This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this case states that he is one of the flat owners of Vasundhara Garden, Block – B Apartment situated at 1/1B/1 Uma Kanta Sen Lane, Kolkata – 700 030, P.S. Chitpur, Sri Kamal Kumar Gupta and Sri Jai Narayan Gupta, OPs 4 and 5 respectively executed a general power of attorney dated 30-06-2007 in favour of the OP1, the developer, authorizing and empowering the developer to construct the building and to enter into an agreement for sale with the intending purchasers. The OPs obtained a sanctioned building plan from KMC on 13-06-2008. Being allured and attracted by the advertisement, the complainant approached the Ops to purchase a flat for residential purpose being numbered 1C, having a super built up area of 980 sq. ft. more or less consisting of two bedrooms, one kitchen, one living cum dining room, two bathrooms with verandahs on the first floor of block B including all other common service areas, amenities and facilities at a consideration rate of Rs.13,51,000/- as fixed by the OPs on 26-03-2013, Deed of Conveyance was executed by the OP2 in favour of the complainant. The complainant was assured by OP2 of getting all the common facilities and paid charges for the proportionate facilities like security guardroom, drainage system, boundary walls, reservoirs, lift, staircase etc. But OP2 is not handing over the caretaker’s room, to the flat owners. The OP2 failed to provide completion certificate to the complainant. Moreover, the boundary wall is incomplete, so anybody can enter inside the premises. No security guard is employed because the caretaker’s room is not in possession of the flat owners. The developers used substandard building materials in some areas of the apartment. The safety of the meter room is not ensured, any sort of accident may occur at any time. Construction of the staircase railings also remained unfinished, floor of vehicle parking area remained unfinished, iron grills covering electric meter remained unfinished and naked electric wires in some places need proper covering. The wall of the ground floor, wherein the electric meter boxes of the Block-B are situated got damaged by constant soaking. There are some cracks in the northern part of the first floor through which rain water enters.
The complainant prays to Ld. Forum to pass an order directing the OPs to complete the complete the boundary walls and hand over the caretaker’s room and also to complete the remaining work of the apartment and provide all essential and necessary facilities to which they agreed to provide in terms of Agreement and to provide C.C. to the complained. He also prays for a compensation of Rs.50,000/- for suffering, mental agony, harassment, humiliation and damages.]
In the written version OPs1,2 and 3 state that the petition is not maintainable in law and it is mis-conceived and based on erroneous statements, the petition is bad for non-joinder and mis-joinder of necessary parties. The OP denies all the allegations made against them. The OPs state that the first flat was handed over to Samir Kumar Agarwal on 22-06-2011 and the second flat was handed over to the purchaser on 22-03-2012. At the time of handing over the original possession of the flat to the purchasers including the complainant, it was mentioned in the possession letter that being satisfied with all the terms and conditions which have been enumerated overleaf and being satisfied with the flat and other common facilities the purchasers have accepted the possession letter. After that no question of raising this issue arises. However, the OPs state that the reasonable repairing and maintenance may be done by the OPs within two months if the Ld. Forum allows the OPs to redress the problem keeping in mind of the terms and conditions of the Deed of Conveyance. It is needless to mention here that the problem raised by the complainant shall came under the purview of maintenance clause.
The OPs state that the complainant is not entitled to get any relief. So, for ends of justice, this petition should be rejected.
In this case, notices were served upon OPs 2, 3 and 5, but not on OP4. OP3 entered appearance on 07-11-2014 and represented OP1 to OP4. After appearance of OPs1,2 and 3 on 18-11-2014 and filing of W/V by them on the same day, they did not appear. Complainant files E. Chief on 01-12-2014, but OPs did not. They are very much reluctant to follow the steps. OPs were found absent so the case was heard finally and accordingly we proceed for reasonable decision.
Decision with Reasons
No doubt, in this case, every chance was given to the OP for filing E.Chief from 01-12-2014 to 18-12-2014 but they were very much reluctant to do so although they received copy of E.Chief submitted by the complainant, but they did not file any other document except written version.
On an indepth study of the entire complaint including the written version and further considering the deed of conveyance executed by the OPs in favour of the complainant in respect of the complainant’s flat on 26-03-2013 and also this sanctioned plan of the KMC which was sanctioned by the KMC on 13-06-2008 it is clear that on the ground floor of the said premises there are car parking space, certain area for stair case, vacant portion as car parking space one space for lift and there is one room for caretaker room and one toilet attached to said caretaker room.
