FINAL ORDER
Samaresh Kumar Mitra, Member.
This case has been filed U/s.12 of the Consumer Protection Act, 1986 filed by the complainant, Somnath Mitra.
The case of the complainant’s in short is that opposite party is a Partnership Firm and it runs its business through its partners for gain by way of making multi-storied building.
The property originally belonged to the complainant and decided to make new construction over the schedule property and for such purpose the complainant entered into an agreement with the opposite party for the year 2013. As per the terms and conditions stipulated in the said agreement the opposite party will allot two residential flats out of which one in the second floor south western side facing having built up 676 Sq ft approx excluding super built up area and one garage behind one road facing shop-room measuring 150 Sq ft approx. excluding super built up area together with proportionate share in the common facilities, utilities and amenities inclusive of roof of the building on proportionate building.
The opposite party handed over the possession of the flat in favour of the complainant but when opposite party handed over the plan of those flats the complainant came to aware that the opposite party has failed to provide the agreed total area of those flats having area of 624 Sq ft each instead of 676 Sq ft. Thereafter the complainant caused measurement of those flats by a surveyor on 20.07.2017 and it was revealed that those flats having area measuring 613 Sq ft each instead of 676 Sq ft. Moreover, the wall of those flats is defective and damaged and the tiles affixed on the walls are so loose that those are falling there from. The complainant thereafter contacts with the opposite party but the partners of the opposite party did not pay any heed to the same. Finding no other alternative the complainant had to repair those walls of his own cost. The complainant also expends more money for installation of eight doors and two basins in the said two flats. The opposite party had not supplied revised plan of those flats, original deed and parcha.
At last the complainant sent a legal notice dated 24.1.2014 requesting opposite party to settle the above disputed with immediate effect but the opposite parties gave a reply denying all the material allegations made by the complainant. Finding no other alternative the complainant filed this case before this Forum with a prayer to direct the opposite parties to allot the rest area equivalent to 63 Sq. ft. each in respect of two flats total measuring 126 Sq ft, to pay compensation of Rs.2,00,000/- towards cost of installation of eight doors and two basins, to pay Rs.1,00,000/- towards cost of repair made by the complainant, to allot the area equivalent to the 35% of the constructed area as per revised plan as well as the one BHK flat raised over the fourth floor of the said building or pay the consideration of the market value of the same in lieu of the said area, to pay a sum of Rs.2,00,000/- towards compensation for causing mental pain and agony, to pay a sum of Rs.20,000/- towards litigation cost.
Complainant filed evidence on affidavit which is nothing but replica of complaint petition.
Despite receiving notice the opposite parties in this case did not turn up. So, the proceeding runs ex parte against the all opposite parties.
Complainant in his written notes of argument averred that he entered into a registered development agreement with the opposite party for raising multistoried construction over the case property. According to said agreement, the opposite party will allot two residential flats out which one in the second floor having built up area 676 Sq ft excluding super built up area and another one in the third floor having built up area 676 Sq ft excluding super built up area and one garage behind one road showroom measuring 150 Sq ft excluding super built up area together with proportionate share in the common facilities, utilities and amenities inclusive of roof of the building on proportionate basis. After getting possession the complainant came to know that the opposite party failed to prove the agreed total area of those flats having area of 624 Sq ft instead of 676 Sq ft each. Thereafter he measured those flats by an independent surveyor on 29.7.2017 and revealed that flats having area measuring 613 Sq ft each instead of 676 Sq ft each. He also averred that walls of those flats are defective and damaged and the tiles affixed on the walls are so loose that those are falling there from. The partners of the opposite party did not pay any heed to the same and finding no alternative the complainant prepared those walls of his own expense. He also installed eight numbers of doors and two basins in two flats but the opposite party did not refund the charges of those doors and basins in favour of the complainant. The opposite party also failed to supply the revised plan of those flats and original deed and parchas of those flats. Moreover the opposite party did not provide the owner’s allocation in 1BHK flat on the fifth floor which was not mentioned in the agreement in between the complainant and opposite party/developer.
