West Bengal

South 24 Parganas

CC/11/147

PRANAB KUMAR SARKAR. - Complainant(s)

Versus

SMT. NANDITA DAS, PROP. OF M/S NANDITA ENTERPRISE. - Opp.Party(s)

Sri Amit Ghosh.

10 May 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , BARUIPUR, KOLKATA-700 0144

 

      C.C. CASE NO. _147_ OF ___2011__

 

DATE OF FILING : 1.7.2011                       DATE OF PASSING JUDGEMENT:        10. 05. 2016

 

Present                      :   President       :   Udayan Mukhopadhyay.

 

                                        Member(s)    :    Sharmi Basu

                                                                             

COMPLAINANT              : Pranab Kumar Sarkar, of 186, Mahatma Gandhi Road, Flat no.C/4B, Kolkata – 82.

 

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O.P/O.Ps                          :  M/s Nandita Enterprise, 25/1, Diamond Harbour Road, Kolkata- 8 represented by Prop. Mrs. Nandita Das,w/o Sri  Siddhartha Das, P.S. Thakurpukur.

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                                                            J  U  D  G  E  M  E  N  T

 

Sri Udayan Mukhopadhyay, President          

The short case of the complainant is that he is the owner of self contained flat being Flat no. 8, Eastern Side in the second floor of premises no.234/B, Sarkarhat Lane, Kolkata – 700 061 measuring about 540 sq.ft super built up area more or less consisting of two bed rooms, one kitchen cum dinning, one toilet and one balcony along with a covered car parking space in the ground floor of the G+3 storied building together with the ownership of the undivided impartible proportionate share of land along with undivided interest in the common areas and facilities attached therein being KMC premises no.234/B, Sarkarhat Lane, Kolkata –61 . It is the case of the complainant that one agreement for sale dated 14.12.2009 was executed between the O.P as a developer/promoter and Mr. Saroj Kumar Mukherjee  for purchasing the said flat at a consideration of Rs.7,19,000/- and agreement for sale is annexed as annexure A. The complainant after execution of the said agreement approached to SBI, RACPC Jeevan Deep Building 4^th floor, 1, Middleton Street, Kolkata – 71 for house building loan . But after verification by the Bank Authority it came to learn that at the time of execution of agreement for sale dated 14.12.2009 the land owner namely Sri Saroj Kumar Mukherjee was expired and the O.P by misleading and suppressing such facts executed the aid agreement and therefore the bank rejected the house building loan of the complainant ,communicated through a letter dated 13.5.2010. But at that time complainant already paid Rs. 2 lacs to the O.P, for which, the complainant approached the O.P for clarification and thereafter supplementary agreement for sale dated 24.4.2010  was executed when the O.P impleaded the legal heirs of late Saroj Mukherjee, the land owners, as vendors and in the said agreement the O.P undertakes to deliver possession of the flat in question within  31.l5.2010 from the date of execution of supplementary agreement dated 24.4.2010,which is annexed as annexure “C” . It has further stated that legal heirs also executed one power of attorney in favour of Smt. Nandita Das, Prop. Of Nandita Enterprise on 14.1.2009 and after payment of entire consideration money of Rs.7, 19,000/- the O.P executed and registered deed of conveyance in favour of the complainant on 24.9.2010 and delivered possession of the flat . It is pertinent to mention here that the O.P has committed delay of four months for delivery of possession of the flat as per supplementary agreement for sale dated 24.4.2010. It has alleged that during the construction period this complainant wrote several letters to the O.P regarding several incomplete works, defects in construction and inferior quality of materials used in the flat by violating the construction specification as per agreement for sale dated 14.12.2009 . It has alleged that all the door frame of the flat are not made of Sal wood but of inferior quality of wood along with incomplete construction work in the flat. In another letter dated 15.6.2010 complainant disputed about installation of earth electrode. It has further contended that complainant was compelled to settle with the representative of the O.P for the cost of few extra electrical plug point works for Rs.14000/- which the petitioner paid by cheque bearing no.556247 dated 31.8.2010 ,drawn on Central Bank of India. But Inspite of such payment the O.P did not complete such extra electrical works. Complainant also alleged regarding the poor construction of flat , delay in registration of deed of conveyance and non-completion of electrical works including extra work for which the complainant has paid an amount of Rs.14000/- during assessment of few extra electrical plug point  It has further stated that Rs.2,700/- is required to be refunded by the O.P after assessing the excess electrical works. It has also stated that the measurement of car parking space which has been allotted to the complainant has violated the provision of West Bengal Municipal Act as well as the provision of KMC Act. Inspite of several reminders  the O.P remained silent for which complainant got inspected his flat as well as building in question by one Chartered Engineer namely Utpal Kanti Chakraborty , Chartered Engineer and Govt. Registered and Approved Valuer for the purpose of assessment of cost of unfinished works and defective construction , who after inspection of the flat and building submitted a report on 20.11.2010 and assessed an amount of Rs.33,150/- as cost for rectification of the unfinished work and defective works. .  The said valuer also stated that the O.P provided car parking space to the complainant violating the sanctioned plan of West Municipal Act because car parking space allotted was 80 80 sq.ft and garage is situated to the plinth level with steep gradient path and entry passage of 6 ft with such a condition and 80 sq.ft floor area the garage becomes unusable. The report of the Chartered Engineer is annexed as Annexure “   O   “. Thereafter complainant also obtained one report from the Electrical Engineer namely P.K. Sett and submitted the report  which is annexed as annexure “  P  “. Thereafter on subsequent request the O.p repaired and completed the unfinished electrical works . Accordingly complainant against approached Sri P.K. Seth Electrical Expert for causing estimate for the pending normal electrical works as per agreement for sale which has been estimated of Rs.9,767.58  which is annexed as annexure “ Q “. So, the O.P committed gross deficiency as well as unfair trade practice in performance of his rights and duties . The O.p undertook to complete the unfinished construction works and to repair all the defective construction in the flat in question and also undertook to complete electrical installation as per agreement for sale  and also subsequent demand and payment of Rs.14000/- for extra electrical works and also the car parking space which the O.P violated from the sanctioned building plan as well as KMC rules and Municipal Laws . Hence, this case with the prayer to direct the O.P to provide garage space as per sanctioned plan as well as KMC rules and Municipal Rules and to refund cost of extra electrical works Rs.14000/- and Rs. 9,767.58  cost of unfinished electrical installation and to pay Rs.33,150/- as cost of rectification of the unfinished works and defective works of the flat in question . Thus the total claim is Rs.56,917.58 along with interest @12% p.a , compensation of Rs.2 lacs and cost of Rs.10,000/- etc.

