THE PRESIDENT

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

WEST TRIPURA : AGARTALA

 

 

CASE No. CC- 69 of 2019

 

 

1. Smt. Sonali Saha,

W/O- Sri Pranab Saha,

Narayan Apartment, Flat No. 1A, 1st Floor,

Joynagar, Near Dashamighat Club,

Agartala, P.O. Agartala, 

District- West Tripura- 799001,

(Represented by her Husband 

Sri Pranab Saha). .….................Complainant.

 

 

-VERSUS-

 

 

1. Sri Niladri Roy @ Niladri Sekhar Roy,

@ Buban Roy, S/O- Sri Narayan Roy,

Joynagar, Dashamighat, Agartala, 

P.O. Agartala, West Tripura-799001.

 

 

2. Sri Himadri Roy @ Himadri Sekhar Roy,

@ Narayan Roy, S/O- Sri Narayan Roy,

Joynagar, Dashamighat, Agartala, 

P.O. Agartala, District- West Tripura-799001.

 

 

3. M/S Balaji Constructions,

97, NBRC Para Bardowali,

A.D. Nagar, District- West Tripura- 799003.

(Represented by Sri Pranab Ghosh,

S/O- Sri Nikhil Ranjan Ghosh, Bardowali, 

P.O. & P.S.- A. D. Nagar- 799003.

District- West Tripura. ................Opposite Parties.

 

 

         __________PRESENT__________

 

 SRI RUHIDAS PAL

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION

      WEST TRIPURA, AGARTALA. 

 

Dr (SMT) BINDU PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.

 

 

 

C O U N S E L

 

 

For the Complainant : Sri Amritlal Saha,

  Sri Kajal Nandi,

  Smt. Manisha Chakraborty,

  Learned Advocates.

  

For the O.P. No.1 & 2 : None Appeared.

 

For the O.P. No.3 : Sri Subhajit Paul,

  Learned Counsel.

 

 

 

JUDGMENT  DELIVERED  ON :  16.11.2022

 

 

J U D G M E N T

The Complainants' case in short is that the O.Ps  proposed to sell some flats in the name of Narayan Apartment', at Dashamighat, Joynagar, Agartala constructed by Balaji construction, O.P. No.3. O.P. No.1 is the owner of the land described scheduled A & B. He entered into a Development Agreement with the O.P. No.3 i.e., M/s Balaji Construction's, partner Sri Prabnab Ghosh, of A.D. Nagar, West Tripura for construction of flats with car parking space on the land described in schedule after having building permission from the Agartala Municipal Corporation vide plan No. HC/5678/16/AMC/3507-11 dt. 05.07.2016 for construction of (G+5)  multistoried building consisting of 8 numbers of residential flats. The complainant and the O.Ps entered into an agreement for sale and thereafter O.Ps sold flat to the complainant by executing registered deed of conveyance dated 19.08.2016 between the O.Ps and the complainant. The O.Ps agreed to sell flat no. A on the 1st Floor @ Rs.3,400/- per sq ft. with a total price of Rs.45,08,400/- and the complainant agreed to purchase this flat which is to be delivered within a period of 18 months. And thereafter deed of conveyance dated 25.08.2017 was executed for the flat no. 1A in the 1st floor measuring 1326 sq ft along with car parking space in the ground floor at Narayan Apartment, valued Rs.45,08,000/-. As per agreement, the O.Ps required to arrange amongst others the following:- 

''(i) Common septic tank R.C. Overhead, underground reservoir, (ii) electrical installments, (iii) foundations, beams, supports, main walls, passage, (iv) lift tube well, water treatment plant, pump set and pump and pipes, (v) common underground and overhead water reservoir and roof, (vi) top roof shall not be used for gardening or pipe/ keeping flower tub which will damage the roof and building.

The complainant and other flat purchasers jointly decided to form one committee of flat owners and beneficiaries through Sri Shyamal Kanti Deb, Secretary of the committee sent one communication dated 19.11.2018 to Sri Pranab Ghosh, partner of M/S Balaji constructions informing the defects of the flats which is as follows:

''(i) The water system installed above the roof for the purpose of supplying unusable water to the flat inmates seems to be out of order and the water exerted from the system is of no use and full of iron and other foreign elements. As as result of which the flat inmates are suffering badly and often falling sick. This problem is occurring for almost a year now which have verbally assured by the O.P. that it will be rectified but not yet rectified. Supply of usable water to the flat inmates is urgently required.

(ii) The common electricity line provided in the flats may be transferred in the name of the committee so formed. 

(iii) The electric wiring in the rooms of the flats have been provided a single phase whereas the electric consumption facilities in the rooms have been provided as of three phase nature, as a result of which the individual had to bear additional expenditure the amount of which is liable to be compensated by the developer himself.

