Smt. Sangita Paul, Member
This is a case filed by Sri Gour Chand Pramanik S/o. Bishnupada Pramanik of Village & P.O. – Margram, P.S. – Khargram, Dist. – Murshidabad, Pin – 742 174 at present New Park P.O., P.O. & P.S. – Sonarpur, Dist. – 24 Pgs (South), Kolkata-700 150 against M/S. Dream Heavens Constructions, Sri Subrata Chakraborty, Smt. Banani Chakraborty, Smt. Sikha Chattopadhyay and Sri Swapan Kumar Chattopadhyay with a prayer for directing the OPs to complete the boundary wall of the Banabehar Apartment and to repair the water pipe line of the said Apartment forthwith along with C.C., to pay a sum of Rs.75,000/- to the complainant as repairing cost of the said roof of the said Apartment to pay a sum of Rs.3,50,000/- as compensation due to mental agony, pain and anxiety suffered by the complainant and to further pay a sum of Rs.50,000/- as litigation cost, to pay a sum of Rs.1,00,000/- for demurrage.
OP No.1 is M/S. Dream Heavens Constructions, a partnership firm represented by its partner Swapan Kumar Chattopadhyay having its office at Kamrabad Carshed Road, P.O. & P.S. – Sonarpur, Dist. – 24 Pgs (South), Kolkata-700 150.
OP No.2 is Sri Subrata Chakraborty, S/o. Late Ranjit Kumar Chakraborty.
OP No.3 is Smt. Banani Chakraborty, W/o. Sri Subrata Chakraborty. The address is Kamrabad Carshed Road, P.O. & P.S. – Sonarpur, Dist. – 24 Pgs (South), Kolkata-700 150.
OP No.4 is Smt. Sikha Chattopadhyay, W/O. Sri Swapan Kumar Chattopadhyay. The address is same as Swapan Kumar Chattopadhyay, OP No.5.
OP No.5 is Sri Swapan Kumar Chattopadhyay, S/o. Late Kishori Mohan Chattopadhyay. The address is 1/13, Sil Lane, Kolkata-700 015.
The complainant, by filing the case states that one Banobehari Majumdar was the original owner of the land measuring as 4 cottah 08 chittaks situated at Mouza Sonarpur, J.L. No.39, R.S. Khatian No.1007 under R.S. Dag No.206 of Ward No.13, Holding no.402 Paschim Das Para.
A Development Agreement was executed between the said Banbehari Majumdar and M/S Dream Heaven Construction, represented by its partners, the OPs 2 to 5 on 09.08.2014 for the construction of multi-storied building on the aforesaid land. The said agreement was registered in the year 2014.
The OPs submitted building plan for construction of multi-storied building on the aforesaid land before Rajpur Sonarpur Municipality and the same was sanctioned on 17.08.2016.
The Developer completed the Multi-storied building, but did not complete the boundary wall. The complainant states that the roof of Banabihar Apartment is badly damaged, because the sloping level of the said roof has not been properly constructed. The complainant requested the OPs to remove the defects. The internal water supply pipe is badly damaged. The complainant repaired the damaged roof and it cost Rs.75,000/-.
The cause of action arose on 20.08.2020 and it is still continuing. Hence the complainant prays for directing the OPs to complete the boundary wall of Banabehar Apartment and to repair the water pipe line of the said apartment along with C.C., to pay a sum of Rs.75,000/- to the complainant as repairing cost of the said roof, to pay a sum of Rs.3,50,000/- as compensation due to mental agony, pain and anxiety suffered by the complainant and to pay a sum of Rs.50,000/- as litigation cost to pay a sum of Rs.1,00,000/- for demurrage.
The OP No.1 , the developer in the written version states that the petition of complainant is not maintainable both in law and in fact. That the instant case is bad for mis-joinder and non-joinder of necessary parties. The petition is barred by the principles of estoppels, waiver and acquiescence.
The complainant is neither consumer, nor have hired any services from the OP. As such the petition is liable to be rejected. OP No.1 states that he has no deficiency in rendering proper service. The instant flat has been registered and the possession certificate was given on 04.08.2016. The complainant received the completion certificate on 06.08.2016. After a lapse of several years, the complainant raised some fishy issues. Now the existing Association would look after those issues. So the developer OP cannot be blamed. After elapse of more than 5-years of getting the completion certificate, the developer is not responsible for completing the work of the flat in question. The W/V of OP No.5 is also adopted by the OPs 1, 2 3 and 4.
That the instant case was filed on 09.03.2021. That the case was admitted on 30.03.2021. On 22.07.2021 Op appeared and filed power and W/V. On 28.12.2021 OPs file Evidence on Affidavit and questionnaire. On 07.02.2022 the complainant was directed to show cause as to why the case shall not be dismissed for default. On 17.03.2022 complainant files show cause. The show cause appears to be reasonable and accepted. On 22.04.2022 the complainant files reply. On 29.06.2022, the complainant files questionnaire. On 09.09.2022, OPs file reply. On 23.11.2022 OPs filed BNA. On 29.11.2022 argument of the OP was heard. On 10.01.2023 argument of the OP was again heard. Accordingly, we proceeded for giving judgement.
Points for consideration :-
- Is the complainant, a consumer?
- Are the OPs guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decision with reasons :-
On perusal of records and documents, it appears that the complainant entered into an agreement with M/S Dream Heaven Construction on 09.08.2014. The building plan was sanctioned before Rajpur Sonarpur Municipality on 17.08.2016. Complainant purchased the flat from the OPs developer. The apartment has been completed since long and the complainant got possession certificate on 06.08.2016. The completion certificate was sanctioned by Rajpur Sonarpur Municipality on 17.08.2016 and the complainant received the same on 12.12.2016 by putting her signature on the Developer’s pad. Six years have passed. The complainant ceased to be a consumer as per the findings of the National Commission C Case No.178 of 2015 dated 02.02.2016.
The complainant purchased the flat from M/S. Dream Heavens Constructions and received the possession certificate on 06.08.2016. The flat was duly registered. The complainant bought a flat more or less 731 Sq. ft. consisting of 2 bedrooms, one Living cum Dinning, 1 kitchen, 2 toilets W.C. and a balcony on the South East side of the 2nd floor of the Banabehar Apartment. The complainant got the completion certificate issued by Rajpur Sonarpur Municipality on 17.08.2016. The completion certificate was issued in the name of Land owner viz. Sri Dipak Majumder. The complainant received the said certificate on 24.11.2016. So it appears unnatural that after getting completion certificate, the complainant again demands C.C. The completion certificate is received after completion of all the pending work. All the statements are sworn by affidavit. The complainant cannot make such statements. No deficiency in service and unfair trade practice are adopted by the OPs. Hence, the 2nd point is decided against the complainant.
03.The completion certificate was issued by the Rajpur Sonarpur Municipality. The said certificate issued by the concerned authority after verification and inspection of the construction. It is also seen that the construction has been done according to the sanctioned building plan. The completion certificate is got after completion of all the developmental work. The issues of the complainant are not at all tenable. Hence the complainant is not entitled to get any ancillary relief. So, the 3rd point is also decided in favour of the O.Ps. In the result, the complaint case fails.
Hence, it is,
ORDERED
That the complaint case be and the same is hereby dismissed on contest against all the OPs.
There is no order as to cost.
Let a copy of the order be supplied free of cost to the parties concerned.
The final order will be available in the following website viz.www.confonet.nic.in.
Dictated and corrected by me.
Sangita Paul
Member