The O.P filed written version and has denied all the allegations leveled against him. It is the contention of the O.P that flat is absolutely ready for possession at the time of execution of the agreement for sale with the complainant. It is strongly denied regarding the non-satisfaction of the construction materials, electrical installation and all other things of the flat, because the flat was registered by deed of conveyance by spending more that Rs.60,000/- stamp duty as well as registration charges. So, if the complainant was not satisfied with the work ,definitely the complainant would have cancelled the agreement for sale as well as not to proceed for execution of the deed of conveyance and ask for return of consideration money. It has submitted that complainant himself settled the work of electrification ,for which, this O.P has no part to play, for which this O.P cannot be blamed for the said payment. It has strongly denied that there was no agreement for box grill . The O.P has strongly denied regarding the measurement of car parking space of 80 sq.ft. It has admitted that plinth level is high to avoid water logging in the rainy season ,which was done to save the vehicle of the purchasers. It has strongly claimed that the O.P acted in terms of the agreement for sale. Hence, the O.P prays for dismissal of the case.

Point for decision in this case is whether this case is maintainable in view of the application filed by the O.P on 14.3.2016 and whether there is any deficiency in service on the part of the O.P or not.

                                                Decision with reasons

Before passing the judgment it should be considered whether this case is maintainable or not.

The ld. Advocate of the O.P has relied a decision reported in 2012(III) CPJ page 315 passed by the Hon’ble National Commission, wherein, the Hon’ble National Commission has held that “even when a consumer has boomed more than one unit of a residential premises, it amounts to booking of such premises for investment/commercial purpose. This Commission in the case of Jagmohan Chhabra & Anr. Vs.DLF Universal Ltd. (IV) 2007 CPJ page 199 (NC) in a similar case has held that complaint is not maintainable under the C.P Act, 1986. It had ,therefore, disposed of the complaint with the liberty to the complainant to approach the Civil Court”. The said order has since been upheld by the Hon’ble Supreme Court in Civil Appeal no.6030-5031 of 2008 filed before the Hon’ble Supreme Court stands dismissed vide Apex Court’s order dated 29.9.2008.

In the facts of the present case we maintain the same view and while dismissing the complaint as not maintainable reserve the right of the complainant to approach the appropriate Civil Court to seek his remedy ,if so advised.

Here, in the instant case O.P has filed similar application along with certified copy of the deed, wherein we find that complainant purchased residential flat under P.S. of Purba Jadavpur at a consideration of Rs.3,30,000/- . Thereafter, again he purchased flat at 186, M.G. Road, under P.S. Behala being Flat no.4B at a total consideration of Rs.12,62,349/- and other flat also. Thus we find that complainant purchased this flat not for residential purpose but for commercial purpose and for gaining profit, that is why, this case is not at all maintainable in view of the reported decision of the Hon’ble National Commission which was affirmed by the Hon’ble Supreme Court as stated above.

Since this case is not at all maintainable within the periphery of the C.P Act, 1986 , complainant is at liberty to approach before the competent Civil Court having its jurisdiction to solve the dispute which is the dictum of the Hon’ble National Commission as well as the Hon’ble Supreme Court as stated above.

Since, this case is not maintainable we did not find any reason to enter on the point whether the O.P has acted any deficiency in service or unfair trade practice.

 

 

 

 

Accordingly, it is

                                                            Ordered

That this application under section 12 of the C.P Act, 1986  is not maintainable in view of the reported decision of Hon’ble National Commission reported in 2012(III) CPJ page 315 passed by the Hon’ble National Commission ,which was upheld  by the Hon’ble Supreme Court in Civil Appeal no.6030-5031 of 2008.

However, complainant is given liberty to approach before the competent Civil Court having its jurisdiction within three months from the date of this order.

Thus the C.C. case no. 147 of 2011 be and the same is hereby dismissed as not maintainable.

Let a plain copy of this order be served upon the O.Ps and a copy be handed over to the complainant free of cost.

 

Member                                                                                                                      President

 

Dictated and corrected by me

 

 

 

                        President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

 

Ordered

That this application under section 12 of the C.P Act, 1986  is not maintainable in view of the reported decision of Hon’ble National Commission reported in 2012(III) CPJ page 315 passed by the Hon’ble National Commission ,which was upheld  by the Hon’ble Supreme Court in Civil Appeal no.6030-5031 of 2008.

However, complainant is given liberty to approach before the competent Civil Court having its jurisdiction within three months from the date of this order.

Thus the C.C. case no. 147 of 2011 be and the same is hereby dismissed as not maintainable.

Let a plain copy of this order be served upon the O.Ps and a copy be handed over to the complainant free of cost.

 

 

Member                                                                                                                      President