DATE OF DISPOSAL: 06.02.2020.

Sri Purna Chandra Tripathy, Member:    

               The complainant   Sasanka Sekhar Patro has filed this consumer complaint  Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties    ( in short the O.Ps) and for redressal of her   grievance before this Forum.

               2. Briefly stated the case of the complainant is that he is the owner in possession of Flat No. 406 of the 3^rd Floor of the Vaishno Residency, situated at Hillpatna 3rd line, Gosaninuagam, Bramhapur bearing plot Nos. 1257/3945, 1308/3946 and 1308/1820/3947 of Khata No.1030/1792 of Mouza Baidyanathpur in Ward No.24 of Bramhapur Municipal Corporation. The O.P.No.1 is the builder known as a promoter/builder being represented by its Managing partners O.P.No.2 & 3. The O.P.No.2 & 3 are the owner of the property over which Vaishno Residency. The O.P.No.1 entered into the agreement with O.P.No.2 & 3 for the purpose of construction of a residential building in pursuance to the approved plan and permission of the competent authority.  It is also agreed to procure the intending purchasers for the sale of flats and parking space etc. comprising in the building and the intending purchasers would pay the cost of the flats on payment of the price to the builders and on payment of total consideration of Rs.14,12,500/-. The purchaser would get the flat. The builders/promoters have to make construction of the building known as a Vaishno Residency. The builders must obtain the permission from the competent authority and approved plan of B.D.A. and should not make any deviation from the sanction plans. Accordingly the complainant had purchased the said property referred to above the O.P.No.1 who is the builder should have to complete the construction within a period of 18 months from the date of agreement dated 02.08.2007. But unfortunately even after the expiry of the period agreed upon and payment of almost all the amount to the builder has not completed the constructions in accordance with the approved plans.  As per the terms and conditions of the agreement, the builder ought to have handed over the area measuring to an extent of the carpet area of 1500 sqft. and superstructures 40’ (forty feet) and the parking space for 4-wheeler. It may be noted that inspite of completion of 18 months as stated above, the builders O.P.N o.1 did not hand over the completed constructed area measuring 1500 sqft. Carpet area. On several persuasion and requests and after completion of almost all 36 months the builder handed over incomplete construction of the flat and shortage of the area i.e. as it was agreed upon that the builder should have delivered  a constructed part measuring 1500 sqft. Of carpet area, but handed over 1267 sqft and not allotted the parking space as per agreement till date. Thus the builder/O.P. committed unfair trade practice causing mental torture and agony, worseness to the complainant, the O.Ps failed to construct the flat in time and as such is guilty of gross negligence and deficiency in rendering service and in that incomplete construction area the complainant has no other go but the perform the required ceremonies of newly entrance as per their caste custom and made further construction with his own money.  The complainant kept the articles and stayed two days alongwith his mother, two brothers and elder sister-in-laws in the said flat.  The family members of the complainant took the possession in the said flat on 21.07.2010, the owner of the promoter K.Kiran Babu and his associates Dusmanta Padhy came and abused his family members in filthy languages and demanded for Rs.2,00,000/- and locked up the family members in the flat. On the report of the complainant for which a G.R.case No. 778/2010 of S.D.J.M. Bramhapur was initiated and is pending before the SDJM Bramhapur and subsequently transferred to JMFC Miss D.Das, Bramhapur. This is not only harassment of unfair trade or deficiency of rendering service but inhuman and against Human rights.  All the acts, deeds and declaration of the O.Ps or illegal unconstitutional and a breach of the contractual obligation, the builders illegally and gross-violation of the approved plans make construction over the flat. In addition to the aforesaid violation, the builder have also illegally constructed two more flats above the permitted floor and also violated the condition given by the different Government Department. Thus the O.Ps have caused gross violation, causing mental, physical and financial torture to the complainant and as such they are liable to make good of the loss. The O.P.No.1 has given 1267 sqft instead of 1500 sqft and has not given the parking space till date and violated the terms and conditions of the agreement. Thus the promoters have committed a gross violence of the terms and conditions of the agreement, deviated the BDA approved plans, illegal construction etc. and as such the complainant having been prejudiced by such acts and deeds of the O.Ps compelled to file this case. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to pay Rs.19,03,661/- for the compensation, damage for loss of reputation inflicting mental torture and suffering and financial loss towards the litigation expenses Rs.50,000/- in the best interest of justice.

