West Bengal

South 24 Parganas

CC/104/2015

Sri Sugata Khasnabis, S/O Late Pritipurna Khasnabis. - Complainant(s)

Versus

M/S , Debcon, The Developer Company. - Opp.Party(s)

Smt. Olivia Mukherjee.

23 Dec 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

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

 

      C.C. CASE NO. _104_ OF ___2015_

 

DATE OF FILING : 24.2.2015                     DATE OF PASSING JUDGEMENT:    23/12/2016

 

Present                        :   President       :   Udayan Mukhopadhyay

 

                                        Member(s)    :     Subrata Sarkar

                                                                             

COMPLAINANT        :    Sri Sugata Khasnabis,s/o late Pritipurna Khasnabis of 46/N, Haridevpur Road, P.S. Haridevpur, Kolkata – 82.

 

-VERSUS  -

 

O.P/O.Ps                            :    1.     M/s Debcon, The Developer Company, 36, Sahapara Road, P.S. Regent Park, Kolkata – 93.

                                                2.     Sri Debasish Routh, s/o late Amalendu Nath Routh , Proprietor cum Authorised Signatory of M/s Debcon of Babu Para, P.O Purba Putiary, P.S. Regent Park, Kolkata – 93

_______________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Udayan Mukhopadhyay, President

This is an application under section 12 of the C.P Act, 1986 filed by the complainant on the ground that complainant availed services for construction of entire first floor on existing three storied building   situated at 46/N, Haridevpur Road and premises no.86, Banamali Banerjee Road, P.S. Haridevpur, Kolkata – 82 duly owned by him.  It has claimed that O.P nos. 1 and 2 are the developer company. It has stated that complainant made an agreement dated 12.6.2013 executed between the complainant and the O.P-2 who is the Civil Contractor cum Proprietor cum Authorised Signatory of O.P-1 and for non-completion of the entire due work in the first floor within two years from the date of the agreement , cause of action arose on 1.1.2014 firstly when the O.Ps stopped the construction without any prior intimation to the complainant, thereafter on different dates. Thus it is a continuous cause of action. It has stated that complainant expressed his willingness to develop and construct entire first floor at about 676 sq.ft on existing three storied building on his paternal house and O.P-2 will get Rs.1300/- per sq.ft of the said first floor to avail services for construction from the O.Ps. Copy of the Agreement is annexed herewith. Complainant paid a sum of Rs.8,50,000/- only against nine money receipts issued by the O.P-2 and a sum of Rs.1,50,000/- only by account payee cheque  dated 31.12.2013 bearing no.78402 drawn from the savings bank account maintained at SBI, Haridevpur

 

 

Branch, which was encashed by the O.Ps on 2.1.2014. It has stated that complainant compelled to enter into the agreement dated 12.6.2013 with the O.P-2 and as per said agreement complainant should pay to the O.Ps a sum of Rs.8,78,000/- and compelled to give extra amount to the O.Ps on demand for extra work. Therefore, complainant paid a total sum of Rs.10 lacs but after getting the money no such work of construction was done at all by the O.Ps. When the O.Ps stopped the work on 1.1.2014, having no alternative complainant seeks help from the Central Grievance Cell of the Consumer Affairs Department wherein O.P-2 over phone assured him to start pending work within 48 hours but O.Ps did not keep their commitment, for which, the O.Ps are guilty of deficiency of service as defined under section 2(1)(g) of the C.P Act, 1986. It has stated that date was fixed for pre-litigation through mediation by the Central Grievance Cell of Consumer Affairs Department but ultimately all attempts failed and as per advice complainant filed this case for refund of Rs.4,39,000/- which was paid by the complainant to the O.Ps, interest from 1.1.2014 on Rs.4,39,000/- @10% p.a till final payment, damages for harassment, physical and metal agony Rs.2,50,000/-, costs of the case.

            The O.P-2 contested the case by filing written version and has denied all the allegations leveled against him. It has been claimed by the O.P-2 that complainant has suppressed the material facts. It is the case of the O.P that the demand of the O.P amounting to   Rs.2,55,510/-  was not paid by the complainant and instead of that complainant demanded Rs.4,39,000/-with interest which is absurd in law. So, there is no deficiency in service acted upon by the O.Ps and O.P-2 prays for dismissal of the case.

            The O.P-1 did not contest the case inspite of serving summon against it,for which case is running in exparte against O.P-1.

                                                                        Decision with reasons

            We have perused all the documents and report of the Surveyor along with the evidence of the Surveyor , evidence in chief of the complainant  of Kalyan Bhattacharya, the registered valuer and we find that the valuer has specifically mentioned in his evidence regarding the list of materials consumed in the construction and labour for the said construction including wooden plank for shuttering, nails, bamboo props, binding wires, polythene sheets etc. and assessed 790 sq.ft !Rs.125.00 and Tor steel 810kg @Rs.40.00 and add for contingencies @2.00% to above and thereby come to a conclusion to Rs.5,61,000.00.

            We have nothing to disbelieve the evidence in chief of the Surveyor since there is no other valuable report submitted by the O.Ps to departure from the report of the valuer relied by the complainant namely Kalyan Bhattacharya. So, we find that the report of Kalyan Bhattacharya ,the registered valuer, is justified one and he is an empanelled valuer of the Hon’ble High Court at Calcutta and LBS Class-I of KMC  and Empanelled structural Engineer of KMC. So, the valued opinion of Mr. Bhattacharya cannot be overlooked by any competent valuer by the O.P ,even no attempt was taken by the O.P. So, that report is justified. If we consider the report of the valuer Kalyan Bhattachariya ,then we have to hold that O.Ps acted deficiency in service by not constructing the remaining work and arbitrary stopped the work for wrongful gain which is undoubtedly unfair trade practice ,for which , complainant has been able to prove his case beyond doubt.

            Hence,

                                                                        Ordered

That the complaint case is allowed on contest against the O.P-2 and in exparte against O.P-1 .

Both the O.Ps are directed jointly and/or severally to refund Rs.4,39,000/- along with @10% p.a on and from 1.1.2014 to till its realization within 30 days from the date of this order.

Both the O.Ps are directed jointly and/or severally to pay compensation to the tune of Rs. 1 Lac and litigation cost Rs.25000/- to the complainant within 30 days from the date of this order, failing which complainant is at liberty to execute the order through this Forum.

 

Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.Ps 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 complaint case is allowed on contest against the O.P-2 and in exparte against O.P-1 .

Both the O.Ps are directed jointly and/or severally to refund Rs.4,39,000/- along with @10% p.a on and from 1.1.2014 to till its realization within 30 days from the date of this order.

Both the O.Ps are directed jointly and/or severally to pay compensation to the tune of Rs. 1 Lac and litigation cost Rs.25000/- to the complainant within 30 days from the date of this order, failing which complainant is at liberty to execute the order through this Forum.

 

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

 

Member                                                                                                           President