DIST. CONSUMER DISPUTES REDRESAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 45/2015
Date of Filing: Date of Admission Date of Disposal:
22.01.2015 03.02.2015 22.09.2015
Complainant/s = Vs. = O.Ps.
1.Smt. Shefali Das, 1. Pushpendu Chowdhury,
W/o. Sri Gurupada Das, S/o. Late Amalendu Sekhar Chowdhury
AG-340, Hanapara, AF-20, Hanapara, P.O. Krishnapur,
P.O. Krishnapur, P.S. Baguiati, Kol-102,
P.S. Baguiati, Dist- North 24 Parganas.
Kol-102, 2. Tirupathy Construction,
Dist- North 24 Pgs. Regd. Office at AF-20, Hanapara,
2.Sri Haru Das, P.O. Krishnapur,
S/o. Anil Kumar Das, P.S Baguiati, Kolkata-102,
‘Balaji Apartment’ Majherpara, Dist- North 24 Parganas.
P.O. Krishnapur,
P.S. Baguiati,
Kol-102,
Dist- North 24Pgs,
previously residing at B lock-5,
Mahajati Nagar,
P.S. Airport, Kol-81.
Advocate Name for the complainant:- Debal Kumar Pathak and another.
Advocate Name for the OPs:- X.
P R E S E N T :- Smt. Bandana Roy….….….…..President
:- Sri Rabideb Mukhopadhyay….….….Member
J U D G E M E N T
Facts of the case, in short, is that the complainants are the landlords in respect of the property appearing schedule ‘A’ where the half done construction has been made by the O.Ps.
The complainant stated that the O.P. No.1 is the proprietor of O.P. No.2, having its register office at the address as mentioned in the cause title of the petition of complaint and the O.P. No.1 is also a Promoter/ Developer by profession and executed the development work through his proprietorship farm.
The complainant further stated that the O.Ps entered into an agreement for development on 16.07.08 for construction of a multi-storied building in an
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over ‘A’ schedule property under certain terms and conditions as envisaged in the said development agreement dated 16.07.08.
The complainant also stated that it was agreed upon by the O.Ps in the said development agreement dated 16.07.08 that the complainants would be entitled to entire first floor of the proposed building to be constructed in an over the ‘A’ schedule property in usable and habitable condition and complete in all respect along with a non refundable sum of Rs. 6,00,000/- only to be paid in the following manner:
On execution of these present Rs. 2,00,000/-
At the time of 1st roof casting Rs. 2,00,000/-
At the time of 2nd roof casting Rs. 2,00,000/-
And on the date of execution the O.P paid Rs. 1,00,000/- each of the complainants totaling of Rs. 2,00,000/- only.
The complainant further stated that it was also agreed upon by the O.Ps in the said development agreement dated 16.07.08 that the O.Ps shall handover the owner’s allocation meaning the allocation of the complainants in the form of self-contained residential flats within 16thmonth from the date of sanction of the building plan and the sanction of the building plan was accorded by the concerned municipality, i.e. Rajarhat Gopalpur Municiapality on 18.06.09, vide Sl. No.964/08/09.
The complainant also stated that it was also contained in the said development agreement and agreed upon by the O.Ps. that as soon as the building is ready for occupation, the developer / O.Ps shall give notice in writing to the owners/ complainants to take possession of the owners/ complainants allocation.
The complainant further stated that it was further agreed upon by the O.Ps in the said development agreement dated 16.07.08 that the complainants shall execute registered General Power of Attorney in favour of the O.P’s or its nominee to do all acts, deeds and things including transfer of the developer’s/ O.P’s allocation by way of sale to the intending purchasers and pursuant to the said development agreement the complainants executed and registered General Power of Attorney in favour of the O.P. No.1 on the same date i.e. on 16.07.08 registered at ARA-III, Kolkata, vide being No. 3944 for the year 2008. As per the
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said development agreement dated 16.07.08 the complainants immediately handed over and delivered the possession of ‘A’ schedule property in favour of the O.Ps for raising construction of a multistoried building.
The complainant also stated that the O.Ps obtained building plan duly sanctioned on 18.06.09 but willfully failed and neglected to make further payment as per said development agreement dated 16.07.08 as well as failed and neglected to complete the construction of the building and handing over possession of the self-contained flats (entire first floor) of the proposed multistoried building in favour of the complainants and so the O.Ps executed a further/ supplementary agreement on 15.10.10 with the complainants agreeing interalia that since the O.Ps are unable to make payment of Rs. 2,00,000/- to the complainant No.2, so he is entitled to get a self-contained flat on the third floor in exchange of or in lieu of non refundable money of Rs. 2,00,000/- which is specifically mentioned in schedule ‘C’ and paid Rs. 2,00,000/- to the complainant No.1 as her share.
