IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

MURSHIDABAD AT BERHAMPORE.

CASE No.  CC /57/2014.

 Date of Filing: 26.05.2014.                                                                           Date of Final Order: 13.01.2016

Complainant: Subrata Das, S/O Late Dinesh Ch. Das, 20, A.C. Road(South), P.S. Khagra,

                        P.S. Berhampore, Dist. Murshidabad.

-Vs-

Opposite Party: Partha Sarkar, S/O Late Priya Ranjan Sarkar,

                          20, Amar Chakraborty Road(South), P.O. Khagra, P.S. Berhampore Town,

                        Dist. Murshidabad.

                                                               &

                         N  I  N  E                 O  T  H  E   R  S

                       Present:  Sri Anupam Bhattacharyya   ………………….President.                                 

                                                Smt. Pranati Ali ……….……………….……………. Member

FINAL ORDER

Sri Anupam Bhattacharyya, Presiding Member.

 The instant complaint has been filed by the complainants’ u/s 12 of the C. P. Act, 1986 praying for completion of incomplete work of the building and for execution and registration of the sale deed of the concerned flat in favour of the complaint as prayed for.

The complainants’ case, in brief, is that the OP Nos. 1 to 4 are the landowners of proposed building and the OP Nos. 6 to 10 are the developers-partners of Shine Infrastructure. The complainants entered into agreement for sale for purchasing flats. After execution of agreement for sale while the Ops left the construction incomplete in spite of repeated requests and refused to execute the deed of sale of the said flat on 20.10.13. The complainant altogether paid Rs.6, 00,000/- out of consideration money of Rs. 11, 70,000/- . The Ops unlawfully retained the said amount of Rs.6, 00,000/- and unable to deliver the possession of the flat for incomplete work. They have adopted the unfair trade practice. The complainant filed this complaint for a direction upon the Ops to complete the unfinished work of the flat and execution of the sale deed.   Hence, the instant complaint case.

The Written Version filed by OP Nos. 1 to 4 owners, in brief, is that the OP Nos. 1 to 4 being the owners of the property on which construction of multi storied building known as Priya Ranjan Abasan has been constructed entered into agreement of 07.09.11 with OP Nos. 5 to 10 for developing his land by constructing building thereon. In terms of the said agreement responsibility and liabilities was led upon this OP conveying the tile of the said property but they were not responsible or liable so for as construction of the flat including interior or outer provisions provide in any agreement  entered into by the OP Nos. 5-10 and the intending purchasers.  In terms of the said agreement OP No.5-9 approached to the OP No.1-4 for executing deed of sale in favour of the complaints in respect of their finished flat of the Priya Ranjan Abasan. Complaints being satisfied as to the construction as well as all provisions as agreed between complaint one the one part and OP No.5-9 on the other part paid consideration money as agreed with the OP No.5-9 . This OP only for conveying their tile in respect of super built area of the said flat participated in the sale deed executed in favour of the complaints along with OP No.5-9 with whom the complaints entered into agreement for sale purchasing the said flat. This OP have no responsibility for constructional agreement with the complainants concerning the construction work of the said flat as per specification of the agreement entered into the complaints the one part and Op No.5-9 of the other part. The OP No.1-4 have not receipt any money from the complainants and for any purpose whatsoever excepting the value of the proportionate share of the super built area of the flat on which the construction has been carried on. Accordingly OP No.1-4 could not held or liable for finishing work of any of the said flat left undone by OP No.5-9. This Ops further submits that the complaints are stopped from claiming any compensation against the OP Nos. 1-4 as he purchased the said flat being satisfied the construction work as agreed between them and OP No.5-9 and for that the complaint is liable to be rejected. Hence, the instant W/V.

The Op Nos. 6,9 & 10 Developer, in brief, is that the complaint Nos.1 had sworn in affidavit only on his behalf and not for other person. The case is barred by of the Arbitration and Conciliation Act as pernpara-15 of the agreement for sale. The complainants have admitted that they have got registered sale deed and possession of flat and possessing for more than two years. The approached to Berhampore Promoter Association and Berhampore Municipality but they are not parries to this case and they have not appeared to the Ops Developers. Thus there is no cause of action and for that the complaint is not maintainable. Hence, the instant maintainable petition.    

Considering the pleadings of both parties the following points have raised for disposal of the case. 

Points for consideration:-

1. Whether the case is maintainable or not?
2. Whether there is any cause of action to file this case?
3. Whether the case is barred by Principle of waiver, estoppels and acquiescence? 
4. Whether the complainants are entitled to get relief as prayed for?
5. To what other relief/reliefs the complainants may get.         
6.  

                                                                       Decision with reasons.

Point Nos. 1 to 5.

            All the points are taken up together for the sake of convenience.

            The instant complaint is for completing the incomplete construction and for execution of sale deed in favour of the complainant.