               3. Upon notice the O.P.No.1 & 2 filed version through his advocate. It is stated that M/s Sherwali Promoters (P) ltd was as registered company having its office at Gandhinagar 1^st lane, Bramhapur through its directors, the O.P.No.1 & 2 and they are called the promoters, Builders. The O.P.No.1 has executed a registered general power of attorney in favour of her husband Sri K.Kiran Babu and Sri N.Kishore Reddy vide Regd. G.P.A. No. 538/2007 dated 19.06.2007. Sri K.Kiran Babu and N.Kishore Reddy have sold the house sites measuring 515 sq feet i.e. 0.011 and 8/10 decimals of undivided proportionate joint impartible share of interest in the land out of the total extent of Ac.0.300 decimals, i.e. 13065 square feet under a registered sale deed bearing No.5879/2007 dated 05.09.2007. The vendors intended to construct multistoried building of flats and the vendors have agreed to allow their vendors No.2 to develop and construct their multistoried building over their purchased site as well as the site of the vendor No.2 with the understanding that the proposed building would be called SHERAWALI PROMOTERS LTD and vendors prepared building plan for their proposed multistoried building and got the said plan approved by the BDA vide its office letter No. 90/BDA Bramhapur dated 10.01.2007. The Directors of M/s Shearwali Promoters have taken two housing projects namely VAISHNO TOWERS at Kamapalli and VAISHNO RESIDENCY at Hillpatna, Bramhapur and have carried out the construction of the two projects alongwith Dusmata Padhy who was the partner of K.Kiran Babu. On behalf of M/s Sherawalli Promoters (P) ltd the Managing Director, N.Kishore Reddy only had entered into an agreement with the complainant Sashanka Sekhar Patro wherein the purchaser (complainant) agreed to purchase the plot to be constructed by the builder/promoter after due fulfillment of the terms and conditions. The owner agreed to execute the sale deed in respect of proportionate undivided impartible indivisible share of land in favour of the purchaser’s flat unit No.VI on third floor in VAISHNO RESIDNECY measuring 1540 square feet carpet area 1500 square feet building area and 1540 square feet approximately of super built area for the construction of Rs.917.00 only on 5^th day of September 2007.  But it has been clearly mentioned in the agreement that the area mentioned is approximately.   It has been specifically mentioned in the agreement that the purchasers agrees to pay the promoters/builders interest at 21% per annum on all the amounts which became due sand payable by the purchasers to the promoters/builders under the terms of this agreement from the due date of said amount till payment. It is made clear that any delay on the part of the Developer in the work of constriction and/or completion either of the unit or of the building will not be constructed as default on the part of the developer or of the building will not be constructed as default on the part of the developer and the purchaser shall not be entitled to claim any compensation. It is also been agreed that the promoters/builders shall give possession of the said flats to the purchasrs and provided the purchaser has paid to the promoters/builders the entire amount of consideration and has made all the payments of dues and deposits and has performed his/her/their part of the present agreement and nothing further remains to be done in his/her/their part. Right over the terrace shall remain with the builder. After the possession of the unit is made over the purchaser he/she shall not raise any objection as to the defect or deficiency in the quality of materials used for construction of the unit or neither account whatsoever nor he shall demand any amenities or facilities with the flat beyond the agreed facilities as mentioned in the schedule. It is mutually between the parties that after completion of the said building the final measurement of the said flat will be taken by the Architect of the promoter/builder and the decision of the promoter’s Architect will be binding and final on both parties. After the final measurement, if there is any increase and/or decrease in the area, then the said building will be adjusted at the time of last installments proportionately. Super built up area shall cover construction area of stair case, Head room, periphery wall of flat internal wall of flat columns, over head tank, watch and ward room and any other constructed covered area of the entire complex. The O.P.No.3 has entered into an agreement with the complainant to construct and sell lat No.6 of the 3^rd floor of Vaishno Residency, Gosaninuagam with the above terms and conditions. It is not correct to say that as per the terms of the agreement the O.Ps had to hand over the area measuring an extent of carpet area of 1500 square feet super structure 40” and parking space of four wheelers. The complainant has not paid the entire amount to the builder and as such the question of handing over the flat in time does not arise at all. The Flat No.6 of Vaishno Residency over Plot no.1257/3945, 1308/3496 and 1308/1820/3497, Khata Nol. 1030/1792 at Hillpatna, Bramhapur having plinth area 1417.75 square feet and 19.85% common area +281share 1417.75  =1699.17 square feet flat area of plot is 1699.17 square feet but not 1267 square feet as alleged. The complainant has to make payment for the cost of 1699.17 per square feet and has to pay Rs.50,000/- in addition for intending purchases to garage facilities. Their complainant has paid to the Managing Director an amount of Rs.13,66,000/- and had to pay the balance amount of Rs.1,92,138.89 and has to pay Rs.15,000/- towards electricity dues, thus the complainant owes Rs.2,07,138.89 to the builders with interest at 21 per annum. The petition is devoid of any merit and liable to be dismissed with costs. M/s Sherawalli Promoters ltd is already dissolved. Hence the O.P.No.1 & 2 prayed that the complaint petition be dismissed with costs and he may be directed to return Rs.2,21,985.85 to the O.P.No.2 in the interest of justice.  

