PER HON’BLE MR. SAMARESH PRASAD CHOWDHURY,PRESIDING MEMBER

            The instant Complaint under Section 17 of the Consumer Protection Act, 1986 (for brevity, ‘the Act’) is at the instance of a couple/purchasers against the developer/builder on the allegation of deficiency in services on the part of developer/builder in a dispute of housing construction.

          Succinctly put, on 22.04.2016 Complainants had purchased one residential flat from OP No.1 measuring about 1228 sq. ft. super built up area being flat No.2A on the 2^nd floor  along with one car parking space measuring about 120 sq. ft. at Block No.I in a building christened “Bhawani Dreams” lying and situated at Holding No.282/1, Sreema Road, P.S.- Dum Dum, Kolkata-700065, District- North 24 Parganas within the local limits of Ward No.-4 of Dum Dum Municipality at a total consideration of Rs.43,92,800/-.  The said flat has been registered on 22.04.2016 and the possession of the flat in question was also handed over to the complainants on the self same date.  The complainants have alleged that after obtaining possession of the flat, in order to decorate the flat to make it fit for habitation while they were preparing the interior of the flat it was found that the construction was so poor that it was unfit for human habitation. The construction was so weak that whilst trying to install air conditioners, the walls literally broke down and had to be repaired at a cost which was more than the price of the air conditioners.  Whilst installing bathroom fitting, the whole plaster of the walls came down and they had to re-plaster at their own cost. To fix electrical appliances, again the plaster of the walls just came off, whilst drilling in the walls.  The bricks from the walls loosened and started coming out.  The complaints have alleged that thereafter they had continuously followed up with the developer and their representative to repair the flat but the OP had failed to yield any effective response from their end.  Thereafter, the complainants had appointed one Engineering and Consultancy Firm named “Drillers and Engineers” to assess too defects in their flats. M/s Drillers and Engineers had submitted their survey report and also the cost of repairing the flat and also laboratory test conducted by Jadavpur University for bricks and concrete.  The complainant has submitted that the OPs are guilty for supply of defective goods and as such the instant complaint has been filed with prayer for following reliefs viz.- (a) an order directing upon the OPs to release a sum of Rs.21,08,963/- only together with interest thereon @ 6% p.a. for the delay in obtaining claim from the date of filing the claim; (b) a compensation of Rs. 3,00,000/- for harassment and mental agony etc.

          The Opposite Parties by filing a written version disputed the allegation made by the complainants by stating that they had supplied the materials according to the agreed standard in accordance with the fourth schedule (specification) of the agreement for sale dated 22.12.2015 entered between the parties.  The OPs have stated that finding contradictory reports given by M/s Drillers and Engineers and the Jadavpur University approached Contractual Improvement Company for clarification of such contradictory reports and after going through the report they came to a conclusion that the material and construction is of standard quality and no alarming conditions are reflected in the building.  The OPs have also submitted that the total number of flats in the said project is 144 out of which 114 flats have already sold and 99 flats of the said projects the owners have already started residing and they are completely satisfied with their said flats which were made of standard and above average quality.  Hence, the complaint should be dismissed.

          Both the parties have tendered evidence through affidavit.  They have also given reply against the questionnaire set forth by their adversaries.  The parties have relied upon several documents including the reports submitted by M/s Drillers and Engineers, the test report of Jadavpur University and also the report prepared by Structural Improvement Company in July 2017 at the behest of OP No.1/developer.  At the time of final hearing both the parties have also filed brief notes of argument in support of their respective cases.

          Undisputedly,  on 22.12.2015 the complainants  being intending purchasers had entered into an agreement for sale with the OP No.1/developer represented by OP No.2 as its Managing Director to purchase of a self-contained flat measuring about 1288 sq. ft. super built up area being flat No.2A on the 2^nd floor  along with one car parking space measuring about 120 sq. ft. at Block No.I in a building christened “Bhawani Dreams” lying and situated at Holding No.282/1, Sreema Road, P.S.- Dum Dum, Kolkata-700065, District- North 24 Parganas within the local limits of Ward No.-4 of Dum Dum Municipality.  Subsequently, on payment of entire consideration amount, a sale deed was executed in favour of the complainants on 22.04.2016.  It also remains undisputed that on the date of execution of sale deed, the developer handed over the subject flat and car parking space in favour of the complainants through a Possession Certificate.  It also not being disputed that the developer could not obtain Completion Certificate/Occupancy Certificate from Dum Dum Municipality.  After purchase of the flat in question, the complainants took possession of the same.

