Order No. - 65                                                                                                                   Dt.-21/05/2015

            Complainants’ case in brief is that they entered into the agreements with the OPs(promoter/builders) on various dates in the year 2009-2010 for purchase of flat and the Ops executed sale deeds in their favour on various dates in the year 2010 in respect of their flats and delivered them the position of the in flats. It is alleged by the complainant that after getting position of their respective flats they have been constantly facing various unwanted and uncalled for problems while enjoying their purchased properly and that the OPs have refused to complete the remaining works as per terms of agreement and thereby the OPs have committed breach of contract and they are liable for deficiency in service and unfair trade practice. The complainant have prayed for an award for Rs.20,00,000/- in total against the OPs.

The OPs have contested this case by filing W/V denying and disputing the claims and contention of the complainant with prayer for dismissal of the case with cost.

Their specific stand is that the complainants after being fully satisfied about the construction works, which they visited time to time, took delivery of position of their respective flats and they have not made any complaint before them before filing of this case(the case was filed after 2 years appx. from the date of delivery of position) and that there was no in-complete works in the building to be done and that they filed T.S.-48/2011 against WBSEDCL and the complainants for recovery of money and injunction as the complainants didn’t pay the installation charge of electric transformer and that the complainant served Notice upon them on 14/12/10 & 13/05/11 where in they raised no allegation of in-complete works, bad quality works etc. and their sold object to file this case is to escape themselves from refund of cost of installation charge of electric transformer.

-::Points for considerate::-

1) Is the case maintainable?

2) Are the complainants consumer?

3) Are the OPs liable for deficiency in service & unfair trade practice as   alleged?

4) Are the complainants entitled to the relief as prayed for?

-::Decision with reasons::-

All points are taken up together for consideration and decision.

Seen and perused the pleading of the parties supported by affidavits, the documents and the W/A filed by the parties. We have heard argument of Ld. Lawyer of the OP only as the Ld Lawyer for the complaints declined to argue the case in writing.

After due consideration of aforesaid materials and the argument of Ld Lawyer of the OP we find that admittedly the complaint after their purchase took physical position of their respective flats from the OPs in the year 2010 some times after execution of their sale deeds by the OPs. The Ops have specifically stated in their W/V that the petitioners / complaints almost each and every day use to visit the works during construction of their flats and they never raised objection on any point of time and they after being fully satisfied about the works took delivery of position of their respective flats and made no complaint to them regarding their flats before filing of this case. The complainant have not challenged these statements of the OPs by filing counter affidavit or by filing authentic documents.

It appears from the letters dt. 14/12/10 & 8/06/11 sent to the OPs by the Ld. Lawyer of the complainants that their is no allegation of deficiency in service or unfair trade practice against the OPs as has been alleged in the petition of complaint. That apart the allegation / point raised on those letters can only be determined and settled by a competent Civil Court by taking evidence of the parties etc. and not by this Forum in summery procedure hearing.

Admittedly the OPs filed TS-48/2011 against WBSEDCL and the complainant for recovery of money for installation charge for electric transformer which was payable by the complainants and that suit is still pending. In such circumstances we can’t straight way ruled out the claim of the OPs that the complainants have filed this case after laps of 2 years appx after taking delivery of position of their respective position flat as per agreement only to harass the OPs and for some illegal gain. Now we find that the complainants took physical position of their respective flats as per agreement in the year 2010 some times after execution of their sale deeds by the OPs. They have not filed counter affidavit challenging OPs statement in their W/V as mentioned above. Further more there is no allegation in deficiency in service & unfair trade practice against  the OPs in the letters of their Ld Lawyer  dt. 14/12/10 & 13/05/11 as has been alleged in the petition of complaint. No document has been filed by the complainant to show that they took delivery of their respective flats in in-complete condition and some construction works yet to be done as per agreement and they requested to the OPs to complete the allege incomplete works. There is no clause in the agreement and in the sale deeds of the complainant that the OPs shall be under the legal obligation to render service to the flat owners here the complaints after delivery of the flats to the respective owners to their satisfaction. So, the terms of agreement & the sale deeds of the complaint were binding upon the OPs till delivery of the physical position of their flats to the owners / complainants complainant to their full satisfaction and not after that.

In this view the matter we find sufficient reasons to hold that the complainants are not the consumers of the OPs after OPs execution of sale deeds in their favour in terms of agreement and after taking over physical position of their flats by the complainants to their full satisfaction from the OPs in the year 2010. So, this case is not maintainable. Further more the complainants have hopeless failed to prove their allegation of deficiency in service and unfair trade practice against the OPs. Therefore the complainant are not entitled to any relief in this case.

All points are disposed off.

In the result the case fails.       

Hence, it is

Ordered

That the case / application is dismissed on contest but in the circumstances no order of cost is passed.

Let as plain copy of this order be supplied to the parties free of cost forthwith in terms of the provision of Rule 5(10) of West Bengal Consumer Protection Rule 1987.