DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO-42/2017
Date of Filing: Date of Admission: Date of Disposal:
31.01.2017 17.02.2017 11.01.2018
Complainant: A. Sagiruddin Azad, 104/A, 1st Floor (Right Side),
Gopal Lal Tagore Road, P.O. & P.S.- Baranagar,
Kolkata-700 036.
B. Husneyara Azad, 104/A, 1st Floor (Right Side),
Gopal Lal Tagore Road, P.O. & P.S.- Baranagar,
Kolkata-700 036.
Vs.
Opposite Parties: 1) Sri. Barun Roy,
The Partner of M/s. Maa Durga Construction,
185, B.K. Maitra Road, P.O. & P.S.-Baranagar,
Kolkata-700 036.
2) Smt. Sumita Biswas,
The Partner of M/s. Maa Durga Construction,
204, B.K. Maitra Road, P.O. & P.S.-Baranagar,
Kolkata-700 036.
3) Sri. Debasis Lodh,
The Partner of M/s. Maa Durga Construction,
13, Kalinath Munshi Lane, Kolkata-700 036.
4) Sri. Kamal Shaw,
The Partner of M/s. Maa Durga Construction,
290, Gopal Lal Tagore Road, P.O. & P.S.- Baranaga,
Kolkata-700 036.
P R E S E N T :- Sri Siddhartha Ganguli ….………………………Member.
:- Smt. Silpi Majumder………………………………Member.
ORDER: 08
This complaint is filed by the Complainants u/S 12 of the Consumer protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not provide the completion certificate in respect of the questioned flat and complete some incomplete works in the common area as well as allegation have been made in respect of defective construction of the bathroom and the floor of the room.
The brief fact of the case of the Complainants is that they have purchased 580 square feet ownership flat from the OPs at the cost of Rs.15,95,000/- excluding registration and other charges which was partially financed on loan by LICHFL. The possession letter was issued by the four partners of Maa Durga Construction on 30.04.2015. There are some pending incomplete works, which the OPs did not bother to complete such as-
- Seepage in the bed room, dining hall and bathroom ceiling and stair case side wall of the questioned flat. As a result several ring type water spot are spreading deeply day by day on the ceiling of the bed room, dining hall, bathroom and wall of the stair case side.
Though the OP-4 was intimated about this problem, but he did not care to solve the matter.
- Due to defective fitting of marble in the bathroom the floor of the bathroom got damage and Plaster of Paris is falling down from the wall.
- Since initial stage of using the flat a foul smell is coming from the bathroom of the second floor and though the fact was intimated to the OPs, to no effect and the said bad smell is still coming.
- Defective fitting of the ply board door of the flat.
- Water pipe line for passing water at the right side of the verandha of the said building has not been completed, but the left side work is completed. Inspite of repeated request the OPs have denied to complete the said work.
- Due to non-supply of the completion certificate the Complainants could not take any step for mutation.
- Super built up area has not been declared. According to the Complainants appropriate square feet as per the agreement have not been delivered for which during registration the OPs were to pay a sum of Rs.2,750/- per square feet towards the deficit area.
The abovementioned pending works have not been completed by the OPs till filing of this complaint. Apart from the said works several works are still pending in the common areas. Several requests were made to the OPs, but they did not bother to complete the works. Written correspondences were made with the OPs, but no fruitful result has yet been yielded. Being aggrieved with the action of the OPs the Complainants approached before the Assistant Director, CA & FBP and lodged a complaint against the OPs. Accordingly the OPs were directed to appear for mediation, but none of the OPs appeared and being compelled the concerned authority issued a letter to the Complainants advising them to prefer a statutory complaint against the OPs before the Consumer Forum and accordingly the Complainant have approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to provide the completion certificate, to complete the incomplete works in the questioned flat of the Complainants as well as in the common area, to repair the damaged items, to refund the cost of 25 square feet @Rs.2750/- towards deficit area. In the prayer portion the Complainants have sought for relief to the tune of Rs.12,99,353/- on different counts.
After admission of the complaint notices were sent to the OPs, but as the same could not be served with satisfaction in the eye of law, the Complainants prayed for publication of notices in respect of all the OPs in the daily newspaper. Accordingly the notice was published, but the OPs did not turn up to contest the complaint either orally or by filing written version. So this Ld. Forum was pleased to pass an order mentioning that the complaint will run exparte against the OPs.
The Complainants have prayed for adoption of the petition of complaint as their evidence. They also filed BNA. On the date of final argument none was present on behalf of the OPs. We took up the complaint for hearing exparte against the OPs.
