MR. AYAN SINHA MEMBER This is a complaint under Section 35 of the CP Act, 2019 made by Maloy Das alleging deficiency in service against the OPs i.e. (OP No.1 to 7) and accordingly prays for a direction upon the OPs to repair the incomplete work along with roof leakage & ground floor and erection of main gate, to transfer the electric metre in his favour and to paint the unpainted areas of the flat in dispute, for appointing Engineer Commissioner, to pay compensation of Rs.5,00,000/- along with litigation cost of Rs.30,000/-. FACTS IN BRIEF The Complainant is an intending purchaser who purchased a flat no.3A on 2nd floor with super built up area of 483 sq. ft. in “Kalyani City Apartment” of 67, Priyanath Banerjee Road, Shri Durga Pally, North 24 Pgs from the OPs, wherein OP No.1 is a development firm & OP No.2 being the proprietor of OP No.1 and OP No.3 to 7 are the land-owners. As stated, the OPs had already handed over the possession to the complainant on 24.09.2018 and registered deed of conveyance had already been executed. As alleged by the Complainant in his complaint petition, the same flat was incomplete and not inhabitable condition. The Complainant and his family felt difficulties to live in due to the below mentioned incomplete work: - - The boundary walls are not constructed yet for which the security of life and property may be hampered.
- Main gate and the common passage of the ground floor not yet constructed.
- Incomplete painting of the whole flat.
- Personal electric metre not yet transferred in favour of the Complainant in spite of payment of Rs.7,000/-.
- Leakage of roof due to rain water.
Thereafter, the Complainant sent legal notice to the OPs on 13.08.2020 to which OP No.1 & 2 in their reply denied all allegations made against them. As stated by the Complainant, OPs verbally assured him that they will fulfill the project, but till date the same is neglected by the OPs and the incomplete works, as alleged, have not yet been completed. Thus, the complainant being aggrieved and suffered worstly by the OPs, the instant complaint is filed. Notices was served upon all the OPs. OP No.2 appeared and filed W/V stating, inter alia, denying all the allegations lodged against them. In their W/V, they have stated that the entire construction work of the flat had been completed as per the contract and the possession was already handed over to the Complainant in 2018. On the contrary, they have stated that the Complainant was requested to deposit the arrear electricity bill amount of Rs.42,000/- to which the complainant deliberately neglected the same and as such separate electricity metre was not brought in favour of the Complainant. So, OP No.1 & 2 prayed for dismissal of the instant case with cost. OP No.3, 4, 5, 6 & 7 did not contest this case by filing W/V on their behalf and so the case proceeded ex parte against them vide Order dated 24.05.2022. Complainant filed Evidence-in-Chief to which OP No.1 & 2 did not file any questionnaire, nor any evidence was also filed on behalf of OP no.1 & 2. Finally, the matter was fixed for an Argument. But OP No.1 & 2 remained absent during the course of final hearing. Brief Notes of Argument was also filed by the Complainant. Complainant had also filed copies of Agreement for sale dated 04.01.2018 and Deed of Conveyance in support of his contention. POINTS FOR DETERMINATION - Whether the complainant is a “Consumer” under the purview of CP Act, 2019?
- Whether there was any deficiency in service on the part of the OPs as alleged?
- Whether the complainant is entitled to the relief(s) as prayed for?
