West Bengal

South 24 Parganas

CC/535/2014

Smt. Mukul Chattopadhyay, Wife of Late Lakshmi Narayan Chattopadhyay. - Complainant(s)

Versus

M/S. Sun Shade Construction a registered partnership Firm. - Opp.Party(s)

Gautam Banerjee.

15 Nov 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _535_ OF ___2014_

 

DATE OF FILING : _3.11.2014                   DATE OF PASSING JUDGEMENT:  15/11/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :    Sharmi Basu

                                                                             

COMPLAINANT             :   Smt. Mukul Chattopadhyay,w/o late Lakshmi Narayan Chattopadhyay of 38, Bansdroni, Riffle Club, P.S. Regent Park, Kolkata - 70.

 

-VERSUS  -

 

O.P/O.Ps                            :  Sunshade Construction at Room no.1A, 15, Parasar Road, P.S Tallygunge, Kolkata – 29  represented by its partners;

                                             1.    Sri Niraj Kumar

                                             2.    Sri Alok Burman, both of 15, Parasar Road, P.S. Tollygunge, Kol- 29.

 

_______________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act filed by the complainant on the ground that Ajit Kumar Das  virtue of a registered sale deed dated 20.3.1965 became the owner of all the schedule property and said Ajit Kumar Das constructed a dwelling house which is numbered as 38 Rifle Club, P.S. Regent Park, Kolkata – 70 . Said Ajit Kumar Das died leaving behind his widow Smt. Molina Das, as his legal heirs whose name has been duly mutated in the record of KMC. It has claimed that on the strength of registered deed dated 25.3.1970 complainant has become owner in respect of the land measuring 3 cattah 4 chittak more or less together with one storied old building in plot no.190 and mutated her name in the KMC and renumbered as 38, Rifle Club, Kolkata -70 . It has claimed that complainant and proforma O.P Molina Das  mutually decided to amalgamate the said premises by registered exchange dated 7.6.2010 being numbered as 38, Rifle Club and complainant with proforma O.P Molina Das appointed the O.Ps for construction of the multi storied building and executed two agreements dated 6.2.2008 and subsequently on 5.11.2011 and as per clause of the agreement the O.P will be allotted 60% and the complainant and proforma O.P jointly had to be allotted 40% of the total constructed area of the building. It has claimed that total flat area is 7275 sq.ft and car parking area is 2200 sq.ft and the complainant and the O.P are entitled for the total parking area on the same ratio. As per the agreement the O.P has to pay the monthly rent for suitable accommodation to the complainant form the date of shifting from the existing accommodation and also to continue the regular payment of rent of the accommodation till giving possession to the complainant to the newly constructed building. It has claimed that developer after constructing the building has given the possession of the owner’s allocation by letter dated 30.11.2014 but developer has not complied the two points as provided in the

 

 

agreement dated 5.11.2011  i.e. completion certificate by the KMC in respect of the construction of the building as well as essential amenities which are required for common for all the residents of the building . It has also claimed that in terms of the agreement O.P has to pay rent for suitable accommodation which has not yet been fully complied with. The possession was not given within 18 months from the sanctioned date of the sanctioned plan for which owners are suffering lot and hence this case for cost, compensation to the tune of Rs.80,000/-  for giving possession beyond the stipulated period , litigation cost Rs.20,000/- ,direction upon the O.P to complete the pending works of the building, to provide completion certificate etc.

The O.ps are not contesting the case ,for which the case is running in exparte against them.

The point for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.

                                                            Decision with reasons

At the outset it must be stated that the case was fixed for exparte hearing and challenging the same O.P preferred revision before the Hon’ble State Commission and obtained interim order initially but at the time of hearing the Hon’ble 3^rd Bench vide order dismissed the revision petition and interim order also has been vacated on the ground that revisionist was absent even after last chance ,afrter obtaining stay order. So, following the spirit of the order we have heard the argument and accepted BNA ,particularly when the said order of the Hon’ble State Commission has not yet been challenged by the O.P before the Hon’ble National Commission. Thus, the totality of the circumstances clearly suggests that  they are aware about the fate of the fact but did not choose to appear only for dilatory tactics.

We have perused all the documents and we find that the O.Ps made deficiency of service by non-providing the flat in dispute in time to the complainant as well as not providing completion certificate ,but regarding the direction of the O.P to complete the pending works of the building, which wanted to mean the common facilities and amenities have not been specifically described either in the body of the complaint or elsewhere ,so that this bench can appoint an Engineer Commissioner to inspect the same ,for which, that prayer is not satisfactory one. Remaining other prayers i.e. the delay was caused to hand over the flat, completion certificate and litigation cost are justified. Accordingly, we find that O.P made deficiency in service and unfair trade practice by not providing completion certificate and non-providing the flat to the complainant within the period of 18 months from the date of sanctioned plan.

Accordingly, it is

                                                            Ordered

That the case is allowed in exparte with cost of Rs.10,000/- which will be paid by the O.P nos. 1 and 2 jointly and/or severally to the complainant within 45 days from the date of this order.

The O.P nos. 1 and 2 are further directed jointly and/or severally to pay compensation to the tune of Rs.70,000/- to the complainant within 45 days from the date of this order.

The O.Ps are also directed jointly and/or severally to hand over completion certificate to the complainant within 3 (three) months from the date of this order, since KMC takes time to hand over the completion certificate, of course, delay was caused due to the O.Ps for non-supply of necessary documents and cost.

 

If the O.Ps failed to comply the order jointly and/or severally then complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant  and the O.Ps free of cost through speed post .

                                                                        Member                                               President

Dictated and corrected by me                

 

 

                                       President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgment in separate sheet is ready and is delivered in open Forum. As it is ,

           

Ordered

That the case is allowed in exparte with cost of Rs.10,000/- which will be paid by the O.P nos. 1 and 2 jointly and/or severally to the complainant within 45 days from the date of this order.

The O.P nos. 1 and 2 are further directed jointly and/or severally to pay compensation to the tune of Rs.70,000/- to the complainant within 45 days from the date of this order.

The O.Ps are also directed jointly and/or severally to hand over completion certificate to the complainant within 3 (three) months from the date of this order, since KMC takes time to hand over the completion certificate, of course, delay was caused due to the O.Ps  non-supply of necessary documents and cost. To their end KMC.

 

If the O.Ps failed to comply the order jointly and/or severally then complainant is at liberty to execute the order through this Forum.

Let a plain copy of this order be served upon the complainant  and the O.Ps free of cost through speed post .

                                                                        Member                                               President