(iv) As verbally assured  as developer the ground floor is yet to be coloured and garage/ car parking space no.6 is yet to be completed.

(v) Some leakage in the waste pipe and some plaster crack both inside and outside of the buildings have been noticed. The bathroom fittings and basin/ sink outlets are going to be damaged, within this short period. These should be taken care of immediately.

(vi) The committee has observed that a separate water tank has been installed on the top of the roof without the consent of the flat owners. The purpose  of its installation may be clarified. 

(vii) The underground water reservoir has been found under lock and key as a result of which it is not possible to use the reservoir for the interest of the flat inmates and had been requested for arranging and handing over the same. 

(viii) The constructed shops building has not been built according to approved plan provided to the flat owners, as a result of which the flat owners are facing problems with the entrance and exit of the building.

(ix) The electric switches in some of the flats are not working. The sliding windows in some flats are not working properly.

(x) All other things like lock and keys of the main gates and flats related matters may be handed over to the committee. 

  (xi) The lift provided in the flat remains out of order most of the times and frequently create problems to the flat owners. Corrective measures in this regard may be taken.''

  It was requested to rectify the above defects and remove the grievances within a period of 15 days so that the flat owners shall not suffer further. On receipt of this communication  Sri Pranab Ghosh on behalf of the Balaji Construction replied  on 19.12.2018. He questioned the committee formation of flat owners. In respect of allegations of the flat owners the O.Ps has replied. 

O.P. did not rectify the defects and as such the complainant have been suffering. It is stated by the complainant that the O.Ps are guilty of deficiency of negligent service causing continuous harassment suffering discomfort to the flat owners. Hence this complaint. 

 

2. O.P. No.1 and 2 did not appear though notice was issued to them. Hence, order was passed to proceed the case exparte against them vide order dated 18.10.2019. 

 

After getting notice from this commission the O.P. No.3 appeared and filed written statement denying  the allegations made by the complainant in her complaint petition. It is stated by the O.P. no.3 that the complaint is not maintainable in its present form and nature and  is a misconceived one and liable to be dismissed. It is stated by the O.P that the complainant approached this Commission with unclean hands and suppressed the material facts and some untrue statements. It is also stated by the O.P. No.3 that the formation of the society/ association. Committee are absolutely illegal in the eye of law. It is mandate of law that the flat owners at the time of formation of their society or committee are absolutely bound to invite the developer and the land owner to remain present in the said meeting. There are some members who are not even the purchaser of any flat in the said apartment and thus it is not understood as to how the said committee so formed could be conferred with the legality and the legal status of the society/ committee/association. It is also stated by the O.P. that it had repeatedly requested to the flat owners to take the manual book of the iron removal plant from its custody to the custody of the flat owners which the flat owners denied to receive. The flat owners after elapse of one year from the date of getting possession of the flats did not even try to maintain the said iron removal plant. At the time of purchasing the flats the complainant carefully inspected and examined the documents of the title to its full satisfaction and also regarding the quality of the construction of the flat including quality of fitting, fixture and installations and facilities so provided in the said flat. Hence the instant complaint is baseless. It is submitted by the O.P. that the liability of the opposite party No.3 is limited for a period of one year from the date of handing over of the possession of the said flat to the complainant which is clearly written in page 27 of the Deed of conveyance. The possession of the flat has been duly handed over to the complainant on 25.08.2017 which is also confirmed by the O.P. No.3 by its letter dated 20.06.2018. The O.P. stated that the iron removal plant so installed has been damaged due to manhandling or mishandling of the flat owners. The complainant is not entitled to get a single penny from the O.P. No.3. Hence, the O.P. prayed for dismissal of the complaint. 

 

3. EVIDENCE ADDUCED BY THE PARTIES:-

Examination in chief on affidavit of Pranab Saha as P.W. has been submitted. Also submitted 07 documents vide firsiti dated 23.08.2019, the documents on identification are marked as Exhibit- 1 Series. The complainant is also examined and cross examined by the O.P.  

The O.P. No.3 submitted examination in chief of one Pranab Ghosh, partner of Balaji Construction as O.P.W.1. Also submitted 8 documents which has been marked as Exhibit- A Series. O.P.W.1 is cross examined from the side of the complainant.

 

4. POINTS TO BE DETERMINED: - 

  (i) Whether the complaint is maintainable?

 

(ii) Whether there is deficiency of service on the part of the O.P?

  (ii) Whether the complainant is entitled to get compensation/ relief as prayed for?