DECISION WITH REASONS We have carefully perused the documents filed by the parties. Point No.(i): - It is an admitted fact that the Complainant had purchased the scheduled flat and accordingly a deed of conveyance was executed on 24.09.2018 between the Complainant and the OPs and the Complainant is in possession of the said flat also. So, there is no doubt that the Complainant is a ‘Consumer’ under the purview of CP Act, 2019. Point No.(ii) & (iii): - Both the points are taken up together for comprehensive discussion and repetition of facts. On perusal of the prayer portion, Complainant has prayed for a direction to complete the project as mentioned in point no.1 to 5 wherein during the course of final hearing, Ld. Counsel for the Complainant had emphasized on point no.2 and point no.3 that is immediate transfer the electric metre in favour of his client and repair of leakage of roof respectively. On further perusal of the copy of deed of conveyance it is mentioned that the purchaser was entitled to have electric metre installation. The purchaser was also entitled to the common amenities and facilities. From the copy of the Legal Notice dated 23.09.2022 issued by the Developer to the Complainant where it is noticed, OP Developer has stated that due to the non-payment of Rs.42,000/- on behalf of the landowner, to the concerned Electricity Department, the electric metre could not be brought in favour of the Complainant but in the written version of OP No.1 & 2, they have stated that the Complainant had not paid the said amount which is found to be contradictory. We failed to understand that if the Developer had entered into certain agreement with the landowner and for this privity of contract, Complainant should not be harassed by taking this plea that they failed to provide electric metreto the Complainant as the landowner had not paid the arrear. On further scrutiny of the (Annexure P – 2)filed by the Complainant, we found that the Complainant has also paid extra Rs.7,000/- on 11.12.2019 through online to OP No.2, who is the proprietor of OP No.1 in the instant case, for bringing the electric metre in his favour. But, there is no averment of OP No.1 & 2 in their written version, regarding this. Now, coming back to the contention of roof leakage, there is no averment or any documents annexed from the parties that how many floors were constructed in the scheduled apartment. The floor/location of the Complainant’s flat has not been clearly mentioned neither in the evidence of the Complainant nor in the evidence of the OPs. However, from the statement of OP No.1 & 2 as made in Para 9 (f) of their written statement we could assume that the Complainant had been allotted top floor of that premises. We found from the petition of complaint that he prayed for appointing one Engineer Commissioner for inspection of the actual position of his flat along with the building. So far as the allegation of leakage of rain water from the roof in his flat and consequent damage is concerned, we found the Complainant could not produce a single cogent document in support of his prayer. OP No.1 & 2 denied this allegation of the Complainant. What we find Complainant could file only two photographs of the building which frankly speaking do not reveal any apparent damage of the roof. From this also it cannot be ascertained that during rainy seasons water, seeps into his flat. Not a single photograph of the ceiling of his flat showing seeping of rain water into his flat was produced by him. Admittedly the premises developed by the OP No.1 & 2 is a newly built one and the Complainant got the possession of his flat in the year 2018. This apart, Complainant has not alleged anything in details as to this allegation. There is also no allegation that the other occupants of the said premises also raised complaint about leakage of rain water from the roof. Opposite Parties produced in this connection one letter issued by the North Dum Dum Municipality on 01.12.2018 addressed to one Tulsi Das and four (4) others, who are found to be the land owners of the said newly built premises showing that the said building was inspected with reference to the provisions of the Building Rules under the West Bengal Municipality Act, 1993 and they also certified the said building to be fit for occupation. However, from the two photographs of the roof as produced by the Complainant, it is found that one portion of the entire roof of the premises is found to be cemented well. The other portion of the roof seems to be the roof of the Complainant’s flat as it has been specifically noted on the photographs “Complainant’s roof top is not cemented yet”. From this, we think in the circumstances, the Complainant wanted to get his roof top cemented like the one that exists on the other portion. So, we are not convinced on the materials produced before us for passing any order of inspection by an Engineer Commissioner in respect of the said newly built building. Since, the other prayers of the Complainant like repair works of ground floor, erect main gate and paint the unpainted areas of the whole building in question were not emphasized by the Ld. Counsel for the Complainant and moreover these are falling under the common areas and amenities of the flat owners besides the Complainant of this apartment, who have not been made party to this instant case, we are not going to pass any order on these prayers. Having thus discussed, we opined that it would be appropriate if a direction can be given upon the OPs to bring and arrange for installation of electric metre from the concerned authority and do cementing/ other necessary work onthe roof top of the flat of the Complainant thereby preventing the possibility of any leakage of rain water through the roof . Besides this, Complainant is also to get Rs.10,000/- as compensation and Rs.3,000/- towards cost of litigation. With this all the Points are answered accordingly. Hence it is, ORDERED That the instant complaint be and the same is being allowed on contest against OP No.1 & 2 and ex parte against OP No.3 to 7. OPs are directed to bring and arrange for installation of the electric metre in favour of the Complainant to his flat from the concerned authority. OPs are also directed to pay Rs.10,000/- (Rupees Ten Thousand Only) along with cost of litigation Rs.3,000/- (Rupees Three Thousand Only). OPs are jointly and severally liable to comply with the above order. This apart, OP No.1 & 2 are also directed to do cementing / other necessary work onthe roof top of the flat of the Complainant thereby preventing the possibility of any leakage of rain water through the roof. The aforesaid order to be complied with, within 45 days from the date of this Order failing which the awarded amount shall carry interest @9% p.a. If the Order is not complied with by the OPs within the aforesaid period, the Complainant is at liberty to proceed in accordance with law. Dictated and corrected by me Member | 
