IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 135/S/2013.             DATE OF FILING : 24.09.2013.   

BEFORE  PRESIDENT              : SRI SUBHABRATA CHAUDHURI,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SRI TAPAN KUMAR BARMAN.

COMPLAINANT             : SUBRATA PODDER,

  Flat No.F-4, Dolphin Heights, 2½ Mile,

  Jyoti Nagar, Near Ulka Math, Siliguri – 734 001.     

O.Ps.              1.                       : NITESH PERIWAL,

   Director,

   Amartya Commercial Pvt. Ltd.,

   453, Bidhan Road, Siliguri – 734001. 

                                    2.                     : AMARTYA COMMERCIAL PVT. LTD.,

  453, Bidhan Road,

  Siliguri – 734001.

FOR THE COMPLAINANT         : Sri Rahul Mishra, Advocate.

   F I N A L  O R D E R/J U D G E M E N T

DATE : 28.06.2018.

This is a case under Section 12 of the Consumer Protection Act, 1986.  The complainant’s case in brief is that complainant purchased one flat being No.F-4 in one residential apartment complex named as “DOLPHIN HEIGHTS” at 2 ½ Mile Jyotinagar, Near Ulka Math, Siliguri under Ward No.41 of Siliguri Municipal Corporation consisting of a parking at the ground floor in that G + 4 building by a Registered Deed of Conveyance being Deed No.07962 dated 05.10.2012 after paying the full consideration value of Rs.16,27,200/-.  It is further contended that even before the completion of eight months from the date of said purchase/transfer some major defects of the following nature started appearing in the flat :-

a)       Wall cracks (interior extending to the exterior) in the hall room, master bed room and the other bed room;

b)       Cracks in between wall & roof of the attached and common bath rooms and the kitchen;

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c)       Crack in the wall (interior extending to the exterior) of the balcony;

d)       Dampness of wall adjacent to the attached bath room;

e)       Leakage from the windows of master and the other bed rooms.

It is further stated that the above defects are substantial in nature nor minor or cosmetic and have been caused due to some defects in the construction activity and happened because of the use of substandard material in the construction.  The complainant made the OPs aware of the above defects and requested to rectify the same through several telephonic calls and personal visits.  Even in spite of repeated requests by sending letters for removal of those defects OPs completely ignored the complainant’s request.  The complainant’s letters were not even replied.  The complainant then issued legal notice dated 12.08.2013 and in reply of the said notice dated 16.09.2013 the OP failed to provide any relief to the complainant as it refused to take any measure to rectify the defects and thus it is alleged that OPs have resorted to unfair trade practice and in such circumstance complainant was compelled to file the present case for redressal of his legitimate grievances.  The cause of action as enumerated in the complaint arose against the OPs on 15.06.2013 while the complainant’s letter was received by the OPs which letter of complainant was of dated 14.06.2013.  By filling this complaint complainant has prayed for a direction upon the OPs to rectify the effects as enumerated earlier or to pay a sum of Rs.2,51,707/- as has been estimated by the contractor of civil works and then to a relief of Rs.75,000/- on account of compensation for deficiency in service and restoring to unfair trade practice as well as harassment, mental torture and agony caused to the complainant and a further sum of Rs.7,000/- has been prayed for as litigation cost.             

In this case OPs filed a written version on 24.01.2014 and categorically stated therein that complainant is not entitled to get any relief as prayed for but on the other hand OPs are legally entitled to claim a sum of Rs.69,375/- which OPs spent against extra work and the complainant has not come before this Forum with clean hand and this case has been filed by the complainant only to harass the OPs.  It is repeatedly in the written version that OPs are the renowned developers in the town Siliguri and complainant applied for booking the flat in question after perusal of all necessary documents and proper inspection of the said building.  In the beginning of the written version it is mentioned that the complainant has suppressed the material facts and the present case is bad in law

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for non-joinder and mis-joinder of necessary parties as well as it is emphasized that no deficiency of service is there on the part of the OPs.