Complainant has alleged that OP developer and the owner are trying to sell out the said toilet including the caretaker room to third party but as per sanctioned plan entire ground floor is part and parcel of appurtenancy of the flat owners and under any circumstances OP even after filing written version has not denied that fact and further in the written version OPs 1 to 3 have tried to convince that they have not anyway encroached any portion of the ground floor and has not sold out to any third party. On the other hand, in the written version it is specifically mentioned by the OP that it is specifically in the possession letter that being satisfied with all the terms and conditions which has been enumerated in the overleaf of the possession letter and being satisfied about the flat as well as other owners have accepted possession letter and that is why the OP states that it is being maintained as the common area and facilities and same are being used by the other purchasers of the property then dispute as raised has no cogent ground to raise and considering that version it is clear that OPs have tried to convince that all other flat owners have been using common areas without any resistance, so, complainant’s allegation is false. But peculiar factor is that nowhere in the written version OP has stated specifically that he has never intended to sell out any portion of the ground floor or caretaker’s room attached with toilet outside that OPs developer and others with very bad intention have not denied the allegation of the complainant by stating assertively that as per KMC Plan entire ground floor is completely free from any encroachment and till all other flat owners are enjoying the same facility at the same time. There is no assertion of the OPs that they have already handover the completion certificate to the Flat Owners’ Association or the Flat Owners separately. So, considering all the above facts it is clear that the OPs after filing written version realized that it would not be possible to defend the complainant’s allegation so, they left the fray but even then written version is within the record which simply proves that OPs are trying to sell out the area of caretaker’s room attached with toilet to a third party for benefit but as per provision of law the ground floor in respect of case premises shall be as it is as per sanctioned plan and said part or this ground floor is part and parcel of appurtenancy each and every flat owners of the said premises and OPs have their no right to disturb the flat owners including the complainant in any manner to enjoy the acquired right i.e. appurtenancy right in respect of the flat and the ground floor. Moreover, in the sale deed in schedule 4 of the sale deed it is clear that the complainant has its right to enjoy the lift, pump, generator space one another room for Darwan and other equipments so, it is clear that Caretaker room attached with toilet and other appurtenancy as part of the flat enjoyed is being enjoyed by the complainant and that is mentioned in the third schedule of the deed of sale and 4th schedule speaks about maintenance of the everything that is in respect of lift, water drainage, the electricity, common areas, structure maintaining lift and all other maintenance for maintaining that premises and that shall be proportionately paid by the flat owners then invariably as per provision of law and West Bengal Flat Owners’ Act the flat owners are entitled to get completion certificate from the developer and the landowners in respect of the entire premises and the developer cannot anyway deny and in any portion of the said premises without the consent of the flat owners he has no right to create any hindrance in possessing the entire premises including all other appurtenancy and accessories and Fixture as per third schedule of deed of sale but most interesting factor is that OPs got chance to defend, file evidence in chief but they are found fled away from the fray which simply proves that allegation of the complainant as made by swearing an affidavit and also filing different demand letters and further considering no denial in respect of the allegation of the complainant and also the fact of existence of registered deed of sale executed by the OP support about the enjoyment of the other accessories and fixtures of the said flat including ground floor which is not denied by the OP. So, we are convinced to hold that complainant has been able to prove all the allegations of the complaint against the OPs beyond any manner of doubt and after considering all the materials and documents filed by the complainant and relying upon the documents and the sale deed and other documents we are inclined to hold that OPs no doubt are creating problem in enjoying the appurtenancy of the flats of each flat owners by trying to place some person as tenant in the ground floor Darwan room (caretaker room) and also tried to encroach the portion but by such an act the OPs have attempted to sell the said ground floor caretaker room and bathroom etc to third party what the OPs are not entitled to do so and in the circumstances, we are confirmed that OPs have adopted an unfair practice and deceitful manner of practice. Fact remains the allegation are proved beyond any manner of doubt against the OPs which is no doubt deficiency of service and negligent manner of service and at the same time the deceitful manner of act on the part of the OP to dislodge the flat owners right by any means.
In the result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OPs 1 to 3 with a cost of Rs.10,000/- and same is allowed ex parte against the OP4 without any cost.
OPs are directed to complete the boundary wall including other incomplete work and to handover the caretaker room with toilet and also to complete the rooms, works of the construction and prepare the vehicle parking area and other works as mentioned in the Prayer A of the complaint and that must be completed by the OPs particularly by the OPs1 to 3 within two months from the date of this order failing which for non-compliance of the Forum’s order and for OP’s delay for completion of that work OPs1 to 3 are jointly shall have to pay penal damages at the rate25,000/- per month till completion of all incomplete work, which shall be deposited to this Forum till full satisfaction of the decree. Further OPs are directed to handover the completion certificate in respect of the said premises to all the flat owners including the complainant within two months from the date of this order.
For causing mental pain and suffering and also for compelling the complainant to file complaint to establish the right of consumer and also for complainant’s huge spending of money for such litigation and at the same time for deceitful manner of act on the part of the OPs 1 to 3 OPs 1 to 3 shall have to pay a compensation of Rs.25,000/- to the complainant within two month from the date of this order.
OPs are hereby directed to comply the order as per spirit of the order within the stipulated time as mentioned in the body of the ordering portion and in default penal proceeding shall be started against them for which further penalty and fine may be impose
