat, Kolkata-700059, Dist-North 24 Pgs, West Bengal represented by its sole proprietor the OP No-2.
Complainant also stated that the OP No-1 to 2 /developer has entered into an unregistered agreement for development with the OPs no-3 to 5 land owners on 12.08.2005 and on the strength of said unregistered agreement development and registered power of attorney dated 06.08.2005 registered on 06.08.20005 before the additional registrar of assurance, Kolkata and having been entrusted and empowered by the landowners 1) Sri Gurudas Biswas 2) Sri Gopal Chandra Biswas 3) Sri Manmatha Nath Mondal, the landowners over the land and premises at, holding no-39/1, Vidyasagar Road now being premises no-51, Vidyasagar Road, Dum Dum Cantonment, Rabindra Nagar, P.S.-Dum Dum, Kolkata-700065 upon some terms and conditions and consideration as laid down in the said agreement for development to develop and promote the land measuring about 6 cottahs 12 chittacks 9 sq. ft in accordance with the building sanctioned plan duly sanctioned and approved by the competent authority.
Complainant further stated that after completion of the part construction works as per sanction plan and specification the OP No-1 to 2 handed over the peaceful khass and vacant possession of their flats in favour of the all intending buyers. But the OP no-1 to 2 has not yet issued any possession certificate in favour of the buyers. The OP no-1 to 2 also promised to handover a copy of completion certificate” but till date no copies of such completion certificate has been given by the OPs in favour of the buyers and have not shown any intention to deliver the same.
Complainant stated that there is lot of incomplete and unfinished works has been left by the OP No-1 to 2, which has not been completed and finished or done by the OP No-1 to 2 intentionally and deliberately to harass the complainant.
Dictated and corrected Contd. …. 3/-
C. C. Case No.-487/2013
- :: 3 :: -
Complainant also stated that the complainant along with other flat owners had done lot of constructional works rather completed the said unfinished and incomplete work as left by the OP No-1 to 2, or his own by way of investing a huge quantum of amount of Rs 12, 15, 225/- from their won fund jointly to complete are liable to be refunded in favour of the complainant and all the flat owners.
Complainant further stated that the OPs have contractually obliged and liable to provide all sorts of common services and to complete the all incomplete constructional work over the suit property as agreed by the OPs as mentioned in the agreement for sale and deed of conveyance. But the OPs till date neglected and failed to provide all sorts of common services and to complete the all-incomplete constructional work over the suit property as per terms and conditions of the said agreement for sale. Hence the complaint.
OP No-1 and 2 has contested the case by filing written version, others OPs did not turn up to contest the case.
OP No-1 and 2 stated that the complaint has also not maintainable as the complaint is primarily a suit for part performance of contract which is apparent from the prayer made in the relief clause and the complainant has filed only to evade the ad-valorem court fees.
OP No-1 and 2 also stated that the discussion with all flat owners in jointly meeting was going on but all of sudden OP No-1 received one letter on the letter head of Shyamalaya Apartment owners’ association” served by Reba Mukherjee as a secretary with signature of 17 flat owners. The said notices were for the subject matter of non-compliance and develop of the proposed multi-storied construction of the premises. The said letter of the complaint was reached to the OP No-2 on 25.08.2012 and immediately the OP No-2 send reply letter dated 06.09.2012 to all of the member of the complainant. In the said reply letter the OP No-2 asked the complainant’s members that neither he was aware about formation of owners association and requested all members to came at his office with the necessary papers to settle the matter. But maximum number of the reply letters, which were posted to all members of complainant returned back by the postal department stating the cause as “not claimed”.
OP No-1 and 2 further stated the complainant was trying to harass the OP No-2 for un advantage therefore found no alternatively the OP No-2 served legal notice to the complainant, served upon by Ld. Advocate M.L. Sharma dated 22.02.2013.
