HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT
1. The instant complaint is under section 17, sub section 2 of the Consumer Protection Act, 1986 ( in short, ‘the Act’) is at the instance of the complainant Sri Goutam Chanda against M/s Ganapati Construction and others on the allegation of deficiency in service on the part of the opposite parties in a consumer dispute of housing construction.
2. The facts of the complaint case in short are that the complainant entered into an agreement for sale with the opposite parties on 12/08/2013 for purchasing a flat being No. 5B having 700 sq. ft. on the 4th floor, at the consideration of ₹14,00,000/- (Rupees fourteen lakh only) for his residential purpose. The complainant paid ₹01,50,000/- (Rupees one lakh and fifty thousand only) towards earnest money to the promoter / developer.
3. Further case of the complainant is that the promoter / developer handed over the possession of the said flat and registered a deed of conveyance on 24.06.2015 in favour of the complainant measuring 750 sq. ft. at a consideration of ₹14,30,000/- (Rupees fourteen lakh and thirty thousand only) which is contrary to the agreement dated 12.08.2013. The complainant paid the full consideration amount to the opposite parties against the said flat.
4. Further case of the complainant is that the flat was found to be incomplete in many respects and many works were left out and it was not in habitable condition. The complainant after taking possession felt different difficulties to live in with family members. There was no proper electric wiring and no proper water supply installed. The complainant gave ₹01,60,019/- (Rupees one lakh sixty thousand and nineteen only) to the opposite party No. 4 Sri Rajib Chakraborty for completion of the incomplete works. The complainant told the promoter / developer about the said inhabitable condition in using the flat but the promoter did not come forward to complete the works in respect of the flat in question. The complainant sent legal notice on 23.03.2018 through his Learned Advocate to the opposite parties for their grievances. But the opposite parties did not comply the requirements of the said legal notice.
5. Hence, the complainant has filed the complaint before this Commission claiming for the following reliefs :-
“a) To direct the OPs to complete the project as well as subject flat in favour of the complainant.
b) To direct the promoter / developer (OP Nos. 1 to 4) to complete the incomplete work such as paint outside walls, erection of boundary, repair leakage and damage wall, replace crack marbles and the lift with proper permission, entrance of the main gate of the boundary wall.
c) Alternatively, refund Rs.1,60,019/- with interest which was kept illegally with OP No. 4 from 23.04.2015 to till date.
d) To appoint an engineer commissioner u/s 13(4) C.P. Act, 1986 for inspection the actual position of the said flat No. 5B as well as subject building and submitting a report before your Lordships.
e) To award compensation of Rs.5 Lakhs in favour of the complainant against the promoter for his negligence and deficiency in service.
f) To direct the OPs to pay Rs. 1 Lakh to the complainant as cost.
g) To pass such other order and orders as your Lordships may deem fit and proper.”
6. The opposite parties entered appearance in this case and contested the case by filing written version denying all the material averments of the petition of complaint.
7. The specific case of the opposite parties is that the case is not maintainable in law. The complainant never issued any cheque amounting to ₹01,60,019/- (Rupees one lakh sixty thousand and nineteen only) in favour of the opposite parties. The opposite parties have no responsibility regarding the said payment. The case is barred by limitation. The cause of action arose on 24.06.2015. The deed of conveyance was registered and the possession of the flat was handed over to the owner / complainant / petitioner. Hence, the opposite parties have prayed for rejection of the petition of complaint.
8. Upon the pleadings of the parties the only point requires for determination is whether the complainant is entitled to get any relief as prayed for.
9. Decisions with reasons :-
To prove the case the complainant has filed evidence on affidavit in support of his case. The opposite parties filed questionnaire against the evidence on affidavit filed by the complainant. The complainant gave reply to the questionnaire filed by the opposite parties.