The complainant further stated that after the supplementary agreement the O.Ps neither executed the construction works nor handed over the possession of the self-contained flats in favour of the complainants, though, they made several requests to the O.Ps, but they never agreed to render any service to the complainants.
The complainants also stated that the O.Ps are contractually obliged and liable to complete and finish the unfinished construction works of the Complainants Allocation and since, the O.Ps have failed and neglected to complete the construction works of the Complainants Allocation in habitable condition it was completed at the cost of expenses of the complainants, but till date the O.Ps failed and neglected to pay the aforesaid amounts which the complainants are entitled from the O.Ps as per said development agreement, dated 16.07.08 and said supplementary agreement, dated 15.10.10.
The complainants further stated that there were lots of incomplete and unfinished works in the building of the complainants which has not been done by the O.Ps intentionally and deliberately to harass the complainants. The complainants’ several request and reminders were foiled due to such negligent and willful act of the O.Ps for which reason the complainants are suffering a lot day by day. Hence the complaint.
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The O.Ps have contested the case by way of filing written version.
The O.Ps stated that it is absolutely false that the O.Ps have not completed the Owner’s allocation as in habitable condition and it is also false and fabricated story that there is lot of incomplete ad unfinished works in the Flat of the complainants and / or the O.Ps intentionally did not complete the unfinished works of the complainant’s flat with an intention to harass the complainant and it is also cock and bull story that the complainant on several time requested the O.Ps to complete and finished the unfinished constructional work of the flat and / or the O.P. no.1 did not pay any heed upon the request of the complainant and/ or due to such negligent act and conduct of the O.P. No.1, the complainant has suffered a lot.
The O.P. No.1 further stated that the O.P. No.1 has completed all the works of the building including the flat of the complainants within stipulated period of agreement, but as the complainant not satisfied with the material as specified in second schedule of development agreement dated 16.07.08 as ‘specification of work’ and they themselves want to change the materials of their allotted flats which is not a lot to be paid by the O.Ps, and not only that the complainants themselves directed the meson to do the extra work which are chargeable as the development agreement dated 16.07.10. The O.Ps further stated that the complainant has no right to claim any money from the O.Ps rather the extra charges work has not yet been paid by the complainant and which was paid to the meson and labour by the O.Ps which are to be paid by the complainant to the O.Ps.
The O.Ps also stated that it is false and harassive story that the O.Ps has done any illegal and negligent acts and/ or conduct of the O.Ps harassed the complainant physically and mentally in various way and/ or threatened the complainant with dire consequences and / or the O.Ps threatened that they will not complete and finish the unfinished work of the flat.
The O.Ps further stated that in such facts and circumstances complainants are not at all entitled to get any relief as prayed for. Hence the O.Ps prayed for dismissal of the case.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
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Decision with Reasons
Complainants and O.Ps have submitted affidavit in chief in support of their contention in the complaint. Complainants submitted the documents in support of his claim. We have perused the documents.
Admittedly, on 16.07.08 the complainants handed over and delivered the possession of ‘A’ scheduled property in favour of the O.Ps for raising construction of a multistoried building according to the agreement.
Admittedly, the O.Ps obtained building plan duly sanctioned on 18.06.09, but the complainant alleged that the O.Ps failed and neglected to make further payment as per said development agreement dated 16.07.08 as well as failed and neglected to complete the construction of the building and handing over the possession of the self-contained flats (entire first floor) of the proposed multistoried building in favour of the complainants. So, the O.Ps executed a supplementary agreement dated 15.10.10 with the complainants agreeing inter alia that since the O.Ps are unable to make payment of Rs. 2,00,000/- to the complainant No.2, So he is entitled to get a self-contained flat on the third floor in exchange of or in lieu non refundable money of Rs. 2,00,000/- which is mentioned in schedule ‘C’ of the complaint. After the supplementary agreement the O.Ps neither executed the construction works nor handed over the possession of the self-contained flats in favour of the complainants, though, the complainants made several requests to the O.Ps but they never agreed to render any service to the complainants. The complainants filed a supplementary agreement signed by the complainants and O.P. No.1 with the seal of O.P. No.2.
We have perused the supplementary agreement and in the bottom of page 3 of the said agreement, it is written ink that Sri Haru Das is entitled to get the said flat on the third floor as mentioned herein above in exchange of refundable money of Rs. 2,00,000/-.
