Date of Filing: 16-07-2015 Date of Final Order: 04-04-2018
Smt. Runa Ganguly, Member
The Factual matrix of the present case is that the Complainant is a reputed Doctor in this district having practice since a long period. He intended to purchase a flat and contacted the O.Ps who are familiar with him. The O.Ps being the owners of a landed property formed a construction company in the name and style 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 (C-2) 2nd floor vide Agreement dated 31.12.09 with proportionate share of land at a total consideration of Rs.7,59,900/- 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 740 Sq. ft. covered area and 888 Sq. ft. super built area with undivided proportionate share of land at a total consideration of Rs.9,05,250/- through a registered deed of sale dated 27.02.14 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. The Ops also fail to hand over important documents relating to the said flat to the Complainant. The Complainant approached to the O.Ps several times for sort out the problem he faced but no fruitful result came out. Moreover, the O.Ps did not provide the cars space as agreed upon in spite of several requests made by the Complainant also the O.Ps did not make any arrangement for completion of unfinished work.
By not getting the necessary documents in connection of the alleged flat the Complainant faced troubles for which finding no other alternative served notice to the O.Ps for obtaining the said documents. The Complainant again issued a letter dated on 10.11.14 to the OP No. 1 and OP No.3. In spite of such correspondences the O.Ps failed to solve the problems as pointed out by the Complainant and then the Complainant serve a legal notice dated 30.03.15 with a demand for getting the necessary documents also requesting them to complete the unfinished work. The O.Ps even after receiving the legal notice did not care about also showing their indifferent attitude to solve the problems of the complainant. This is nothing but deficiency in service on the part of the O.Ps as well as they are negligent enough in providing their service as agreed upon. In this way the O.P motivatedly harassed the Complainant resulting serious inconvenient to the Complainant by not getting the necessary papers as to his flat No. C/2. 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 OPs 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 OPs contented that the transaction was a commercial transaction and for which it is barred under the CP 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 O.Ps executed deed of conveyance in favor of the Complainant on 27.02.14 (Registered on 28.02.14) with his full satisfaction and the Complainant paid the total consideration money on 23.02.14. Before that, an agreement for sale dated 31.12.09 has been executed by and between the parties. The Complainant occupy 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 raising some baseless demand. The Complainant himself refuses to accept any car parking space at the time of registration of total deed of conveyance on 27.02.14. The Complainant for illegal action put up a false story and demanded absurd amount. 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 his family members since then without total payment of settled amount. The original fact is that the Complainant is not paying any maintenance charges of the flat being used by him since 04.06.11 at the rate of Rs.1,000/ per month as per agreement dated 31.12.09. Moreover, the Complainant illegally occupies more than the covered area which is normally about 1200 Square feet. The O.Ps requested the Complainant on or before date registration to vacate the excess space but till today he has not honored his promise. The O.Ps demanded the maintenance charges of Rs.78,000/ (For 78 months) up to November 2017 for which the Complainant has filed the present case.
By putting all above the O.Ps 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
- Is the Complainant a Consumer as per Section 2(1)(d) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the O.Ps any deficiency in service as alleged by the Complainant and are they liable in any way?
- 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. Perused and considered also the original documents filed by the parties.
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. 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 O.Ps on 31.12.09. The Complainant purchase the said flat as per the agreement through a registered deed of sale dated 27.02.14. It is the case of the Complainant that after taking the possession of the said flat measuring 740 Sq. ft. he 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. The O.Ps also did not provide the Complainant car parking space as per agreement. The Complainant made several contact to the O.Ps for obtaining the said facilities but all efforts were in vain.
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 made full payment on 23.02.14. During this period the Complainant never raised any objection regarding the deficiency as to the construction work. The Complainant neither paid the consideration amount for car parking space nor claimed the car parking space in writing just after the registration of the flat.
Annexure-‘A’, the Deed of Agreement for Sale of Flat, clearly go show that the price of flat No. C of 2nd floor of ‘SATYAM APPARTMENT’ was fixed at Rs.7,59,900/- and the value of car space of Rs.1,00,000/- was fixed be paid by the purchaser separately. On perusal the documents made available in the record we do not find any scrap of papers to show that the Complainant accepted the offer of car parking space or make payment of Rs.1,00,000/- for car parking space.
Annexure “B” reveals that the total consideration amount of the said flat is Rs.9,05,250/- and the Complainant paid the full amount on 23.02.2014. The O.Ps pleaded that the Complainant took possession of his flat on 04.06.2011 but do not find any scrap of paper to show that the Complainant occupied the flat long before execution of transfer deed. The Complainant alleged that cheap quality of materials have been used in the flats he purchased also there was some unfinished work. He wrote letters, sent lawyers notice for completion the whole work also for supplying necessary documents in connection to his flat.
On perusal the Schedule-‘B’ of deed of agreement for sale of flat it reveals that the Complainant booked the flat with down payment of Rs.1,85,000/- and it was settled that the Complainant will make payment of the rest amount in some installments.
Schedule-C reveals what kind of materials be used for finishing/ decorating the interior side of the flat like as Ceramic tiles, steal glazed shatter, concealed Electric wiring, plaster of Paris wall etc. The Complainant alleged that the O.Ps constructed the flat by using cheap quality materials that is contrary to 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 for 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 for which the Complainant has been suffered a lot.
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 Ops frankly stated that they 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 the O.Ps 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. C/2 of “SATYAM APPARTMENT”. The O.Ps also did not care about the repeated reminder/ request made by the Complainant for which the Complainant suffered huge mental pain and agonies. 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 alleged flat, 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/67/2015 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 necessary documents such as 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.
