FINAL ORDER/JUDGMENT
Presented by:-
Minakshi Chakraborty, Presiding Member.
Brief facts of the case: This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainants stating that the Opposite Party No. 2 & 3are the absolute owners of the “A “schedule mentioned property andfor development of their property entered into a development agreement with the directors of the Opposite Party no. 1 on 16/08/2011 for monetary gain and the Opposite party no. 2 & 3 ordinarily resides within the jurisdiction of the Ld. Commission.
The complainants also state that the Opposite Party no. 1 along with the Opposite Party no. 2 & 3 obtained sanctioned plan from the Hooghly Chinsurah Municipality vide no. B/442(11-12)dated 02/04/2012 and after obtaining sanctioned plan the Opposite party no. constructed a G + 4 multistoried building named GSR Apartment consisting of residential flats, shops, garages etc. over the “A “ schedule property.
The complainants also state that they approached the directors of the Opposite Party no. 1 for purchase of a residential flat no. 403 situated at 4th floor specifically mentioned in the Schedule “C“) of the multistoried building to be raised upon the Schedule “A “property and accordingly separate agreement for sale was executed by and between the complainants and the Opposite Parties and the total consideration money for the flat was fixed at Rs.10,00,000/- only.
The complainants also state that the Opposite Parties will hand over the flat to the complainants along with other facilities within a specific period mentioned in their agreement and the Opposite parties executed Memorandum of Agreement / Agreement for Sale with the complainants in respect of their flat under construction and took advance as earnest money.
The complainants also state that in the meantime the Opposite Parties delivered the incomplete flat to the complainants with an assurance that the Opposite Parties will complete the unfinished works and will affect the registration of the sale deeds of the respective buyers/complainants and the complainants paid the entire consideration money in the hands of the directors of the Opposite Party no. 1 against proper receipts but the Opposite partied did not care to complete the unfinished work in spite of the repeated requests by the complainants and others and it were the complainant and other flatsowners who had had to bear huge expenses to make their flat respective flat habitable and moreover the Opposite parties are least interested to execute the deed of sale in favour of the complainants in spite of receiving the entire consideration money.
The complainants also state that they noticed during the possession the materials used in their flat were not up to the mark rather of the low quality and they had to incur Rs. 11,000/-for making and installation of collapsible gates and grills from their own pocket for making their flat habitable when the complainants noticed that the opposite parties are very much reluctant.
The complainants also state that the complainants and other flat owners even had to bear the common works for the common places from their own money and they incurred more or less Rs.21,000/- for installation of common gate, grills at the first floor, installation of municipal water line and tap and other maintenance cost to make their flat habitable.
The complainant also state that on 04/11/2015 the directors of the Opposite party no. 1 in presence of the of the Opposite Party no. 2 undertook in writing to the complainants that the developer company will complete the unfinished works of their respective flats as well as of the apartment within a stipulated period but till today the directors of the Opposite party did not made any attempts to install the lifts which are to be constructed by the Opposite party as per the terms and conditions of the agreement with the intending flat owners including the complainants and lastly on the meeting dated 04/11/2015 the directors of the opposite party no. 1 undertook to install the lift within 15/10/2016 but they failed to install the lift within the stipulated period.
The Opposite Party inspite of undertaking in writing on the meeting dated 04/11/2015 also failed to provide parking places and common latrine and drain cover upon the common drain in the ground floor within December, 2015.
The Complainant also state that the opposite parties also failed to make arrangement for installation of electrical transformer for the apartment and Mr. Kunal Ghosh & Smt. Bonani Ghosh, Mrs. Shyamali Mondal &Tushar Kanti Mondal, Rajib Ghosh, Rita Barai, Anima Das, Krishna Mallick had paid Rs. 50,000/- each and Kinkar Chakraborty had paid Rs. 35,000/-for such installation of electrical transformer and others including the complainants assured to pay their respective share as and when require but due to gross negligence and intentional latches of the Opposite Parties. The complainants also state that lastly on 10/07/2016 with other flat owners meet with the Opposite parties and even on that day the opposite parties declined to complete the other construction works and also as per terms and conditions and shows their reluctance for fulfilling their contract.
The complainants also state that the Opposite Parties took consideration money for the common area and for common facilities at the time of execution of their respective agreements but the Opposite Parties did not arranged/ provided it to them as per terms of the contract.
Complainants filed the complaint petition praying direction upon the opposite parties to construct the lift and make it fit for use by the flat owners and install the transformer for electric connection, complete the unfinished works and compensate the complainants in respect of the expenses incurred by them for making the flat and the common portions of the apartment habitable within one month of the passing of order and to execute and register the deed of sale of the flat mentioned in schedule “C” in favour of the complainants within one month after completing the unfinished works as per agreement for sale with the complainants and others alternatively the ld. Forum will execute and register the deed of sale in favour of the complainants by appointing a appropriate person of the ld. forum and to repair the rooftops, backside of the Eastern portion of the building were cracked appeared and change the below graded wooden fixtures and fittings those has been defectively set in apartment within one month of the passing of t order and to give interest from the date of filing till realization at 8% per annum and to pay a sum of Rs. 1,00,000/- for mental agony and physical sufferings and to pay a sum of Rs. 1,00,000/- for deficiency in service and to pay a sum of Rs. 1,00,000/- for unfair trade practice and to pay a sum of Rs. 20,000/- for litigation cost and to give any other relief/ reliefs as deem fit and proper.
Defense Case:-The opposite party No.1 (a) and (b) contested the case by filing written version denying inter-alia all the material allegation as leveled against them and state that within the stipulated time period as mentioned in the memorandum of agreement/ agreement for sale which was executed between the complainant and the opposite parties, handed over the possession and delivered the said residential flat which is complete in all respect with additional civil works which has been proposed by the complainant. The opposite party herein has already paid the entire and full amount to the WBSEDCL for installation of transformer for the said project and the transformer will be installed as per the available time and sole discretionary decision of WBSEDCL and the complainant is provided with adequate electricity power from the existing legal supply of the said project and the opposite parties have several time requested the complainant for registration of sale deed in favour of them but the complainants themselves have not paid any heed to that effect though the opposite party herein is ready for registration of respective sale deed at any point of time, on condition that the complainant will supply a draft copy of a sale deed prior to five days of registration to the opposite parties herein.
The opposite parties have already completed the unfinished work in respect of the common spaces of outside and inside of the said multi-storied building with their personal proper care and the opposite parties herein delivered and handed over the possession of the said flat to the complainants as per the specification of work which is expressly mentioned in the memorandum of agreement/ agreement for sale inhabitable condition. There after taking the possession of the said flat whether the complainants and other flat owners had to bear huge expenses to make their flat more habitable and amenities inside their respective individual flats as per their will and taste and accord is not concerned of the opposite parties herein. The Opposite Parties also state that in the memorandum of agreement/Agreement for Sale which has been executed in between the complainant and the Opposite Parties herein there was no terms and conditions of providing and installation of collapsible gates and grills to the each unit of residential flats of the complainants. In the schedule of the said memorandum of Agreement/ Agreement for sale there was categorically stated and written that the Opposite Party/Developer will provide only wooden flush door for the main door and doors of the bedroom and PVC doors for bathrooms of the each residential flats and those has been provided and installed by the Opposite parties herein at the time delivering the possession of the said individual flat. Whether the complainants have incurred Rs.11,000/- for making and installation of collapsible gates and grills from their own pocket for making their flat more habitable as per their point of view and choice is not concerned of the opposite parties herein.
The complainants and others flat owners not at all bear the cost of common works for the common spaces from their own money and the complainant have not incurred more or less Rs.21,000/- for installation of common gates, grills at the first floor, installation municipal water line and tap as those work has been done and completed from the part of the Opposite party herein. Whether any cost have incurred by the complainants after taking possession for maintenance to make their flat habitable is not concern of the Opposite Parties herein.
The Opposite Party herein as well as the director of the developer company already took effective initiative for installation of lift which is to be constructed by them as per the terms and conditions of the agreement with the intending flat owners including the complainants and the work of installation of lift is running by the lift company and the opposite party herein have already paid the proportionate expenses for that installation work to the lift company as demanded by the lift company and due to some unavoidable reasons and force measure and non availability of the high tension electricity power supply the lift company failed to complete the installation of the lift within 15/01/2022 which was undertaken by the opposite party no. 1 on the meeting dated 04/11/2015 on behalf of the directors of the developer company and though the 90% of the job of installation of the lift has been completed till date.
The Opposite parties also stated that the allegations leveled against the opposite parties herein in the paragraph no. 15 are totally false, fabricated and concocted one. The Opposite party herein have already completed the construction of boundary wall of the said multi-storied building and also does not avoided to do so on different pretext.
The residents as well as the purchasers of the individual flat and garage space of the said multi-stories building who have purchased and paid consideration for parking places have been provided accordingly and the common latrine and drain cover upon the common drain in the ground floor has been completed within December, 2015. Moreover the opposite parties herein have also completed the other works which they had undertaken to be done in the meeting with the flat owners on 4.11.2015.
The opposite parties herein raised the construction work with a very good and standard quality of materials. Moreover the marbles and wooden works done by the opposite party are of very good and standard quality. It is not a fact that cracks appeared on the roof of the building due to use of inferior quality of materials. The flat owners namely, Tushar Kanti Ghosh, Mrs. Shymali Ghosh, gajiv Ghosh, Rita Borai, Anima Das, Krishna Mallick had paid Rs. 50,000/- each and Kinkar Chakraborty has paid Rs. 35,000/- for such installation of electrical transformer and others have assured to pay their respective share as and when required. The opposite party herein already after getting the quotation from WBSEDCL has deposited the entire amount including security money and other costs as per quotation to the said company for installation of electrical transformer for the said multi-storied building. Whereas said Mr. Sitaram Nag is not paid the amount in respect of the installation of transformer. Due to unavailability of transformer machine the WBSEDCL failed to install the same though assured the opposite party to install the same as soon as it will be available to them.
There is no question of miserably failed to fulfill the commitment made from the part of the opposite parties regarding the expiry of the quotation on 14.6.2016 as the commitment has already been fulfilled from the part of the opposite parties as they have performed their duty to deposit and pay the entire costs to the WBSEDCL for installation of electrical transformer for the said multi-stories building. Moreover the opposite parties are not at all very much negligent to render due service to its customers i.e. towards the present complainants and other flat owners. The opposite party herein have rendered all due services to its customer as per the terms and conditions of the memorandum of agreement/ agreement for sale.
The opposite party herein on 10.7.2016 and never declined to complete the other construction work also as per terms and conditions and shows their reluctant for fulfilling their contract to the complainants with other flat owners who meet with them. The opposite party herein have already arranged/ provided the complete as per the terms and conditions of the contract at the time of execution of their respective agreements or which consideration money taken by opposite parties and therefore the opposite parties caused no loss, injury and damages in monetary terms and harassment and mental agony to the complainants. It is the fact the market value of the flat is increasing day by day but no delay took place at the instance of the opposite party in execution of sale deed by the opposite party in favour of the complainants and instead of several approach from the end of the opposite parties the complainants intentionally does not taking any steps and arrangements for registering the sale deed in favour of them. So, the instant complaint case is liable to be dismissed with heavy costs.
The opposite party Nos. 2and 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and state that they did not receive any consideration money from the complainants and the entire consideration money has been received by the director of the opposite party no. 1 against proper receipt. As per the development agreement the director of the opposite party no. 1 is bound to complete the construction work of the multi storied building within the specified time of the development agreement but the opposite party no. 1 did not comply the terms and conditions of the said development agreement as executed between the proprietor/ director of opposite party no. 1 and the answering opposite party nos. 2 and 3. For the above reason, the opposite party nos. 2 and 3 have instituted a Title Suit being no. 10310/2014 before the ld. First Court of Civil Judge (Junior Division) Hooghly against the proprietor/ director of opposite party no. 1. There was no agreement exists between the complainant and the answering opposite party nos. 2 and 3. Complainants have not incurred any expenses to make their flat habitable and the complainants had not yet produced any scrap of document before the Forum regarding the expenses incurred by them. According to law the complainants did not entitled to get any relief against the present opposite parties as the present opposite parties did not construct the multi storied building and according to development agreement the proprietor/ director of opposite party no. 1are bound to comply the same within specific time. So, the present application of the complainants will be dismissed with cost.
Evidence on record
The complainants filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
The O.P. Nos. 2 and 3 have filed a joint evidence on affidavit which reiterates the averments of the written version.
Argument highlighted by the ld. Lawyers of the parties
Complainants and opposite party nos. 2 and 3 have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.
Heard argument of both sides at length. In course of argument ld. Lawyers of both sides have given emphasis on evidence and documents produced by the parties.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainants are the consumers?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get any relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are Consumers as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.
Issue no.2:
Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
The specific case of the petitioners is that the opposite parties delivered incomplete flat to them with the assurance that they will complete the unfinished works and will cause the registration of the sale deed for the said flat. The grievances of the complainants are that even in spite of receiving several communications, the defects of the said flat have not been rectified till date.
Admittedly, both the complainants have univocally state about payment of the entire consideration money for the flat and hence the complainants are entitled to get the said flat duly registered in their favour and also to get the unfinished works of the flat be completed within due time.
The commission has made careful scrutiny of the written version of the parties together with their respective evidence on affidavits as well as the decision of the National Commission reported in IV (2019) CPJ19 (NC).
The commission has given careful consideration on the report of Local inspection as made considering the prayer of the complainants. The report specifically states that electrical transformer has already been installed and the lift has also been installed with all machinery and in working condition. It further appears that some hair-cracks were traced in some portions of the wall together with inside of some balcony of the apartment.
In the light of the aforesaid facts and circumstances, the decision of the National Commission reported in IV (2019) CPJ19 (NC) has been looked into.
After careful scrutiny of the written version of the parties together with their respective evidence on affidavits and all other papers and documents on record it appears that complainants are entitled to get the said flat duly registered in their favour and also to get the unfinished works of the flat like hair-cracks traced in some portions of the wall together with inside balcony wall of the apartment.
In the result it is accordingly
ordered
that the complaint case being no. 126 of 2016 be and the same is allowed in part on contest with cost.
The opposite Parties do execute and register the deed of sale for the flat within 45 days from date, failing which the commission will arrange for registration for the same and in both the circumstances the Opposite Parties shall be liable to bear all the expenses in respect of execution and registration work and to pay Rs. 15,000/- as litigation cost.
The opposite Parties do arrange for completion of the unfinished works like hair-cracks in the portions of the wall together with inside balcony wall of the flat within 30 days from date, failing which the complainants will arrange for completion of the said unfinished works of the flat and the Opposite Parties shall be liable to bear all the expenses for the same.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website www.confonet.nic.in.