          Needless to say, after accepting the entire consideration amount it is bounden duty on the part of developer/builder to fulfil three basic requirements viz.-(a) to deliver possession; (b) to execute the sale deed in favour of the purchasers/buyers and (c) to obtain Completion Certificate from the Competent Authority.  Evidently, the OPs have fulfilled all the three basic requirements.

            Now, the whole dispute cropped up regarding deficiency in services on the part of developer in raising construction in accordance with the terms of the agreement.  In other words, the complainants have made specific allegation that after taking possession, while they were preparing the interior of the flat they found the construction was so poor that it was unfit for human habitation and the construction was so weak that whilst trying to install air conditioners, the walls literally broke down and had to be repaired at a cost which was more than the price of the air conditioners.  The complainants have also alleged that at the time of bathroom fittings the whole plaster of the walls came down and they had to re-plaster at their own cost. Again when electrical installations were affixed, the plaster of the walls just came off at the time of drilling in the walls to fix electrical appliances.

          In order to prove the alleged deficiency on the part of the developer, at the instance of complainants, one M/s Drillers and Engineers was appointed by the complainants to submit a report  on Non and Partial Destructive Testings of Newly Built RCC Frame Structured Building  i.e the building where the flat of the complainants is situated. After investigating into the matter, the report has been submitted by one Sri Partha Chakraborty M.E ; B.E. and Sri Arnab Bose B.E..  The said report speaks that considering both the rebound hammer test and core test result the grade of concrete of different structures is M-25.  According to the test result of bricks, it is fall under 2^nd class category.

                   It is also transpired that the complainant has also approached Department of Construction Engineering of Jadavpur University to obtain laboratory test result.  Accordingly, the Department of Construction Engineering in Faculty of Engineering and Technology of Jadavpur University have examined and the test were conducted on the sample provided by Construction Engineering Services.  The said report dated 27.07.2016 indicates that it satisfied the requirement of M-25 grade concrete. In this context, it would be pertinent to record that M/S Drillers and Engineers has also classified the grade of concrete of different structure as M-25.  However, the only difference between the two reports is that in the report of Jadavpur University, it has not been mentioned that the bricks used for construction is under 2^nd class category.

          Evidently, the complainants have filed two reports – one is given by the Jadavpur University and the other is given by one Engineering and Consultancy Firm named the Drillers and Engineers.  However, prior to referring the matter to the above authorities, in all fairness, the complainants should have intimated the developer regarding the collection of materials with regard to such test.  Therefore, the developer did not get opportunity to verify the materials collected by the examiners.   In any case, the report given by the above authorities appears to be contradictory.  The complainants did not take any pain to examine the experts who conducted those tests.  The developer did not get opportunity to test the veracity of those two reports.

          Be it mentioned here that the opposite party/developer has also obtained certificate from one Dipicon Consultants Pvt. Ltd. wherein the Director of the said Company observed that the work has been done and completed to their satisfaction.  In the said report, it has been concluded-

1.    Grade of concrete for different structural members is found satisfactory as per test results obtained from NDT test by M/s Drillers and Engineers and core test by Jadavpur University respectively;
2. Average crushing strength of bricks is 72.10 K.G. /cm which is fallen under category of 2^nd class.  But the average water absorption of bricks is 98.83 % which satisfied characteristics of first class category;
3.    No alarming condition of building is reflected from these test results.

It has been opined that continuous monitoring by an experienced structural rehabilitation consultant is essential for the building.

The fact remains that the complainants have not taken any steps for appointment of any expert through this Commission for ascertaining the actual state of affairs.When there is apparent contradiction in the reports, the complainants should have made a prayer for appointment of an Engineer from the panel of the Commission and had the investigation been done in presence of both sides at the intervention of the Commission, perhaps, a true picture would have come to ascertain the alleged deficiencies.

It is transpired that in the project in question there are 142 flats out of which 99 flats are occupied by the inhabitants.The complainants intended to lodge the complaint as “class action”.But no inhabitant of the said project has lodged any complaint against the developer which signifies that those inhabitants either satisfied with the construction or they have no grievances against the developer.

Therefore, on evaluation of material on record, we have no hesitation to hold that the complainants have failed to prove the alleged deficiencies against the developer/builder in providing services within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act.  As a result, the complaint is liable to be dismissed.

Consequently, complaint is dismissed on contest.  However, there will be no order as to costs.