DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _359_ OF ___2013_
DATE OF FILING : 2.9.2013 DATE OF PASSING JUDGEMENT: 14/06/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Sri Goutam Pyne, son of late Dayamoy Pyne, of Shyama Shiva Apartment, Flat no.SSHA/7, of 2, K.D Mukiherjee Road, Kolkata -60, P.S. Parnasree
2.Sri Samir Kumar Biswas, son of late Sukumar Biswas of Shyama Shiva Apartment, Flat no.SSHA/7, of 2, K.D Mukiherjee Road, Kolkata -60, P.S. Parnasree and also residing at 85/6, Banamali Naskar Road, Kolkata – 60, P.S. Parnasree.
3. Sri Debraj Mukherjee, son of Sri Ashoke Mukherjee
4. Sri Ashoke Mukherjee, son of late Dr. B.P Mukherjee
5. Smt. Anita Mukherjee, wife of Sri Ashoke Mukhejee of Shyama Shiva Apartment, Flat no.SSHA/7, of 2, K.D Mukiherjee Road, Kolkata -60, P.S. Parnasree and also residing at 91, Banamali Naskar Road, Kolkata -60, P.S. Parnasree.
O.P/O.Ps : 1. M/s Shyam Enclage Pvt. Ltd. at 12-B, Sadananda Road, Kolkata-26, P.S. Kalighat.
2. Mr. Tara Chand Gupta, son of alte Ram Gopal Gupta , Director of M/s Shyam Enclage Pvt. Ltd. of 107/1, Monoharpukur Road, Kolkata- 26.
Proforma O.P : 3. Smt. Sumita Banerjee, wife of late Samir Kuamr Banerjee
4.Sri Subhendu Banerjee, son of late Samir Kuamr Banerjee
5. Sri Biswanath Banerjee, son of Sekharendra Nath Banerjee
6. Smt. Anuva Mukherjee, wife of Sri Shyamal Kumar Mukherjee of Shyama Shiva Apartment of 2, K.D Mukherjee Road, Kolkata-60, P.S. Parnasree.
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainants is that complainants being the flat owners of the schedule property brought this suit for deficiency in service of the developer/O.P since they have neglected to install lift in the suit property inspite of receiving the amount from the flat owners and land owners. It has also stated that O.P nos. 1 and 2 neglected to complete the roof treatment from protecting the building from rain and natural calamity ,that is why water is being leakage and coming out through the column/pillar since there is no roof tiles or jalchad. As a result the building is being damaged. It is also claimed that one place is kept with a big whole for installation of life which caused extreme difficulties and at any time any accident may take place since complainants and other land owners are living there along with their family members. It has clamed that complainant-1 and O.P developer executed and registered agreement on 23.7.2010 at a consideration of Rs.12,98,000/- and entire amounts already received by the developer and also received excess amount for excess area of the flat i.e 845 sq.ft but after taking possession the complainant no.1 and after measurement of the flat ,the total area comes only 766.37 sq.ft instead of 845 sq.ft, although in the agreement it was written 808 sq.ft, that is why, the developer has received excess amount and complainant-1 also sent notice to that effect to the developer. The complainant no.1 further claims that he has filed this case under section 151 C.P.C o direct the O.P nos. 1 and 2 to execute and register the deed of conveyance in favour of the complainant -1 and to repay the excess amount of Rs.31,400/- for the cost of excess amount for measurement which the developer had already received from the complainant-1. It has claimed that the instant complaint has been filed by all the flat owners in whose deeds the provision of lift was specifically mentioned .
The O.P nos. 1 and 2 contested the case by filing written version and has claimed that this case is bared by limitation and this complaint case is not maintainable and has also denied all the allegations of the complaint case. It has strongly denied that the developer violated the building plan. It has claimed that at the time of taking possession there was no objection and owners/purchasers expressed their satisfaction and no less area allotted. So, question of payment alleged does not arise. It has claimed that no separate money was collected for installation of lift from the purchaser and there is no clause to provide lift , water to Mr. Goutam Pain and there was no agreement of water roof and no money has been received by the O.P nos. 1 and 2. It has strongly denied regarding the allegation of selling the garage. Hence, O.P nos. 1 and 2 prays for dismissal of the case.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice adopted by the O.Ps or not.