The complainant further assailed regarding owner’s allocation in accordance with the agreement dated 18.9.2013 which the opposite party failed to provide this complainant as this complainant is the owner of the land on which the multistoried building constructed. So, the complainant served a legal notice upon the opposite party to settle the dispute immediately but the opposite party gave a reply dated 2.12.2014 denying all the material allegations made by the complainant. But the opposite party verbally requested this complainant to settle the dispute through discussion so that the project may complete within the date. Later on the complainant served another notice to the opposite party and opposite party replied and admitted that ‘the final measurement are yet to be done and after final measurement if your clients allocation will reveal shortage my clients will be adjusted the same’. But the opposite party failed to provide the owner’s allocation as per agreement and deficient in providing service to this complainant while handing over the flat in question. So, getting no alternative the complainant filed the instant complaint petition praying direction as enumerated in the prayer portion of the complaint petition.
The complaint petition is unchallenged one as the opposite party did not eager to contest the case by filing written version, evidence on affidavit and written notes of argument.
After perusing the agreement dated 18.9.2017 it appears that the complainant Mr. Somnath Mitra by virtue of two deeds and 1/3rd respective share became the absolute owner of undivided 3.5 Satak land stated in the first schedule which is free from all sorts of encumbrances, liens, lispendents, attachment of any kind whatsoever and the said property is recorded in LR & ROR vide new LR Khatian No.6789. In owner’s allocation it is specifically stated that two residential flats i.e. one in second floor having built up area 676 Sq ft approx excluding super built up area and another in 3rd floor having super built up area 676 Sq ft. approx super built up area and one garage in western side behind one road facing shop room covered area approximate 150 Sq ft excluding super built up area with proper road for four wheeler garage together with proportionate share of common facilities, utilities and amenities of the building as fully and particularly described in the second schedule. If municipality will sanction further flooring owner will gate 35% of the constructed area.
After perusing the complaint petition, evidence on affidavit and hearing the ex parte argument of the complainant this Forum is in the opinion that the complainant being the owner of the land made an agreement with the opposite party promoter/ developer and as per agreement he is entitled to get owners allocation i.e. 35% of the constructed area but after getting possession from the opposite party he revealed that the floor area is less than the agreed quantity so he measured the floor area and also noticed the manufacturing defects of the flats and informed the promoter /developer and requested to repair the same and to compensate the less quantity but his request became unheeded. So he compelled to file the instant case before this Forum praying direction as prayed in the prayer portion of the complaint petition. He filed evidence on oath and averred that the walls of those flats are defective and damaged and the tiles affixed on the walls are so loose that those are falling there from. The partners of the opposite party did not pay any heed to the same and finding no alternative the complainant prepared those walls of his own expense. He also installed eight numbers of doors and two basins in two flats but the opposite party did not refund the charges of those doors and basins in favour of the complainant. The opposite party also failed to supply the revised plan of those flats and original deed and parchas of those flats. Moreover the opposite party did not provide the owner’s allocation in 1BHK flat on the fifth floor. The version of the complainant is unchallenged so we have to rely the averment of the complainant and measurement of the independent surveyor. The complainant informed the opposite party to repair and compensate but his request has been unheeded by the partners of the opposite party firm. So the deficiency of service of the opposite party is well established as they cannot deny their responsibility regarding the service of this complainant being the consumer of the opposite party.
Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party no.1 to 3 in constructing the impugned flat and providing less quantity of owners allocation by adducing cogent document/evidence so the prayer of the complainant is allowed ex parte. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint is thus disposed of accordingly.
The discussion made herein before, we have no hesitation to come in a conclusion that the Complainant abled to prove the deficiency of service of the opposite party No1 to 3 in respect of construction of flat and not providing owners allocation as per agreement. So they are liable to pay compensation and other reliefs as ascertained by this Forum.
ORDER
Hence, ordered that the complaint case being No.217/2017 be and the same is allowed ex parte against the opposite party, with a litigation cost of Rs.6000/-.
The Opposite Party No. 1 to 3 are directed to pay a sum of Rs.1,20,000/- for installation of doors and basins in the flats of the complainant. They are further directed to pay a sum of Rs.50,000/- for the cost of repairing the impugned flat.
The opposite party is also directed to allot 35% of the constructed portion as per revised plan as well as the one BHK flat raised over the 4th floor or to pay consideration of the market value of the same in lieu of the area.
The opposite party No.1 to 3 are directed to pay compensation amounting to Rs.40,000/- to the complainant for mental pain & agony and harassment of the complainants.
All the payments are to be made within 45 days from the date of passing this order.
At the event of failure to comply with the order the Opposite Party No.1 to 3 shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/sent by ordinary post for information & necessary action.