Dictated and corrected Contd. …. 4/-
C. C. Case No.-487/2013
- :: 4 :: -
In the said legal notice under the submission the formation of owners association by the complainant was challenged and compensation of Rs 25, 00, 000/- was claimed from the complainant.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision with Reasons
On behalf of the complainant one Smt. Reba Mukherjee, Secretary of the complainants Association as filed affidavit in chief and OP No-1 and 2 submitted affidavit in chief. We have perused the affidavit and documents filed by the complainant. Admittedly complainants are the flat owners of the OP No-1. Admittedly complainants are in the possession of the individual flats. Grievances of the complainants is the OPs did not hand over the completion certificate of the in the individual flats to the complainants and OPs did not complete the incomplete construction works inspite of repeated demands by the complainant. It is also alleged by the complainant that complainants spend and amount of Rs 1, 21, 5225/- for completing the incomplete works. Complainants has prayed for to direct OPs to bear the enhanced cost of the registration and directing OPs to pay compensation of Rs 7, 00, 000/- for harassment and mental agony and directing OPs to issue the completion certificate to the complainants and also directing OPs to pay the entire tax and rent till the receiving of completion certificate. Complainants did not submit any accounts as to what enhanced cost of the registration they have paid for the individual flats. So this alleged amount cannot be determined by this Forum on the basis of presumption. But OPs are responsible to complete the incomplete works of building and also to bear the cost of the incomplete works which were spend by the complainant. Complainant has taken local inspection in the disputed property by appointing an Engineer Commissioner through this Forum.
Ld Commissioner has submitted his report and from the said report Ld Commissioner found that the “plastering work of the common stair was in complete condition from top to bottom. More over surrounding of common area of the building was uncovered mainly front portion was not walled up but vacant up but vacant area in the building was being filled up with heap of garbage along with a privy without modern arrangement of S-Tank, creating bad smell surrounding the area.
The front portion in between two flats was still incomplete having a hole for future lift (no effort of completion).
Dictated and corrected Contd. …. 5/-
C. C. Case No.-487/2013
- :: 5:: -
The essential roof treatment for longevity of roof was not yet completed, more over good drainage system for quick removal or rainy water was absent in the building.
Present S-Tank of the building was too small in comprising with the five storied building having 21 flats especially depth of the tank was too short.
According to the agreement the electric wiring was still opened instead of conceal system.
The OPs of the suit failed to submit fire protection certificate of the Municipality to the flat owners.
The OPs were less interested to feel the facilities and difficulties of the flat owners even they gave shelter at the ground floor to two political party officers and to a club without following plan.
Not only that some stall holder were given shelter surrounding the ground floor of the building in place of garages in the sanctioned building plan.
Main peculiarity was that their was only one entrance of the whole building having an existence of a meter box at the half portion and stair case running on the said box to, the upper floor, which is required to be removed to other suitable place for easy movement to the flat owners.
The furious condition may arise in future for the awkward condition of the only entrance of the big building.
It is very troublesome to the complainers that there is no permanent place of the OPs to place their difficulties at the time of their need.”
Ld Commissioners also submitted actual position of the present stair, lift and submitted some photo graph from which it is very evident that there are several works of construction of the building yet to be completed. In these circumstances we are of the view that the OPs are responsible to complete the incomplete works of the disputed building and also responsible to pay the cost born by the complainant for emergency works of the individual works. In view of the aforesaid discussion we have no hesitation to hold that the complainants are entitled to get part relief in this case.
Dictated and corrected Contd. …. 6/-
C. C. Case No.-487/2013
- :: 6:: -
Hence
It is ordered,
that the complaint and same be allowed on contest against the OP No-1 and 2 and exparte against OP No-3 to 5.
All OPs are jointly and severally directed to hand over the completion certificate to the complainant within three months from the date of this order.
All OPs are directed to complete the incomplete construction as per commissioner report within three months from the date of this order.
All OPs are also directed to bear the expenses of the complainants which they spend for the emergency works of the individual works.
All OPs are further directed to pay compensation of Rs 50, 000/- for delay and harassment and Rs 10,000/- as litigation cost to the complainant within three month from the date of this order, failing which OPs shall have to pay sum of Rs 200/- per day from the date of this order till its realization, as punitive damages, which shall be deposited by the OPs in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member Member President
Dictated & Corrected by me.