On the basis of the agreement the complainants filed several voucher slip showing alleged persons of materials for the purpose of construction.
Ld. Lawyer for the O.Ps relied on the decision 1(2015) CPJ 105(NC) wherin it has been held that Consumer Protection Act, 1986-Sections 24A, 21(b) –Limitation- ‘Condonation of dealy-Service of legal notice not extend period of limitation’. According to the Ld. Lawyer for the O.Ps the entire thing has been completed in the year 2009 and complainants filed this case in 2015 after 6 years of getting possession of the flat. So, the case is barred by limitation.
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Ld. Lawyer for the O.Ps relied on another decision reported in II (2014) CPJ 175 (NC) wherein it has been held that ‘Consumer Protection Act, 1986- Sections 2(1)(g), 21(b)- Housing- Construction work- Deficiency alleged- Rectification not done- Alleged deficiency in service- District Forum allowed complaint- State Commission allowed appeal- Hence revision- Sale Deed in favour of petitioner executed on 01.09.05- Possession was given on 29.10.05- Petitioner tried to prove by affidavit that respondent assured to rectify defects in construction but no such assurance stood proved in absence of any documentary evidence- Complaint was filed on 26.04.06- Had there been deficiency in construction, petitioner should have given notice for removing deficiencies just after taking possession and should have filed complaint immediately – Deficiency in construction work not proved’.
Ld. Lawyer for the O.P relied on another decision reported in IV(2013) 341 (NC) wherein it has been held that ‘Consumer Protection Act, 1986- Sections 2(1)(f), 2(1)(g), 21(b)- Defects in construction- Allegedly roof uneven- Alleged deficiency in service- District Forum dismissed complaint-State Commission allowed appeal – Hence revision- O.P denied that lintel was never opened by O.P or his labourer, but it was opened by the complainant without consent of O.P- Denial cannot be presumed to be admission on part of O.P that mason work was defective-Complainant has not led any evidence except his own affidavit- Defects not proved’.
As the voucher not signed by both the parties, we do not inclined to pass any order on the basis of vouchers.
The O.Ps’ have stated in their affidavit-in-chief i.e. page 4 that ‘Actually the facts remains that the complainants become greedy and want to take more of the constructed area so that subsequently they can sell the same at higher prices and it is clear from the supplementary agreement as because the complainant has forced the O.Ps to alter the owners allocation and allot a flat in the 3rd floor just in lieu of Rs. 2,00,000/- only which is much less then the market value of the flat.
It is also alleged that the unfinished works of the complainants’ flat with an intention to harass the complainant and it is also cock and bull story that the complainants on several times requested the O.Ps to complete and finished the unfinished constructional work of the flat.
O.P. No.1 further stated that the O.P. No.1 has completed all the works of the building including the flat of the complainants within stipulated period of
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agreement, but as the complainants are not satisfied with the material as specified in second schedule of development agreement dated 16.07.08 as ‘specification of work’ and they themselves want to change the materials of their allotted flats which is not a lot to be paid by the O.Ps and not only that the complainants themselves directed the meson to do the extra work which are chargeable as the development agreement dated 16.07.10. The O.Ps further stated that the complainants have no right to claim any money from the O.Ps rather the extra charges for extra work has not yet been paid by the complainants and which was paid to the meson and labour by O.Ps which are to be paid by the complainants to the O.Ps.
We have carefully gone through all the materials on record placed before us.
As the O.P. No.1 more or less admitted the affidavit-in-chief that there was a supplementary agreement about the allotment of a flat in the third floor to the complainants on exchange of refundable money of Rs. 2,00,000/- but O.Ps alleged that such price is less than the market value of the flat.
In such a matter we are not inclined to pass any order in favour of the complainants in respect of the third floor flat.
We have carefully perused all the allegations of the complainants and complainants have not taken any commission for local inspection to prove the complainants’ case and there is nothing on record to believe the complainants’ allegation except which has been stated in the complaint and affidavit-in-chief.
Considering everything, we are of the view that the complainants are not entitled to get any relief in respect of Para ‘A’ and ‘B’ of the complaint.
Hence
It is ordered,
that the complaint be and the same is allowed in part on contest against the O.Ps.
The O.Ps are directed to collect the completion certificate from the Concerned Municipality and to hand over the same to the complainants within one month from the date of this order.
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The O.Ps are also directed to pay the litigation cost of Rs. 5,000/- to the complainants within one month from the date of this order, failing which O.Ps shall have to pay sum of Rs 200/- per day from the date of this order till it realization, as punitive damages, which shall be deposited by the O.Ps in this State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Dictated & Corrected by me.