We have carefully perused the record; documents as filed by the Complainants and heard argument advanced by the Ld. Counsel for the Complainants. It is seen by us that admittedly the Complainants got possession in the respective flat and the flat has already been registered in their names. The Complainants are residing therein. The documents show that being satisfied with the construction as per specifications the Complainants got possession in the said flat and subsequently registration has also been completed in their favour. The allegation of the Complainant is that there are some pending works in the common areas, which are still in incomplete condition and inspite of several verbal requests as well as written correspondences made by the Complainants along with other inhabitants of the said building, the OPs did not bother to complete the same, for which they are all suffering from severe problem and the problems are increasing day by day for which the entire building got damage. In this respect we are to say that the written correspondences reveal that the inhabitants of the said building along with the Complainants requested the OPs on several occasion for completion of all the pending works, but till date the OPs did not complete the same and pay any heed to their requests. As this problem is cropped up regarding the pending works in the common areas, hence until and unless either all the inhabitants of the said building or on behalf of them the Association is coming, we are not in a position to pass an order in respect of the alleged pending works in the common areas. The Complainant has further alleged that till date the OPs did not hand over the completion certificate to them, there are some defects in the bathroom, floor and walls in respect of the questioned flat. The Complainants have mentioned the despite several requests, the OPs did not take any step till date and for which they are suffering immense and their flat got damage due to leakage of water. In respect of such allegation we are of the opinion that the OPs are under the obligation to hand over the completion certificate to the Complainants so that the Complainant may apply for Mutation of their flat. In respect of the defective works as alleged by the Complainants regarding their flat, we are to say that as the Complainant paid the consideration amount in full, hence it is the obligation of the OPs to construct the flat in a proper manner, not in a defective manner. As due to such defects the Complainants are facing problems day by day, hence the OPs shall take step to remove the said defects regarding floor of the bathroom, floor of the adjacent room to the bathroom, seepage of water, wall of the bathroom. The Complainants have further alleged that though it was agreed by and between the parties that flat of the Complainants will be 580 square feet, but the OPs have delivered less than that i.e. there is deficit of about 25 square feet. But the Complainant paid the consideration amount for 580 square feet. It is stated in the petition of complaint that during registration the OPs were agreed to refund them the cost of 25 square feet @Rs.2750/- per square feet, but till date the amount have not been refunded and prayer is made for direction to the OPs to refund the said amount. In this regard we are of the opinion that as to whether there is any deficit in the measurement of the flat or not in view of the agreement, we cannot draw the conclusion until and unless report is coming from an Engineer Commissioner, but the Complainants did not make any prayer for appointment of an Engineer Commissioner for inspection of the instant dispute. Further as the flat has already been registered in their favour, before registration why the Complainants did not take actual measurement of the flat, the picture is not clear. In the deed of conveyance the measurement of the respective flat is mentioned as 580 square feet. Therefore at this juncture without any expert opinion we cannot draw the conclusion that the OPs have delivered deficit measurement. In respect of prayer for compensation and litigation cost we are of the view that admittedly it is the duty of the OPs to hand over the completion certificate to the Complainants, but inspite of delivering possession and registration of the flat till date the OPs did not take any step to provide the completion certificate to the Complainants, such inaction of the OPs certainly suffers from deficiency in service, for which the OPs are liable to pay compensation to the Complainants. In respect of litigation cost, we are of the opinion that as the Complainants have obtained legal help and assistance from the CAB for proceeding with this complaint and they do not incur any farthing, hence they are not entitled to get any amount towards litigation cost.
Going by the foregoing discussion hence it is ordered that the complaint is allowed in part exparte against the OPs without any cost. The OPs are directed either jointly or severally to hand over the Completion Certificate to the Complainants within 60 days from the date of passing of this judgment, in default the OPs are liable to pay either jointly or severally punitive damage @Rs.100/- per day, out of which the Complainants will get 50% of the said amount and the balance 50% shall be deposited to the SCWF till its realization. The OPs are further directed to take positive step for removal of the defects regarding floor of the bathroom, floor of the adjacent room to the bathroom, seepage of water, wall of the bathroom within 60 days from the date of passing of this judgment, in default the OPs shall pay either jointly or severally punitive damage @Rs.100/-per day, out of which the Complainants will get 50% of the said amount and the balance 50% shall be deposited to the SCWF till its realization. The OPs are further directed to compensation either jointly or severally to the tune of Rs.2000/- due to harassment, mental agony and pain within 60 days from the date of passing of this judgment, in default the Complainants will be at liberty to put the entire order in execution as per provision of law. With the abovementioned observation the complaint is disposed of accordingly.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.
Member Member
Dictated & Corrected by me