               4. Upon notice the O.P.No.3 filed written version/argument through his advocate. It is stated that the complainant had not entered into any agreement to purchase a flat having a carpet area of 1500 sq. feet that before entering into the agreement the complainant had verified the title deeds and also the approved house building plan of B.D.A and accordingly he had entered into an agreement for a built of area which includes the carpet area as well as common facilities. This O.P. had relinquished all right title and interest over the said property in favour of the O.P.No.2 K.Sailaja whose husband was a partner of this O.,P. and had taken up the construction of Vaisnavi Residency vide agreement dated 05.06.2010 under the terms of the said agreement the O.P.No.2 or her husband shall bear all unforeseen liability in respect of Vaisnavi Residency. This O.P. is no way related to the agreement and delivery of the flat to the complainant. Hence the O.P.No.3 prayed to dismiss the case in the best interest of justice.

               5. On the date of final hearing we heard argument from the advocate of complainant as O.Ps were continuously absent on several dates.  This case is an year old case. We perused the complaint petition, written version, written argument, documents and citation as available in the case record. It reveals from the complaint petition that the complainant took the possession of the incomplete flat on 21.07.2010 from the O.Ps and filed the case against the O.Ps on 10.08.2012. It also reveals from the agreement filed by the complainant that O.P.No.1 and the complainant have executed the said agreement on 02.08.2007 wherein there is no signature of second parties. Law is well settled in case of agreement that a person who has not signed in the agreement he is not binding to the terms and conditions of the agreement. It is also pertinent to mention here that one criminal case bearing G.R.Case No. 778/2010 has also been initiated relating to this flat. This Ld. Forum has no jurisdiction to depute any pleader commission/Commission for measurement of area of the complainant’s flat as such with limited scope and jurisdiction this Ld. Forum can not adjudicate this case properly. Further it reveals from the complaint as well as written version of the O.Ps that it has contained several complex issues both of facts and law.

               6.Law is well settled in case of Megna Nand versus Haryana Urban Development Authority through Estate Officer Another reported in 2012(3) CPR 92  where in the Hon’ble National CDR Commission, New Delhi has held that “Consumer Forum has discretion to direct the complainant to approach civil court for appropriate relief in case of complicated issues”.

               7. On foregoing discussion, it clearly reveals that this case contents several complex issues of fact and laws which are to be decided in Civil Court.

               8. Considering the factual position of the case, the complainant’s                    case is dismissed against the O.Ps and the complainant is at liberty to file his complaint before Civil Court/any other Forum having competent jurisdiction for redressal of his grievance and he may avail the benefits under Section 14 of the Limitation Act 1963 in the best interest of justice. 

               The order is pronounced on this day of 06^th February 2020 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet. Thereafter the file be consigned to record room.