Order-13.
Date-20/07/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant in short is that the OP1 is a company engaged in the business of real estate and OP1 provided a property/flat situated at 25A, Dr. Girindra Sekhar Bose Road, 3rd Floor, Flat No.F-2, Kolkata – 39 measuring 1000 sq. ft. super-built up area to the complainant and the complainant booked the said flat by entering into an agreement for sale dated 24-01-2014 with the OP and paid the full amount, amounting to Rs.22 lakhs and the same was also registered vide deed no.5620 of 2014 dated 23-06-2014. Complainant also took possession of the said flat. After taking such possession the complainant is facing a lot of illegalities. It is alleged that the OP2 has illegally sold common areas by constructing rooms on the common areas. Complainant is not enjoying the benefit of the common facilities of the said building. It is further alleged that OP has raised a covered room at the back portion of the said premises at pump area, parking space etc. It is also alleged that the electricity bill of the ground floor of the premises which has been described as common area is coming in the name of one Smt. Anjali Chatterjee who happens to be the wife of OP No.2. OP2 has not also mutated the said property in the name of the complainant. It is also alleged that there is water percolation from the roof of the said flat damaging interior paint, interior decorations, walls etc. It is also alleged that the OP2 has illegally constructed a single room flat in the said premises and sold them to a third party. Complainant had to bear an expense of Rs.2 lakh for such damages in his apartment. Complainant has prayed for sum of Rs.2 lakhs for repairing of the damages.
OPs have contested the case in filing written version contending, inter alia, that the case is not maintainable either in fact or in law. It is stated that the OP1 handed over the possession of the said flat in finished condition to the complainant and registered a deed of conveyance dated 23-06-2014. It is also stated that the complainant has handed over the possession of the said flat in fully finished and habitable condition. It is alleged by the OPs that the complainant issued two cheques bearing no.045210 and 045208 dated 30-06-2014 and 15-07-2014, each amounting to Rs.50,000/- drawn on SBI for the additional work which the OPs undertook at the request of the complainant and according to the instruction of the complainant the said cheques were presented before the Bank and both the cheques were dishonoured and amount was not yet paid. Thereafter, OP2 went on several occasion s to the complainant and asked for the payment of Rs.1 lakh for which the said cheques were issued but the complainant never paid the said amount and being enraged has filed the entire suit. It is alleged that the there is no negligence or deficiency of service by the OPs. OPs have prayed for dismissal of the case.
Point for Decision
- Whether the OPs are guilty of deficiency of service?
- Whether the complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents i.e. the deed of agreement, some photographs and other materials on record. Admittedly, the flat in question was registered by the OPs in favour of the complainant vide deed no.5620 of 2014 dated 23-06-2014 before the Additional Registrar of Assurances. It is also an admitted position that the complainant is in possession of the said flat. The grievance as agitated by the complainant as we find is the leakage problem of the roof of the flat. The complainant has filed some photographs to show the water percolation from the roof of the flat in question. But the complainant has not filed any document as regards his expenditures of the repairment of the roof. It also appears that the complainant has not filed any engineer’s report or expert report to establish his allegation of leakage of water from the roof. It is given to understand to us that the complainant after being satisfied with the construction and finished condition of flat and took the possession of the flat and got registered the said flat in his favour without any objection and dispute. The construction of rooms in common area or illegal construction as alleged by the complainant is within the purview of Calcutta Municipal Corporation to inspect and to take necessary action. The payment of electricity bill is also a matter lying with CESC Ltd. and there is no chance or scope for this Forum to intervene. It is alleged from the side of the OPs that the complainant requested the OPs for some extra work for the said flat and accordingly OP2 had done the extra work in the said flat as per the request of the complainant and the cost for extra work was agreed between the OP2 and the complainant at Rs.1 lakh and after completion of the said work the OP2 requested the complainant for payment of Rs.1 lakh for the extra work done in his flat but the complainant delayed the payment and issued two cheques no.045210 and 045208 dated 30-06-2014 and 15-07-2014 each amounting to Rs.50,000/- drawn on SBI for the additional work which the OPs undertook at the request of the complainant and according to the instruction of the complainant the said cheques were presented before the Bank and both the cheques were dishonoured and amount was not yet paid. Thereafter, OP2 went on several occasion s to the complainant and asked for the payment of Rs.1 lakh for which the said cheques were issued but the complainant never paid the said amount and being enraged as it is alleged by the OPs, the complainant has filed this case out of grudge.
We think that the matter of mutation is lying with concerned municipality or KMC or owner/purchaser is liable and responsible for mutation of the said flat in his name and OP2 is in no way responsible for the same.
It appears from the petition of complaint that the subject matter of the instant case that the said flat is Rs.31 lakh. This Forum we think has no jurisdiction pecuniary-wise. However, the complainant as we find has claimed a sum of Rs.2 lakh for repair the damage, compensation of Rs.3 lakh along with litigation cost of Rs.50,000/-.
We are afraid we do not find any deficiency in service on the part of the OPs because the OPs have registered the flat in question in terms of agreement and has also given possession of the said flat in favour of the complainant. The complainant has also failed to drive home the allegation of water percolation by any Expert’s opinion like Civil Engineer or Surveyor. We are afraid we do not find any merit in this case. We find the complaint as frivolous and vexatious for the reasons as discussed earlier in the body of this judgment.
In result, the case fails.
Hence,
Ordered
That the case be and the same is dismissed on contest.
Complainant is directed to pay an amount of Rs.10,000/- to be deposited to this Forum, for filing of the instant vexatious and frivolous complaint within one month from the date of this order i.d. necessary order will be passed.
