DISTRICT CONSUMER DI    SPUTES REDRESSSAL FORUM

WEST TRIPURA : AGARTALA

 

 

CASE NO:  CC – 95  of   2017

 

 

Mrs. Baby Saha,

W/O- Sri Litan Saha,

Shibnagar, Gedu Mia Masjid Road,

P.S. East Agartala, P.O. College Tilla,

West Tripura- 799004. ........…...Complainant.

 

 

             VERSUS

 

 

    M/S Rishithria Dream Homes & Projects,

Represented by Sri Biswajit Roy,

S/O- Lt. Benoy Bhushan Roy,

Resident of 30- Gedu Mia Masjid Road,

College Road Extension, Shibnagar, Agartala, 

P.S. East Agartala, P.O. Agartala College,

West Tripura- 799004. ........... Opposite Parties.

 

 

__________PRESENT__________

 

 SRI A. PAL,

PRESIDENT,

  DISTRICT CONSUMER 

 DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C  O  U  N  S  E  L

 

For the Complainant : Sri Subrata Roy,

  Mrs. Sarbani Majumdar,

  Afroja Begam,

  Advocates.

 

For the O.P. : Sri Kushal Deb,

  Sri Dhrubajyoti Saha,

  J. Chakraborty,

  Advocates.

 

 

JUDGMENT  DELIVERED  ON:  16.01.2018.

 

J U D G M E N T

This case arises on the petition filed by one Baby Saha U/S 12 of the Consumer Protection Act. Case of the petitioner in short is that she entered into agreement with Rishithria Dream Homes & Projects for purchasing one flat. As per agreement she paid Rs.29,45,900/- in different times through cheques. The flat was to be delivered to her on 31.10.14 as per agreement. But O.P. Rishithria Dream Homes & Projects failed to deliver the same and caused much inconvenience to the petitioner. Petitioner has been residing in the rented house and spent Rs.2,56,000/-. She claimed the interest income and also rent she had to pay. She also claimed compensation for the deficiency of service of O.P. she claimed about Rs.13 lacs compensation and refund of the invested amount of Rs.29,45,900/-. 

 

2. O.P., Rishithria Dream Homes & Projects appeared and filed written statement denying the claim. It is stated that the amount was paid  not at a time but in different time. Advance Rs.6,00,000/- was paid in 3 parts.  Thereafter first installment paid on 27.12.14 for Rs 5,00,000/, 2nd installment was paid on 07.02.15 for Rs.5,00,000/- and 3rd installment was paid on  16.04.15 for Rs.5,00,000/.- Thereafter fourth installment was paid on two parts i.e.,  on 01.07.15 for Rs.4,45,000/- and rest part on 31.10.16, Rs.54,960/-. Fifth installment was paid in two parts i.e., on 12.04.16 Rs.1,65,000/- and on 14.06.16, Rs.1,50,000/-.  An amount of Rs.97,960/- was still pending on behalf of the petitioner to be paid to the O.P.  No builder could deliver flat without the consideration price. By typographical mistake it was written as 31.10.14 instead of 30.10.15. Petitioner did not cooperate to rectify the error to replace it by date 30.10.15 which was actual date of delivery. O.P. admitted the delay. It was caused because there was some delay in getting AMC permission to built G+4 building. AMC firstly given permission for G+2 permission and there was delay in giving final permission. There was also problem as the builder of the Mitra construction suffered Diabetic Stroke. There was labour unrest and dispute that caused delay. It is also stated that rate for water, electricity supply was increased to Rs.8 lacs by the electricity department. The transformer at the distance from the apartment so this extra cost is to be borne by the flat soon. For all these reason delay was caused. O.P. now ready to hand over the flat at present. There was no deficiency of service and petitioner is not entitled to get any compensation. 

 

3. On the basis of contention raised by both the parties following cropped up for determination:

(I) Whether there was breach of contract and O.P. failed to deliver the flat in time causing loss to purchaser?

(II) Whether there was deficiency of service by O.P. and petitioner is entitled to get compensation?

 

4. Petitioner side produced copy of construction agreement, agreement to sell, sanction of housing loan, receipts, service tax notice,  service tax payment for advance,  letter for payment dt. 09.06.15 & 17.02.16, letter for pending payment, service tax payment, purpose for payment, cheques, postal receipt & advocate notice, which are marked as Exhibit- 1 series. 

 

5. Petitioner also produced statement on affidavit of Sri Litan Saha, the attorney of the petitioner. During the pendency of the case petitioner appointed him as the attorney to represent the case. Accordingly, Litan Saha presented the case. 