On the basis of the pleadings of the parties the following issues are framed for consideration of this case.

1.       Is the suit maintainable in its present form and nature?

2.       Has the complainant any right cause of action to initiate this case?

3.       Has the complainant been suffered after purchase of the flat which is the subject matter of this case continuously due to defects of the flat?

4.       Have the OPs caused deficiency in service against the complainant?

5.       Is the complainant entitled to get the relief/reliefs as prayed for?

In context of this case heard argument advanced by ld advocates of both sides.  Ld advocate for the complainant submits that after purchase of the flat being No.F-4 from the OPs who constructed/developed the said flat in the residential apartment complex named as “DOLPHIN HEIGHTS” at 2½ Mile, Jyotinagar, near Ulka Math, Siliguri under Ward No.41 of Siliguri Municipal Corporation consisting of a parking space at the ground floor of five storeyed residential building through a Registered Deed vide No.07962 dated 05.10.2012 after paying the full consideration value of Rs.16,27,200/- has been suffering a lot due to various defects therein the flat and the OPs while ignored the complainant’s repeated requests for rectification of those defects then the complainant had no other alternative than to institute this case.  Complainant examined himself and adduced evidence as PW 1 and filed some documents and PW 2 is one Debasish Roy, Licensed Building Surveyor of S.M.C. and this PW 2 has categorically stated that on inspection of the flat he found several wall cracks and some major defects in that flat.  One Commissioner was appointed who is a Civil Engineer for physical inspection of the flat and that Commissioner of Siliguri Municipal Corporation submitted report on 17.06.2015 to this Forum after getting the flat of the complainant physically verified by the two Civil Engineers and that report said that the defects as mentioned in the petition of complaint are the true pictures of the flat purchased.  In continuation of argument ld advocate for the complainant further submitted that the contention of the affidavit of DW 1 is absolutely false and ld advocate on the point of bar on jurisdiction or as regards maintainability of this case in the Forum has referred cases of Hon’ble National Commission in RP No.2540 and 2541 both of 2004 and decision to that effect dated 07.10.2005 wherein it is held that the Fora under the C.P. Act, 1986

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are not the Civil Courts though they have trappings of court and the bare perusal of sub-section 1 of Section 12A of the West Bengal Building (Regulation of Promotion of Construction and Transfer by Promoters) Act, 1993 would show that it creates bar on jurisdiction of Civil Court not the Consumer Fora.  It is further argued that Consumer Protection Act, 1986 is a Central Act and the Provisions of the said Act should always prevail over the Regulation of Promotion of Construction and Transfer by Promoters Act, 1993 which is admittedly a State Act and ultimately it is argued that the complainant in this case has proved the matter of deficiency of service against the OPs so the complainant is entitled to get the reliefs as prayed for.

The ld advocate on behalf of the OPs submitted that the case is not maintainable and the complainant has also sold the very flat questioned in this case to one Jaysankar Prasad during the pendency of this case by a Registered Deed being No.116 of 2017 suppressing the fact to this Forum and thus he is not entitled to get relief as prayed for and in this context ld advocate for the OPs referred a case in between M/s Nitesh Color Lab Vs M/s Jindal Photo Film Ltd. reported in (2017) 2 ConLT 169 as passed by the Hon’ble Delhi State Consumer Disputes Redressal Commission on 01.02.2017 and another case in between Professor R.P. Gupta Vs M/s A.K.S. Developers in Revision Petition No.3931 of 2013 before the Hon’ble National Consumer Disputes Redressal Commission where Hon’ble Commission has held that appellant ceased to be a consumer after he had sold the flat.  Since the petitioner is no more consumer, therefore, the complaint filed by him has to be dismissed and accordingly the Revision Petition was dismissed.  In this case it appears as ld advocate of OPs submitted that petitioner’s ld counsel argued that he had filed the complaint in the year 2009 before selling the flat and at the time when he filed the complaint he was a consumer over which Hon’ble National Commission was pleased to dismiss the revision in the case referred. 

