Date of Filing: 14-08-2015                                      Date of Final Order: 04-04-2018​

Smt. Runa Ganguly, Member

The Factual matrix of the present case is that the Complainant is the owner of three residential flats at SATYAM APPERTMENT and is residing there with her family members. Her husband is a reputed Doctor and familiar with the O.Ps. The O.Ps are the Owner/Directors of Reputed Construction Pvt. Ltd. and offered to sale some flat in SATYAM APPERTMENT also published a Brochure. In this regard the Complainant entered into an agreement for purchase a flat–D at 2^nd floor vide Agreement dated 31.12.09 with proportionate share of land at a total consideration of Rs.9,05,250/- and Rs.1,00,000/- was also settled for the space of car parking. The Complainant paid some money as advance to O.P. for execution of the said agreement. During the course of agreement it was settled that the total consideration shall be finally determined at the time of delivery of the flat on the basis of actual measurement of flat including super built areas proportionate common spaces. Subsequently, after completion of the said construction the O.P. No.2 to 4 under the common Seal of the Company sold the flat measuring 600 Sq. ft. covered area and 720 Sq. ft. super built area with undivided proportionate share of land at a total consideration of Rs.8, 59,900/- through a registered deed of sale dated 28.02.14 and handed over the possession of the same to the Complainant. In the said deed some terms and condition are embodied by the said vendors and the developers. Unfortunately, the facilities in the above flat which were agreed / promised to be given through agreement have not been complied with by the O.Ps during the time of handing over the possession of the said flat. There are also some unfinished works and the O.Ps assured that they will finish the same within a short period. The O.Ps also fail to hand over important document relating to the said flat to the Complainant. The Complainant approached to the O.Ps and they again assured him. Relying upon them the Complainant waited for a considerable time as their relation was cordial.

Thereafter the Complainant again purchased another two flats in the top floor (6^th floor) of the said apartment from the O.Ps through two separate registered deed of sale against valuable consideration. Through the deed No.1-3658/14 the Complainant purchased the flat Being No. B on the 6^th floor covering an area of 950 sq. ft. with the car parking space measuring 100 sq. ft. at a total consideration of Rs.10,50,000/- Through the  deed No.1-3659/14 the Complainant purchased the flat being No. C on the 6^th floor covering an area of 800 Sq. ft. at a total consideration of Rs.7,20,000/-. After purchasing the above two flats the Complainant noticed that the roof top has not been properly completed also the O.Ps did not make any arrangement for completion of unfinished work. The O.Ps also did not supply the necessary documents in connection of the above three flats.

By not getting the necessary documents in connection of the alleged flats the Complainant faced troubles for which finding no other alternative served notice on 12.10.2014 to the O.P. No.1&4 for obtaining the said documents and for finishing the entire work. In reply the O.P. No. 3 asked the Complainant to hand over the flats to them by not sorting out the problem as pointed out by the Complainant. After getting that reply the Complainant again issued a letter dated on 29.11.14 to the O.P. No. 1 and O.P. No.3.

In spite of such correspondences the O.Ps failed to solve the problems as pointed out by the Complainant for which the Complainant suffered huge mental pain and agonies. The O.Ps were reluctant to complete the unfinished work also to supply the essential documents such as Completion Certificate, Occupancy Certificate etc. in connection with the three flats. In this way the O.Ps harassed the Complainant resulting serious inconvenient to the complainant by not getting the necessary papers as to his flat No. D in 2^nd floor and flat No. “B” and “C” in 6^th floor. The Complainant has not been able to mute in the Municipal settlement record in absence of the proper documents. The O.Ps intentionally did not settle the disputed matter of the Complainant for which finding no other alternative the Complainant has filed the present case seeking relief and redress before this forum as incorporated in the prayer portion of the complaint.

The O.Ps are contested the present case by filing their W/V and contending inter-alia that the present case is not maintainable before this forum in its present form as well as in law. The answering O.Ps contented that the transaction was a commercial transaction and for which it is barred under the C.P. Act. The disputes between the parties are civil in nature and remedies if any lies before the competent civil court.  The O.Ps further contented that there is no consumer relationship by and between the parties for which this forum has no jurisdiction to try this case.

