West Bengal

Paschim Midnapore

CC/101/2017

Smt. Madhumita Sana - Complainant(s)

Versus

Ritesh Agarwal - Opp.Party(s)

Subrata Das

12 Feb 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

Bibekananda Pramanik, President,

 Pulak Kumar Singha, Member

and

 Sagarika Sarkar, Member.   

   

Complaint Case No.101/2017

 

1. Smt. Madhumita Sana, W/o-Sri Kamal Sana; 2 ) Satish Sana of-D-2,

                           Sohum Residence, Mitra Compound, Sekhpura,

P.O. – Midnapore & P.S.-Kotwali,

District- Paschim Medinipur

                                                                                      ..…….……Complainant.

Vs.

1. Ritesh Agarwal, S/o-Bajrangal Agarwal
2. Bajranglal Agarwal, S/o-Unknown, Director of R. K. Real Estate Developers Pvt. Ltd., 4, Fairly Place, 4^th Floor Room No-436,                P.S.-Hare Street, Kolkata-700001.

Present Address-R. K. Honda Building Mitra Compound (Station Road),                                                           P.O. – Midnapore & P.S.-Kotwali,

District- Paschim Medinipur.

                                                          ………….….Opp. Party/Parties.

                                                     

            For the Complainant  :  Mr. Subrata Das, Advocate.

            For the O.P.                 :  Mr. Kushal Mishra, Advocate.

                                                             

                                                             Date of filing : 21/06/2017.     

                                                             Decided on  : 12/02/2018                             

                               

ORDER

                         Sagarika Sarkar, Member –

                                   This instant case is filed u/s-12 of the C.P. Act, 1986 by the complainants Smt. Madhumita Sana, W/o-Sri Kamal Sana and Satish Sana alleging deficiency in service on the part of the above mentioned O.Ps.

                                                                                                                                                               Contd………..P/2

                                          

                                                                                                                 ( 2 )

                 Case of the complainants in brief is that the complainants are the married couple who purchased a flat at an amount of Rs.24,22,000/- along with the  space of car parking valued of Rs.3,00,000/- from the O.P.-Developer and accordingly an agreement was executed by and  between the complainants and O.P.-Developer on 19/10/2015. It is stated in the petition of complaint that before purchasing the said flat the complainants came to know that the ground floor of the under constructed building was meant for covered car parking space and rest of the vacant space was meant for common car parking area which would be provided to the flat owners only. It is further stated in the petition of complaint that after registration of deed of sale on 01/01/2017 vide no.154/2017 the complainants got possession of the flat no.2-D and  they got a common car parking space  but they did not accept the same. It is stated by the complainants that at the time of registration of sale of deed, O.P. did not disclose that the position of P-10, the allotted car parking space in favour of the complainants, is common car parking space for the flat owners. After knowing the position of the allotted car parking space the complainants sent a letter dated 27/03/2017 to the O.P.-Developer requesting him to provide the covered parking space in the ground floor of the said building to them. Thereafter O.P. replied the same dated 17/04/2017 through his Advocate stating the averment of the complainants was false. It is further stated in the petition of complaint that the O.P.  handed over the complainants a copy of plan where it is found that P-10, the allotted car parking space in favour of the complainants, is a common space for the flat owners and the car parking space of the building is shown in the ground floor of the said building.  It is also stated by the complainant that on 20/05/2017 complainants requested the O.P. to provide car parking space in favour of them in the ground floor of the building but the O.P. refused to do the same which according to the complainants amounts to deficiency in service on the part of the O.P. Accordingly the complainants have prayed for direction upon the O.P. to provide car parking space in the ground floor of the building as per agreement otherwise  to refund Rs.3,00,000/- to the complainants and to pay Rs.75,000/- as compensation and Rs.25,000/- as cost of litigation.

O.Ps. have contested this case by filing written version. Denying and disputing all the material allegations made against them, it is the case of the O.P., that the instant case is beyond the pecuniary jurisdiction of the District Forum. It is also stated by the O.Ps. that as per  agreement along with their flat the complainants have  been given right to park one medium sized motor car  and the allotted car parking space is common with the  other parking space holder. It is also stated by the O.Ps.  that the complainant do not have any transferable right over the parking space allotted to them

                                                                                                                                                                 Contd………..P/3

                                        

                                                                                                                           ( 3 )               

and the complainants were well aware about the position of the allotted parking space which has been positioned and situated and built up exactly same as it has been mentioned in their deed of purchase and as shown in the map annexed with the deed. Hence the O.Ps. have  no deficiency in service on their part. Accordingly O.Ps.  have prayed for dismissal of the case with costs.

To prove their case the complainant no.2 examines himself as PW-1 and during his evidence some documents are marked as exhibit 1 to 4 respectively O.Ps. did not adduce any evidence.                                                                                                    

                                                  Points for  determination

1. Whether  the case is maintainable before this Forum ?
2. Has this Forum jurisdiction to entertain this complaint ?
3. Whether there is deficiency in service on the part of the O.Ps.  ?
4. Whether the complainants are  entitled to get the reliefs as prayed for ?

                                                   Decision with reasons

               Point nos.1 & 2.

The complainants in their petition of complaint, have stated that they agreed to avail the service of housing construction provided by O.Ps.  Accordingly an agreement for sale was executed by and between the complainants and O.P. no1. The complainants in support of such contention have filed agreement for sale dated 19/10/2015 in original.  The complainants have alleged that the O.Ps. did not act in accordance with the terms and conditions of the agreement and such deviation from the agreed terms constitutes deficiency  in service on the part of the O.Ps.

On scrutiny of the agreement for sale (Exhbit-1) dated 19/10/2015, it appears that the complainants  agreed to avail a housing construction service in respect of a flat along with a car parking space to be provided by the O.Ps. at an agreed consideration of Rs.27,00,000/-.

Section 11(1) of the C.P. Act-1986 denotes that subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or service and the compensation, if any, claimed “does not exceed Rupees twenty lakhs”.

In this instant case the value of the service exceeds the upper limit of pecuniary jurisdiction of District Forum and thus this case is not maintainable before this Forum and as such this Forum has no jurisdiction to entertain the complaint for the point of maintainability.

Point nos.1 & 2 are decided accordingly.

                                                                                                                                                               Contd………..P/4

                                        

                                                                                                                         ( 4 )

 

               Point nos. 3 & 4.

                 Since the case is not maintainable before this Forum there is no scope to discuss the merit of this case.

Point nos. 3 & 4 are decided accordingly.                                                                                                             

In the result the petition of complaint does not succeed.

                                  Hence, it is,

                                                          ORDERED

                                   that the consumer complaint case being no. 101/2017 is hereby dismissed for not maintainable before this Forum. The complainants are at  liberty to file the case on same cause of action before the appropriate court of law.

                               Let plain copy of this order be given to the parties free of cost.

                 

                Dictated and Corrected by me

                             Sd/- S. Sarkar                         Sd/-P.K. Singha                       Sd/-B. Pramanik. 

                                  Member                                   Member                                    President

                                                                                                                              District Forum

                                                                                                                           Paschim Medinipur