Decision with reasons
At the outset it must be stated that all the complainants clubbed together filed the case who are the purchasers and became owners of the building. It should be mentioned here that the claim of the complainant -1 for payment of excess amount of Rs.1,41,400/- to the developer is a separate cause of action . So, complainant has to prove the same by filing separate case in this regard.
After filing the said case complainant has to prove or excess or less area , as the case may be, by independent Engineer Commissioner through the Court. But the said things has not yet happened.
Be that as it may, the moot question is that lift has not yet been installed and O.P nos. 1 and 2 ,the developer, tried to transfer the garage space for commercial purpose apart from that unfinished works in relates to roof etc.The O.P nos. 1 and 2 contested the case and denied all the allegations leveled against them on the ground that the said things is not mentioned in the agreement itself. But complainant has been able to prove by documentary evidence regarding the amenities ,facilities which will be provided by the Samasree Apartment which was handed over to the complainants initially to attract the complainants to purchase the flat which is undoubtedly a misleading advertisement or document and the same is considered as an unfair trade practice.
We have perused the said documents, wherefrom it appears that facilities will be given i.e lift and servant toilet in ground floor. Both the same have not yet been done and in the said document payment terms was also mentioned. But cleverly O.Ps did not mention the same in the Memorandum of Agreement. But that does not mean that complainant will not get the same. It should be mentioned here that consumer has a right to get all these facilities which has been advertised by the O.P before purchasing the flat and thereafter Memorandum of Agreement was executed on the basis of th4e said document/advertisement. Thus all the amenities i.e lift, servant toilet in the ground floor, KMC water project, water resistant , common roof cover etc. have to be provided by the developer.
It is true that no local inspection was held either by the complainant or by the O.P to prove which works were done or not. So, at this stage we must have to say that all these works like amenities and facilities should be provided in the said building, of course, for the purpose of generator connection inside the building the extra cost has to be paid by the purchasers if they are occupying the flats as owners along with other intending purchasers.
Thus we find that O.Ps when has challenged in the written version that all these facilities specially lift , servant toilets, water resistant in the common roof has not been mentioned in the agreement itself, then it can be safely presumed that said works have not yet been done. Thus O.P nos. 1 and 2 , the developers acted unfair trade practice as well as deficiency of service.
Hence,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest.
O.P nos. 1 and 2 are jointly and/or severally directed to install lift at their own cost within three months from the date of this order and also direct to complete the roof treatment either by placing tiles or by any other means within the said period.
The O.P nos. 1 and 2 are jointly and/or severally directed not to hand over or transfer the garage space for commercial space which will be deviations of the sanctioned plan. So, they are restrained permanently from transferring the garage portion for commercial purpose .
The other prayers are refused at this stage in light of the observation made in above.
All these amenities and facilities will be handed over to the complainant within three months from the date of this order, specially lift, servant toilet and roof treatment which are common and urgent need of the occupiers/complainants, failing which O.P Nos. 1 and 2 are jointly and/or severally directed to pay compensation to the tune of Rs.3 lacs to the complainant for their suffering harassment and mental agony as well as deficiency in service, and also to pay cost of Rs.20,000/- .
Complainants are at liberty to execute the order after the stipulated period is over.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered inopen Forum. As it is,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed on contest.
O.P nos. 1 and 2 are jointly and/or severally directed to install lift at their own cost within three months from the date of this order and also direct to complete the roof treatment either by placing tiles or by any other means within the said period.
The O.P nos. 1 and 2 are jointly and/or severally directed not to hand over or transfer the garage space for commercial space which will be deviations of the sanctioned plan. So, they are restrained permanently from transferring the garage portion for commercial purpose .
The other prayers are refused at this stage in light of the observation made in above.
All these amenities and facilities will be handed over to the complainant within three months from the date of this order, specially lift, servant toilet and roof treatment which are common and urgent need of the occupiers/complainants, failing which O.P Nos. 1 and 2 are jointly and/or severally directed to pay compensation to the tune of Rs.3 lacs to the complainant for their suffering harassment and mental agony as well as deficiency in service, and also to pay cost of Rs.20,000/- .
Complainants are at liberty to execute the order after the stipulated period is over.
Member Member President