The main contention of the O.Ps is that  the Complainant approach the O.Ps for purchasing one residential accommodation for her and her family members and accordingly an agreement for sale dated 31.12.09 has been executed by an between the parties. The O.Ps executed deed of conveyance in favour of the Complainant on 28.02.14.  The Complainant occupied the flat on 04.06.11 and resided their without payment of total consideration amount. Thus, from the date of possession and till the date of execution of deed of conveyance the Complainant did not raise any objection regarding any deficiency as to the construction of the building. Surprisingly, after execution of deed of conveyance the Complainant started problem by raising some vague demand. As per desire of the Complainant the O.Ps registered two nos. of car parking space in favour of the Complainant and there is no dispute. The Complainant for illegal action put up a false story and demanded absurd amount. The O.Ps denied the all allegation made by the Complainant in para 5 to 14. As per the terms and condition the O.Ps provided all sorts of facilities. Therefore there is no question of deficiency in service. It is evident from the letter dated 07.11.11 that the Complainant occupy the flat on 04.06.11 unlawful before handover of the possession by the owners and is residing with her family members since then without total payment of settled amount.

The original fact is that the Complainant is not paying any maintenance charges of Rs.2, 34,000/- at the rate of Rs.1000/ per month for her three flats being used by her since 04.06.11. The O.Ps demanded the maintenance charges of Rs.2, 34,000/- (For 78 months) up to November 2017 for three flats as such the Complainant has filed the present case.

By putting all above the O.Ps stated that they have no deficiency in service and prayed for dismissal of the present case with cost.

In the light of the contention of the parties, the following moot points came up for consideration to reach a just decision.

POINTS  FOR  CONSIDERATION

1. Is the Complainant a Consumer as per Section 2(1)(d) of the C.P. Act, 1986?
2. Has this Forum jurisdiction to entertain the instant complaint?
3. Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
4. Whether the Complainant is entitled to get relief/reliefs as prayed for?

DECISION WITH REASONS

We have gone through the record very carefully and perused the evidence on affidavit of the parties. Perused the entire documents in the record also heard the argument advanced by the parties at a length.

Point No.1.

Evidently, the Complainant booked a flat to the O.Ps for which he paid some consideration money for purchasing the said flat. Thereafter, she purchased another two flats from the O.Ps. Accordingly, both are entered into an agreement. Thus, the relation between the Complainant and the O.Ps so established from the record we are convinced to hold that the Complainant is the Consumer of the O.Ps u/s 2(1)(d)of the C.P. Act, 1986.

Point No. 2.

All the O.Ps are the resident of this district and carrying on their business within this district i.e. within the jurisdiction of this Ld. Forum. Thus, as per section 11 of C.P. Act this Forum has territorial jurisdiction to try this case. Moreover, the complaint value is far less than the prescribed limit. Hence, this Forum also has the pecuniary jurisdiction to entertain the present complaint. Thus, the above two points are decided in favour of the Complainant.

Point No. 3 & 4.

Both points are taken up together for convenience of discussion and for the sake of brevity also to avoid repetition.

Undisputedly, the Complainant with a desire to purchase a flat entered into an agreement with the OPs on 31.12.09. The Complainant purchased the one flat No. “D” in 2^nd floor as per the agreement through a registered deed of sale dated 28.02.14. It is the case of the Complainant that after taking the possession of the said flat measuring 600 Sq. ft. she noticed that the facilities inside the flat which were agreed upon has not been compiled by the O.Ps also the entire work are not finished. Thereafter the Complainant again purchased another two flats in the top floor (6^th floor) of the said apartment from the O.Ps through two separate registered deed of sale against valuable consideration. Through the deed No.1-3658/14 the Complainant purchased the flat Being No. “B” on the 6^th floor covering an area of 950 Sq. ft. with the car parking space measuring 100 Sq ft. at a total consideration of Rs.10,50,000/- and through the  deed No.1-3659/14 the Complainant purchased the flat Being No. “C” on the 6^th floor covering an area of 800 Sq. ft. at a total consideration of Rs.7,20,000/-. The Complainant noticed that the in spite of repeated requests the O.Ps are very much reluctant to complete the unfinished works and did not supply the documents related with the flats.

The pleading of the O.Ps is that the Complainant occupied the flat on 04.06.11 and resided their without full payment of consideration amount The Complainant makes full payment on 23.02.14. During this period the Complainant never raised any objection regarding the deficiency as to the construction work.