 

6. O.P. on the other hand produced AMC building plan, final building plan, renewal plan, letters of electricity corporation, mails to Mitra construction, Mail to Mr. Mitra, Letter to Mr. Mitra, Advocate's Notice, F.I.R. against Bapi Saha, Reminder letter to Mitra Construction, Mail to Mitra Construction, letter to Bapi Saha and Mrs. Bapi Saha, letter by Buyers of Flat, buyers payment & Service tax details, which are marked as Exhibit-A series. 

 

7. O.P. also produced statement on affidavit of Tushar Kanti Pal, authorized Representative, Senior Supervisor of Rishithria Dream Homes & Projects. 

 

8. On the basis of all these evidence we shall now determine the above points.

 

 Findings and decision:

 9. We have gone through the construction agreement signed by both the petitioner and Biswajit Roy, the Proprietor of the Rishithria Dream Homes & Projects. The agreement for sale was executed on 5th may 2014. Schedule 'B' and 'C' property was agreed to be sold out to the petitioner Baby Saha. Total cost of construction is written Rs.30,12,710/-. Admittedly advance is paid in time by the petitioner. Details of payment also submitted for Advance payment of Rs.6,00,000/-. Rs.1,00,000/- on 25.03.2013,  Rs.2,50,000/- on 12.04.2014,  then again Rs.2,50,000/- on 15.04.14. First installment Rs.5 lacs on 27.12.14 and then 2nd installment on 07.02.2015 for Rs. 5 lacs. Before payment of last installment delivery of flat can not be possible. So, the plea taken by the O.P. that actual date of delivery was 30.10.15 not 31.10.14 as written in the agreement appears to be reliable. Certainly it was typographical mistake. Actual date was 30.10.15 but thereafter more than 2 years gone. It is admitted position that flat not yet delivered. There is no denying the fact that petitioner is residing in the rented house and paid rent. In the agreement of sale it was written that in the event of default second party shall be entitled to raise extension of time for delivery by the possession of completed apartment but 2 years delay is not reasonable delay. At best it could have been 6 months. O.P. had taken the pretext that the builder was ill. There was delay in getting the permission and there was also labour unrest. There was no change of rule of municipal authority. No provision of construction changed. No strike of the skill labour. So such delay of more than 2 years definitely is a deficiency of service. The plea was taken to support that the cost of electricity connection increased to Rs.8 lacs from Rs.3,40,000/-. In support of it a letter to TSECL dated 03.09.16 is submitted. The estimate is given on 18.01.17. The project was supposed to have been completed by 30.10.15. The delay was caused due to deficiency of service by the O.P.  Petitioner was not responsible for that. Due to such delay the charges of electricity might have been increased. The O.P. is to be borne this responsibility not the petitioner. 

 

10. O.P. had a quarrel with one Bapi Saha and filed and one criminal case also filed. For this the petitioner is also not responsible. Petitioner is entitled to get possession of the flat on 30.10.15. She had been residing in the rented house and paying Rs.8000/- per month as per petition. She is definitely entitled to get it from the O.P. after making full payment. We consider that there may be 6 months delay which is reasonable delay. So, by 30.05.16 the flat should have been handed over but it was not done till day. So petitioner is entitled to get rent from 01.06.16 till date and thereafter i.e., for 18 months total Rs.1,44,000/- at present and continue till date of delivery. We also consider that petitioner is entitled to get interest over the paid amount Rs.29,45,900/- from 01.06.16 9% P.A. till the date of delivery due to such late delivery of the possession of the flat petitioner suffered mentally. For this mental harassment, deficiency of service petitioner is entitled to get compensation amounting to Rs.40,000/- and cost of litigation Rs.10,000/-, total Rs.50,000/-. Thus, it is decided by us there was delay in giving delivery of the flat to the petitioner who was a consumer and paid the full amount of the flat to the O.P. for that petitioner is entitled to get compensation and also other benefits for the loss she suffered. Both the points are decided accordingly.

 

11. In view of our findings over the two points we direct the O.P. Proprietor of Rishithria Dream Homes & Projects to pay interest over the paid amount Rs.29,45,900/- @ 9% P.A. from 01.06.16 till date of delivery also pay rent Rs.1,44,0000/- + Rs.50,000/- as compensation and litigation cost. Payment is to be made within 2 months if not paid it will carry interest @ 9% P.A. 

 

Announced.

 

 

 

 

SRI A. PAL

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA.

 

 

 

SMT. DR. G. DEBNATH,

MEMBER,

 DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA SRI  U. DAS

MEMBER,

 DISTRICT CONSUMER DISPUTES 

REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA