The instant case ie case No. 78/2015 was instituted on the basis of a petition of complainant filed by one Amitava Chatterjee and others U/s 12 of Consumer Protection Act, 1986. During the pendency of the case, the petitioner No.1 Amitava Chatterjee died and his all legal heirs were substituted as petitioners /complainants.
The fact of the case is revealed from the petition of complaint as well as from the evidence is that the OP-1 has it’s a partnership firm having its office situated at R.K. Mission Road under the Police Station English Bazar Dist. Malda and said partnership is registered under the provision of Partnership Act. The other OPs No. 2 to 5 are the bonafide Partners/ Promoters / Developers of M/S Kiran Enterprise of R.K. Mission Road which is under the jurisdiction of this Forum / Commission.
The schedule property as described in the petition of complaint originally belonged to one Sangita Misra. She executed an article of development agreement dt. 17/01/2011 and executed a Registered Irrevocable General Power of Attorney in favors of OPs on 28/04/2011 vide Regd. Deed No.1 C.D. Vol. No. 15 Pages 634 to 655.
After execution of agreement as well as power of attorney the opposite parties took initation to construct a multistoried building over the schedule property in the name and style “JAGOMAYA APARTMENT”.
During the construction work opposite party/ parties agreed to sale the flats to the petitioners by way of agreement as well receiving advance amount from the intending purchasers by way of cash, draft and cheques. The complainants several times do complete the work within the time. The OPs assured them that work will be completed as early as possible.
There after the OP gave a proposal to the complainants /petitioners for payment of balance amount and the registration shall be made. The OPs further assured after registration the OP will complete the remaining construction work as well as essential common service.
After good faith the complainants /petitioners paid the entire amount for purchasing their respective flats.
After execution of deeds the OPs did not complete the construction of the flats and essential services of the apartment like installation of Lift along with arrangement for set up Fire service, Boundary wall etc.
On 08/08/2014 on a meeting with the petitioners the OPs gave a written under taken that the OPs will complete the work of essential service within two / three months from 08/08/2014. But till now it has not been completed.
Finding no other alternative the petitioners has come to this forum to fulfill their demands for completing the essential service as mention in the petition of complainants.
The case has been contested by the OPs by filing W.V. by OP No. 1,2 &4 and OP No.3 filed separately W.V.
In the written version filed by OP-1,2,&4 denied all the material allegations as leveled against them contending inter alia that the instant case is not maintainable in law, the case is barred by law of limitation and the instance case is not covered under the provision of Consumer Protection Act, 1986. This Forum has got no pecuniary jurisdiction to try the case and the case is bad for mis-joinder and non-joinder of parties and the case is also barred by the principle of estoppels waiver and a acquiescence. The OP also denied the correctness of the deeds executed by the OPs in favor Of complainants/ petitioners.
The definite defence case is that the complainant is not a consumer under the provision of Consumer Protection Act. The complainant/ complainants is/are not at all aggrieved in any manner rather the OPs are aggrieved by the Act. of complainants. The deed in question is not enforceable by Law as such no right or interest has been accrued in favor of the complainant. The further defence Case is that in order to squeeze money from the OPs such false case has filed in order harass the OPs. There is no deficiency in service on the part of the OPs.
The complainants have not paid the actual dues whatever agreed at the time of negotiation for which they ie the complainants are not entitled to get any relief considering such the case is liable to be dismissed with costs against those OPs.
The OP No.3 Ramanath Jha stated almost the same fact in the W.V. claiming dismissal of the case by stating further that this OP ie OP No.3 has love by his full uncle Pratip Kumar Jha as like as his father and upon such love and faith the OP No.3 signed the agreement and sale deed without getting any money.
The further case of OP No.3 is that the complainants forcibly entered into their respective flats before the completetion of flats.
Considering such fact the OP No.3 has prayed for dismissal of the case.
On perusal of the record it is found that on 21/08/2017 the OP No.3 filed his examination but the same has not tendered before the forum
During trial the petitioner No.1 Joyram Das has examined as P.W.-1 and he has crossed by the OPs separately by OP No.1,2,4 and OP No.-3 and no other witness was examined on behalf of petition. On the other witness has examined on behalf of Petitioner on 21/08/2017.
On 17/05/2023 the OP No.2 filed examination in chief which has tendered (as OPW-1), thereafter he was cross examined in the form of questionnaires. No other witness was examined on behalf of OP.
During trial the complainants /petitioners marked and proved the documents as exhibits 1to 21 as per exhibit list.
No document has been exhibited on the part of OPs No. 1,2,&4 and OP-3.
Now for determination:- Whether the complainant are entitled to get any relief as prayed for or not ?
Decision with reason:-
At the time of argument the Ld. Lawyer of the OPs argued that the complainants are not the consumer under the definition of Consumer Protection Act. So the instant case is not maintainable in this Forum/Commission.
On the other hand the lawyer of the complainants argued that when there is a matter of financial transaction and question of service is involved, this Forum has got the jurisdiction to try the matter as the complainants are the consumers.
This Forum is in the same view of the argument as advanced by the Ld. Lawyer of the complainants that the complainants are the consumer as they purchased the flats on payment of consideration money and question of essential service for living in the flats are involved. According to section 2(1)(d) a , the complainants became consumers and this Forum has got the jurisdiction to try the case.
The Ld. Lawyer of the OPs argued that several Civil Suits are pending between the parties, so they can get relief from those courts not from this forum.
But according to section (3) of Consumer Protection Act, 1986, the provision of Consumer Protection Act shall be not in derogation of the provision of any law for the time being in force.
So pendency of civil suits or any other suits claiming any right over the suit property between the parties to the case will have no effect under the provision of section (3) of the Consumer Protection act, 1986.
There is no dispute that the property was sold by the OP/OPs and they got the possession. Now they cannot deny such fact by execution of deeds after taking consideration money from the complainants/petitioners.
It is has been well established from the Ld. Commissioners Report that the complainants are living in the flats and lift not as per agreement was installed. The inspection petition was allowed on the basis of a petition filed by the OPs. So they cannot deviate from their own deeds or work.
Next point is the W.V. it has been stated that this forum has got no pecuniary jurisdiction to try the case.
For the instant case the case is for whether the OPs provided the essential services as per article of agreement dt. 11/10/2012 executed by the OPs?
Perused the articles of agreement on perusal of agreement between the parties it is revealed that one water treatment plant for entire building by any standard quality, one generator having capacity of 30 K.V. of Kirloskar Company, one lift of OTIS Company and other facilities will be done by OPs. But nothing was done except one lift of another company invocation of the agreement.
In the third schedule of the deed it is has been mention categorical the common area facilities. Now the OP can not deviate from it. Completely it is a deficiency of essential service caused due to laches of OPs for which the complainants can not suffer.
In the written argument the OPs No. 1,2&4 have stated who sues will have to succeed his own not over the weakness over the defense case. There is no dispute as to the principle. For the instant case the complainants have the documents (sale deed) by which it is found that the complainants became owners and also found the deficiency of service as to the points as mentioned the deeds as well as Commissioners Report.
One legal point has been mentioned in the written argument by the OPs through his Ld. Lawyer that the present case is covered under the provision RERA Act.
The Act was enacted by the parliament in the year 2016. Whereas the deeds were executed in the year 2013 and in the year 2013 the complainant/petitions got the possession. So the Act RERA has no application for the instant.
If for the argument we hold, the complainants were not given possession as the construction was not completed, did the OP/OPs applied for registration of the project to the authority under RERA Act? Nothing has come to the notice to the forum by OPs. So the argument raised by the Ld. Lawyer of OPs that the instant case is covered by RERA Act, 2016 is not maintainable.
So the complainants have been able to prove their case against the OPs as regard to deficiency of service under the provision Consumer Protection Act, 1986.
Hence order that:
the case be and the same is allowed on contest with cost. The complainants get an order for rendering the common essential services as mentioned by the OPs within three (3) months from the date of order failing which the complainants will have the liberty to execute the order as per provision.
The common essential services as follows:-
- For installation of fire service.
- Generator as per deed of the same company as mentioned in the deed of new condition (not any second hand).
- Boundary wall, roof tiles.
- Electrification and colour wash grille paint.
If the OPs fail to do so as ordered within three (3) months from the date of order, the complainants will have the liberty to execute the order by leving a sum of Rs. 7,00,000/- ( seven lakhs) with interest from the date of filing of the case at rate of 9% (nine percent) per annum over the amount of Rs.7,00,000/- (seven lakhs)
The OPs are further directed to replace the lift, by placing a new lift of OTIS Company having 6 persons capacity and it has to be done within three months from the date of order failing which the complainants will pay for recovery of the amount for purchasing OTIS lift having capacity of six (6) persons.
If the OPs replace the lift, OPs will take back the old lift at his own cost and carrying.
The Complainant gets of Rs. 20,000/- as litigation cost and Rs. 25,000/- for mental agony and harassment.
The OP/OPs is /are jointly and severally liable to pay the money.
Let a copy of the judgment be given the parties free of cost on application.