Annexure-‘A’ clearly goes to show that the price of flat No. D of 2^nd floor of “SATYAM APPARTMENT” was fixed at Rs.9,05,250/- and the value of car space of Rs.1,00,000/- was fixed be paid by the purchaser separately. The Complainant paid Rs.1,86,500/- as down payment to the O.Ps out of total consideration amount.

The price of the flat No. B in the 6^th floor measuring 950 Sq. ft. with the car parking space measuring 100 Sq. ft. at a total consideration amount of Rs.10,50,000/-. The flat No. C on the 6^th floor covering an  area 800 Sq. ft. at a total consideration of Rs.7,20,000/-.         

On perusal the Annexure D the Deed of Sale of flat it reveals that the Complainant purchased the flat No. “D” with a value of Rs.8,59,900/-. The Complainant paid total amount on 23.02.2014 for the said flat. It is evident from the letter dated 07.11.2011 that the Complainant took possession of the flats on 04.06.2011 i.e. long before execution of transfer deed.

Annexure “C” goes to show that the total consideration amount of the flat No. “B” on the 6^th floor was 10,500/- and the Complainant make full payment on 28.03.2014.   The Complainant took possession of flat long before the date of execution of transfer deed. It is very difficult to believe that the Complainant waited till 12.10.2014 i.e. about 8 months from the date of execution of the transfer deed to inform the defects in his flat. The letter dated 07.11.2011 reveals that the Complainant wrote a letter to the O.Ps by alleging unfinished works of her flats.

Schedule-C reveals what kind of materials be used for finishing/ decorating the interior side of the flats like as Ceramic tiles, steal glazed shatter, concealed Electric wiring, plaster of Paris wall etc. The Complainant alleged that the O.Ps constructed the flats by using cheap quality materials that is contrary of the agreement between the parties.

In this juncture, it is pertinent to mention that the Complainant has failed to adduce any documentary evidence e.g. expert report from any expert to establish that the O.Ps violated the terms and conditions of the agreement. The Complainant has not even applied from appointment of any expert to ascertain as to whether there was any defect in construction as per agreement between the parties.

During the course of argument the Ld. Agent for the Complainant vehemently argued that the O.Ps did not provide any completion certificate, occupancy certificate to the Complainant.

The Ld. Agent for the O.Ps by filing a petition stated that due to their ignorance they done blunder and did not make any application to concerned Municipality for obtaining the completion certificate. The Ld. Agent for the O.Ps frankly stated that they have already filed a petition to the Chairmen, Cooch Behar Municipality for the same.

On hearing the both sides and on consideration the pleading of the O.Ps it seems to us that O.Ps have been able to show their bonafide by preferring a petition to the Municipality though in a belated stage. Considering the above facts and circumstances it appears that the O.Ps failed to handover the completion certificate and occupancy certificate within a reasonable time to the Complainant who is the owner of the flat No. D in 2^nd floor, B and C in the 6^th floor of “SATYAM APPARTMENT”. The O.Ps also did not care about the repeated reminder/ request made by the Complainant. Thus, this action and inaction on the part of the O.Ps certainly be termed as deficiency in service for which the Complainant must be compensated.

In the light of the foregoing discussion and the materials made available in the record together with the attitude of the parties we are inclined to hold that by not handing over the necessary documents to the Complainant even after receiving the full amount in connection the purchased flats the O.Ps proved their deficiency in service.

As it is already prove that the O.Ps have deficiency in service, the Complainant is entitled to get compensation as the forum may deem fit and proper.

Hence,

it is Ordered,

That the complaint Case No. CC/76/2015 be and the same is allowed on contest with cost of Rs. 5,000/-.

The O.Ps are hereby directed to pay the Complainant Rs.10,000/- as compensation for their deficiency in service. The O.Ps are further directed to supply the Completion Certificate to be received from Cooch Behar Municipality along with the occupancy Certificate to the Complainant by sixty (60) days. The entire order must be complied by the O.Ps jointly within 60 days failure of which the O.Ps shall have to pay Rs.50/- for each days delay to the Consumer Legal Aid Account.

Let plain copy of this Final Order be made available and be supplied free of cost to the concerned party/Ld. Advocate by hand/Registered Post with A/D forthwith for information and necessary action, as per Rules. The copy of this order also be available in the following website :

confonet.nic.in

Dictated and corrected by me.