10. In support of the case the opposite parties did not adduce any evidence on affidavit before this Commission.
11. The complainant in his evidence on affidavit has stated that he entered into an agreement for sale with the opposite parties on 12.08.2013 for purchasing a flat being No. 5B having 700 sq. ft. on the 4th floor at a consideration of ₹14,00,000/- (Rupees fourteen lakh only) and subsequently, the promoter / developer handed over the possession and registered the deed of conveyance on 24.06.2015 to the complainant in respect of a flat measuring 715 sq. ft. at a consideration of ₹14,30,000/- (Rupees fourteen lakh and thirty thousand only) which is contrary to the agreement dated 12.08.2013. The complainant in his evidence on affidavit has further stated that the complainant paid the full consideration amount to the opposite parties against the said flat. After registration of the flat the complainant took possession of the flat and found the flat to be incomplete in many respects and many works were left out and it was not in habitable condition.
12. The complainant has further stated that ₹01,60,019/- (Rupees one lakh sixty thousand and nineteen only) paid to the opposite party No. 4 Sri Rajib Chakraborty through a cheque for completion of the incomplete works but to no effect.
13. The complainant has further stated in his evidence on affidavit that he sent legal notice on 23.03.2018 to the opposite parties but the opposite parties did not comply the requirements of the said notice.
14. Photocopy of the annexure ‘A’ is the agreement for sale dated 12.08.2013 executed between the complainant and the opposite parties.
15. Photocopy of annexure ‘B’ is the registered deed of sale dated 24.06.2015 executed between the complainant and the promoter / developer.
16. Photocopy of annexure ‘C’ is the pass book of the complainant.
17. Photocopy of annexure ‘E’ is the legal notice sent to the opposite parties by the complainant through his Learned Advocate.
18. Therefore, on consideration of the evidence on affidavit of the complainant and the above noted documents prove that the complainant and the opposite parties entered into an agreement for sale of a flat being No. 5B having 700 sq. ft. on the 4th floor at a consideration of ₹14,00,000/- (Rupees fourteen lakh only) and subsequently, the promoter / developer registered a deed of sale in favour of the complainant in respect of the said flat on 24.06.2015 and after taking possession of the said flat the complainant found that the said flat was not in habitable condition. The flat was incomplete in many respects and many works were left out.
19. It is also proved by evidence and by the said documents that the opposite parties did not comply the requirements of the legal notice dated 23.03.2018 issued by the complainant through his Learned Advocate.
20. Under this facts and circumstances and on careful perusal of the materials on record it is proved that the opposite parties are guilty of deficiency in service and serious unfair trade practice.
21. In the result, I am of the view that the opposite parties deliberately failed and neglected to clarify even a single issue as raised by the complainant which tantamount to serious deficiency in service and grave unfair trade practice on the part of the opposite parties.
22. The record goes to show that the opposite parties filed written version and questionnaire against the evidence filed by the complainant. Subsequently, they did not turn up and did not file any evidence on affidavit in support of their case. So, the case of the opposite parties as stated in the written version has not been proved by evidence of the opposite parties. So, no reliance can be placed on the written version filed by the opposite parties.
23. Under this facts and circumstances and on consideration of the materials available on record I am of the view that the opposite parties are guilty of serious deficiency in service and grave unfair trade practice for which the complainant is in law and in equity fully entitled to get reliefs as prayed for.
24. In the result, the complaint case succeeds.
25. The complaint case be and the same is allowed on contest against the opposite parties.
26. The opposite parties are directed to complete the project as well as the subject flat in favour of the complainant.
27. The opposite party Nos. 1 to 4 are also directed to complete the incomplete works such as paint in outside walls, erection of boundary, repair leakage of damaged wall, replace cracked marbles and the lift with proper permission within 60 days from the date of passing of this order.
28. The promoter Nos. 1 to 4 are directed to pay ₹01,00,000/- (Rupees one lakh only) towards compensation in favour of the complainant within the said 60 days period from the date of passing of this order for their negligence and deficiency in service.
29. The opposite parties shall also pay ₹10,000/- (Rupees ten thousand only) as litigation cost.
30. If the opposite parties fail to comply with the order of this Commission, then the opposite parties shall pay ₹50/- per day till the completion of the incomplete works.
31. If the opposite parties fail to comply with the direction made within the period mentioned above, then the complainant is at liberty to get the order implemented with due course of law.
32. Let a plain copy of this order / judgment be given to the complainant free of cost and a copy also be served upon the opposite parties by registered post / speed post with A/D as early as possible.
