Date of Filing: 10.12.2019. Date of Disposal: 22.11.2022.
Complainant :1. Anup Sutradhar, S/O Lt. Satyanarayan Sutradhar,
2. Smt. Baby Sutradhar, W/O Anup Sutradhar,
Both resident of Vill. Nischinta , Uttarpara, P.O. Nischinta, P.S. Asansol, Dist. Paschim Bardhaman, Pin. 713373, Presently-Flat No. $A, 4th Floor, Shree H.L. Apartment, Asansol, P.S. Asansol, P.O. B.B. College, Dist. Paschim Bardhaman, Pin -713303.
-VERSUS -
Opposite Party : M/S S.T. Builders, Rep. by its Proprietor, Tagore Road, Ushagram, Asansol, P.S. Asansol (South), Dist. Paschim Barddhaman, Pin-713303.
Present : Mohammad Muizzuddeen -Hon’ble President.
: Mrs. Lipika Ghosh - Hon’ble Member.
: Mr. Atanu Kr. Dutta. - Hon’ble Member.
Appeared for the Complainant : Mr. Suvro Chakraborty Ld. Advocate.
Appeared for the Opposite Party : Mr. Ashis Mukherjee Ld. Advocate.
FINAL ORDER
On 10.12.2019 the complainants have filed a complaint against the Opposite Party (O.P) u/S 12 of the Consumer Protect ion Act, 1986.
The case of the complainants, in brief, is that in the year 2017 the complainants met with OP for purchasing a residential flat along with car parking space and the OP showed him the catalogue containing description and images of flat and garage . Thereafter, one agreement for sale was executed in between them in respect of flat being No. 4A on the 4th floor of Shree H.L. Apartment, situated at P.S. Asansol (South), Mouza Asansol, J.L. No. 35, R.S. Plot No. 685 , corresponding to Khatian No. 1185, measuring 1326 Sq.ft. and also in respect of one Four Wheeler Car Parking Space of 135 Sq.ft.at the ground floor of the said apartment and the consideration money was of Rs.31,22,400/- whereas the consideration amount of the Four Wheeler Parking Space was Rs. 2,00,000/- A Sale Deed being No. 6025 was executed on 24.07.2018 in between them and the possession of the said flat was handed over to them. On receiving the possession of the said flat, they started to live there and started to use the Four Wheeler Parking Space. Subsequently, all the flats of the Shree H.L Apartment were sold by the OP to several purchasers and also allotted Four Wheeler Car Parking Space to them. But from the middle of January, 2019 another purchaser of the said flat suddenly started to keep their car at the Four Wheeler Parking Space of the complaints and on asking , they stated that the OP allotted them the said Four Wheeler Car Parking Space by receiving consideration amount. The complainants again met with the OP and asked about the dispute, who assured that he will make proper arrangement shortly. The OP also asked them to keep their car at the passage of ingress and egress of the apartment for some days and after making an arrangement they can keep their vehicle in their allotted portion. As per assurance of the OP, he started to keep the vehicle in the said place of ingress and egress of the apartment but several complications arose. The complainants on several times requested the OP to solve the problem as per agreement and Sale Deed but the OP did not take any steps. The complainants seek help of the Consumer Affairs Department, W.B, at Durgapur for solving the dispute but no result. From the conduct of the OP, it is clear that the OP committed unfair trade practice and deficiency in service.
The cause of action arose on 20.01.2019 .
Under the above facts and circumstances, the complainants prayed for directing the OP to provide specific space of 135 Sq.ft. for Four Wheeler Car Parking Space to the complainants at the ground floor of the apartment as per the agreement of the building plan, mentioned in the Sale Deed along with a direction to pay a sum of Rs. 2, 00,000/- to the complainants for mental pain, agony and harassment and litigation cost of Rs.20, 000/-.
OP appeared and filed Written Version in this case denying all the material allegations contending inter alia that there is no cause of action, that the case is barred by law of limitation and that the case is bad for non-joinder and mis-joinder of necessary parties and prayed for dismissal of the case.
Decision with Reasons.
In order to prove the case, the complainant No.1 Anup Sutradhar has filed the evidence-on-affidavit. Complainants also filed Xerox copies of documents. They also filed Written Notes of Argument.
The OP filed questionnaire to the evidence of the complaint and the complainants has filed reply to the said questionnaire. But the OP did not file any evidence-on-affidavit; even the OP did not file any Written Notes of Argument or did oral argument.
On perusal of the case record including the documents, it appears that the case has been filed on 10.12.2019 and cause of action was arisen on 20.01.2019 i.e. the case has been filed within the period of limitation. The case is not barred by law of limitation. The complainants have sought for relief only against the OP. Accordingly; the case is not barred by non-joinder and mis-joinder of necessary parties. That apart mere filing W/V cannot prove the case of the OP. It is the OP who has to prove his case by adducing evidence . . OP did not adduce any evidence to substantiate his case as depicted in the Written Version.
On the other hand, from the Sale Deed, it appears that the complainants purchased the flat in question along with Four Wheeler Car Parking Space measuring an area of 135 Sq. ft. in the ground floor of the said apartment and the consideration money of the flat along with car parking space has been paid by the complainants to the OP and the OP handed over the flat with the car parking space and the complainants used to reside in the flat in question and car parking space was being used by them. But subsequently, the car parking space was allotted to other person illegally and after so many requests placed by the complainants to the OP; he did not take any step to solve the said problem. According to the Sale Deed, the complainants are entitled to get Four Wheeler Car Parking Space as mentioned in the Sale Deed and the OP is bound to give the same to the complainants but the OP has failed to solve the above problem by giving the said car parking space to the complainants. In this way, the OP committed negligent and deficiency in service.
Under the above facts and circumstance, we are of opinion that the complainants have been able to prove their case to the hilt against the OP and the OP has committed negligence and deficiency in service without providing the Four Wheeler Car Parking Space measuring 135 Sq. ft.
As a result, the case succeeds.
Hence, it is
ORDERED
That the Consumer Complaint No. 181/2019 be and the same is hereby allowed on contest against the OP but without any costs.
The complainants are entitled to get Four Wheeler Car Parking Space measuring 135 Sq.ft. at the ground floor of the apartment namely Shree H.L Apartment as per the argument and the Sale Deed.
OP is directed to provide Four Wheeler Car Parking Space measuring 135 Sq.ft. to the complainants at the ground floor of the apartment namely Shree H.L. Apartment and he is also directed to pay a sum of Rs.30, 000/- (Thirty Thousand only) as compensation to the complainants for mental pain, agony and harassment and litigation cost of Rs.5, 000/- (Five Thousand only).
The OP is directed to comply with the order as mentioned above within 45 days from the date of receipt of the order.
Let a copy of this order be given to the parties on free of cost.
Dictated & corrected by me.
President
D.C.D.R.C , Purba Bardhaman.
Member Member President
D.C.D.R.C , Purba Bardhaman. D.C.D.R.C, Purba Bardhaman. D.C.D.R.C , Purba Bardhaman.