Decision with reason

Issue Nos.1 & 2

Both the issues are taken up together for consideration.

From the side of the OPs the point of maintainability of the instant case was raised and agitated during argument which is mainly on the provisions of the West Bengal Regulation of Promotion of Construction and Transfer by Promoters Act, 1993 as attracted to its Section 12A but on going through the principles as

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laid down by the Hon’ble National Commission in the cases as referred earlier from the side of the complainant we are of the considered view that the argument as advanced by the side of the OPs is not maintainable on that score, hence the instant case is maintainable in its present form and nature.  Thus, these two issues including the point of cause of action are decided in favour of the complainant. 

Issues Nos.3, 4 & 5.

It is the case of the complainant that complainant purchased the flat from the OP Promoter and Developers by virtue of a Deed of Conveyance on 05.10.2012.  The instant case was filed when the complainant even after repeated requests to the OPs failed for rectification of the defects of the said flat but it is the main argument of the OPs that the complainant during the pendency of this case already sold out the said flat to one Jaysankar Prasad and to that effect OPs filed the document which is a “Deed of Sale” as registered on 04.01.2017.  We have perused the entire recital of both the deeds one where the complainant is the purchaser/vendee of the flat and the second where the complainant is the seller/vendor of the self same flat.  Each and every clause of the said flat both in these two Registered Deeds including its area is same and identical and there is no doubt in it that this is that flat for which the complainant being a consumer has come before this Forum seeking the relief as mentioned in the petition of complaint.  It can be said without any hesitation that complainant during the pendency of this case has sold out the flat in question suppressing the matter before this Forum.  The principles of equity in this context is required to be remembered on this juncture that he who seeks equity must do equity or he who comes to court must come with clean hands.  The theory of ‘LIS PENDENS’ as enumerated in Section 52 of the Transfer of Property Act is noteworthy to mention here where it is stated that during the pendency in any court having authority within the limits of India excluding the state of Jammu & Kashmir or established beyond such limits by the Central Government of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.  The referred case laws of the OPs orienting such fact and circumstance of the present case where

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the flat has already been sold out for which being a consumer complainant started the case before this Forum is prominently applicable.  In this regard, in a case already mentioned earlier in between Prof. R. P. Gupta Vs M/s. A. K. S. Developers reported in Docid#IndiaLawLib/1269685 wherein our Hon’ble National Consumer Disputes Redressal Commission has observed and held that the appellant ceased to be a consumer after he sold the flat since petitioner is no more consumer, therefore, the complaint filed by him has to be dismissed.  In that case complaint was filed in the year 2009 before selling the flat and at that time petitioner was a consumer but Hon’ble Commission while decided the revision on 07.04.2015 it is seen there from that petitioner admitted that he sold the property in dispute in favour of one Shrikrishma Rastogi on 30.12.2013.  In another referred case, already mentioned which reported in (2017) 2 ConLt 169 it appears that Hon’ble Delhi State Consumer Disputes Redressal Commission on the same principle observed that the vehicle in question in that case had been sold during the pendency of the proceedings before the Consumer Fora, the complainant was not entitled to any compensation.  In view of the above facts and circumstances of the instant case which is on consideration at present before this Forum being enshrined by the above principles as laid down by the afore mentioned Hon’ble higher Forums we are of the view that the complainant is not entitled to get any compensation or any sort of relief or reliefs as there is no justification to allow the prayers of the complainant as because the subject matter of the case which is the flat in question has already been sold out by the complainant to a third party by virtue of a “Registered Deed of Sale”.  The above three issues are thus decided against the complainant.

Proper fees paid. 

Hence, it is,

                      O R D E R E D

that the Consumer Case No.135/S/2013 be and the same is dismissed on contest against the OPs but without any cost.

Let a copy of this order be handed over to each of the parties free of cost at once.