 The complainants’ case, in brief, is that the OP Nos. 1 to 4 are the landowners of proposed building and the OP Nos. 6 to 10 are the developers-partners of Shine Infrastructure. The complainants entered into agreement for sale for purchasing flats. After execution of agreement for sale while the Ops left the construction incomplete in spite of repeated requests and refused to execute the deed of sale of the said flat on 20.10.13. The complainant altogether paid Rs.6, 00,000/- out of consideration money of Rs. 11, 70,000/- . The Ops unlawfully retained the said amount of Rs.6, 00,000/- and unable to deliver the possession of the flat for incomplete work. They have adopted the unfair trade practice. The complainant filed this complaint for a direction upon the Ops to complete the unfinished work of the flat and execution and registration of the sale deed.

 On the other hand the case of Op Nos. 1 to4-owners of the building is that the developers are responsible for incomplete construction and for finishing the same as prayed for.

In this regard the complainant No.2 has filed a petition on 31.10.14 praying for expunge of Op No.1 to 4 on the ground that this complainant has no grievance against these OP Nos. 1 to 4-owners and he signed the complaint petition for the representation that the complaint will be filed

against the promoters for completing incomplete finishing work.

            In this case Op Nos. 7 and 8 have not filed any written version and the case has been taken up ex parte against them ex parte.

No objection has been filed by any other petitioners as well as the Op Nos. 6 to 10 Developers.

In this case Op No.6,9 & 10 Developers have filed a non-maintainable petition mainly on the ground that is case is barred by Sec. 5 & 8 of Arbitration and Conciliation Act.

This case is now taken up for hearing ex parte against Op Nos. 6 to 10 Developers.

From the record it appears that the partnership Firm Op No.5 has been dissolved and relevant Notary certificate dt. 30.1.2014 showing dissolution of such partnership firm has been filed.

No objection has been filed from either side. Accordingly, Op No.5 –the partnership firm was expunged.

Against the maintainability petition being barred by Sec.5 & 8 of Arbitration & Reconciliation Act the ld. lawyer for the complainant has advanced argument referring the reported decision in (2005)1 WBLR(SC) 385 that the case is maintainable.

In this reported decision it has been held that the remedy arbitration available to the complainant does not bar the jurisdiction of the consumer forums and the consumer forums are not under an obligation to refer the matter to the Arbitral Tribunal.

Relying upon the aforesaid reported decision we can safely conclude that this case is maintainable.

Now, the relief prayed for in this case is only for completion of incomplete finishing work.

To justify the claim the complainant has filed the agreement for sale.

Admittedly, the complainants have got possession of their respective flats and got the concerned sale deed executed and registered.

The Ops-Developers have raised the principle of estoppels in their non-maintainability petition on the ground that the complaints have got possession and sale deed registered.

But, they have not filed any document challenging the claim as to unfinished work of the building.

The case being ex parte against Op Nos. 6 to 10-Developers and for absence of any rebuttable evidence against incomplete finishing work as per terms of agreement for sale we have no other alternative but to conclude that the complainant is entitled to get relief in respect of completion of incomplete finishing work in terms of agreement for sale as prayed for.

In this case the complainant No.2 only has prayed for expunge of OP Nos. 1 to 4 as they have no grievance against them. In this petition there is no signature of the advocate. Other complainants have not prayed for expunge of those OPs. also, there is no specific argument of the ld. lawyer for the complainant against the OP-owners seeking relief from the OP-owners.

But, we find from the averment of the OP-owners in their Written Version that they received share in respect of the consideration money and for that we are of view that the OP-Owners cannot avoid the liability entirely. In this regard we are of view that the OP-owners are to see that the OP-Developers perform the incomplete finishing work as prayed for in terms of agreement for sale.

Considering the above discussion as a whole we find that all the points are disposed of in part in favour of the complainant and as such the case for completion of complete finishing work of the Priyaranja Abasan in terms of agreement for sale as prayed for be allowed.

Hence,

                                                                 Ordered

that the Consumer Complaint No. 57/2014 be and the same is allowed on contest against the OP Nos. 1 to 4 and ex parte against the OP Nos. 6 to 10.

The OP Nos. 6 to 10 are directed to complete the construction work as per agreement within two months from the date of receipt of this order and Op Nos. 1 to 4 are to see that the incomplete work be completed within the stipulated period and to execute and register the sale deed in respect of the impugned flat within two months after completion of work.

In default Ops are to pay Rs.50/- as find for each day’s delay and the amount so accumulated shall be deposited in the Consumer Legal Aid Account.

There will be no order as to cost.

Let a plain copy of this order be made available and be supplied free of cost, to each of the parties on contest in person, Ld. Advocate/Agent on record, by hand under proper acknowledgment / be sent forthwith under ordinary post  to the concerned parties as per rules, for information and necessary action.