 

5. - A R G U M E N T -

Complainant and O.P. No.3 submitted their written arguments. At the time of argument Learned Counsel Mr. Amritlal  Saha submitted that the O.Ps proposed to sell some flats in the  Narayan apartment constructed by Balaji Construction(O.P. No.3) and O.P. No.1 is the owner of the land. After taking building permission from the Agartala Municipal Corporation they constructed (G+5) multistoried building consisting of 8 nos. of residential flats. O.Ps sold flat to the complainant and others by executing registered deed of conveyance dated 29.04.2017 and there was condition in the agreement that the O.Ps are required to arrange septic tank, underground reservoir, installation of lift, tube well water treatment plant, etc. the complainant and other flat owners found that the promoter did not fulfill the conditions mentioned in the agreement and thereafter the secretary of the committee of the flat owners sent one communication dated 19.11.2018 to Sri Pranab Ghosh, partner of M/S Balaji Construction informing the defects in the flat but the O.Ps did not pay any heed to fulfill the conditions as per agreement. Mr. Saha further submits that the O.Ps have not yet rectified the defects and as such the complainant and the other flats owners are suffering and the conduct of the O.Ps amounts to unfair trade practice. 

 

On the other hand learned counsel Mr. Subhajit Pal submitted that the complaint is not maintainable in its present form and nature and it is misconceived one. There is also no cause of action for filing the complaint before this Commission and it is liable to be dismissed. He further submitted that  the flat owners were time and again requested by the O.P. No.3 to take the manual book of Iron Removal plant from him but the flat owners time and again had denied to receive the manual book. There was no deficiency of service on the part of the O.P. for the purpose of construction of iron removal plant. It is further submitted that the complainant at the time of purchase of the flat from the O.P. No.3 had  carefully inspected and examined the documents of title to its full satisfaction and also regarding the quality of construction of the said flat including the quality of construction of flat, quality of fitting, fixtures and installations and facilities so provided in the said flat. So, there is no latches on the part of the O.P. No.3 to fulfill the conditions for construction the flat. At last he submitted that the complaint is not maintainable in its present form and nature as because without issuing Commission the dispute cannot be decided and the nature of the dispute is a civil nature and this Commission has no jurisdiction to entertain such complaint. 

 

6. DECISION AND REASONS THEREOF:-  

All the points are taken up together for convenience. We have gone through the pleadings as well as the evidences adduced orally and documentary. On perusal of the written reply, we find that the allegations are not admitted by the O.Ps. The documents submitted by the complainant are marked as Exhibit- 1 Series. The deed of conveyance (Sale deed) are vital document. After going through the entire sale deed, we do not find any specific averment in respect of fulfilling the allegations as raised by the complainant in the complaint petition. On perusal of the deed of conveyance, we found that there are description of the land mentioned in the schedule 'A' and description of the flat and car parking and space mentioned in the Schedule 'B' and some facilities for enjoyment of all flat owners situated in the common area. 

On perusal of the complaint petition, we find that the complainant made allegations in respect of deficiency of service regarding her individual flat concern partly and partly for the common area concern. Complainant herself did not submit examination in chief on affidavit but her husband Sri Pranab Saha submitted examination in chief on affidavit on her behalf. In the cross examination Pranab Saha stated that O.Ps are supposed to give facilities to his wife as has been mentioned in the complaint petition. He can not remember when the committee of the apartment/Flat owners was formed. Mr. Shyamal Kanti Deb is the secretary of the said committee of the flat owners. Flat was purchased by Sonali Saha and Sonali Saha is his wife. He further in his cross examination stated that Mr. Shyamal Kanti Deb was the secretary of the said apartment. There is no flat in the name of Shyamal Kanti Deb in the apartment. 

One Pranab Ghosh has submitted examination in chief on affidavit on behalf of the O.P. No.3 who is the partner of M/S Balalji Construction. At para- 13 of the examination in chief he stated that the complainant at the time of purchase of the said flat from the O.P. No.3 have carefully inspected and examined the documents of title to its full satisfaction and also in regard to the quality of the said flat including quality of fixture and installation and facilities so provided in the said flat. In the deed of conveyance dated 25.08.2017 bearing no- 14317 complainant has mentioned that she is fully satisfied about the quality of construction of the said flat including the quality of construction of flat, quality of fitting, fixtures and installations and facilities that has been provided by the O.P. No.3. In cross examination Pranab Ghosh stated that the complainant made the allegations after taking possession after completion of the flat. As per agreement they have completed all the conditions and agreed services and there was no latches on their part. 

 

7. We have discussed the evidences adduced from the side of the complainant as well as the O.Ps. On appreciation of the above evidences it has been crystal clear that after taking possession with full satisfaction complainant made allegations about deficiency of service on the part of the O.Ps. The complainant herself did not submit examination in chief on affidavit but her husband has submitted examination in chief on affidavit and at the time of cross examination the husband of the complainant stated that O.Ps are supposed to give facilities to his wife as has been mentioned in the complaint petition. Selling of flat is guided by deed of conveyance and if the conveyance does not provide any conditions for giving facilities as per allegations there will be no right to claim after taking possession of the flat with satisfaction. Moreover, after going through the complaint we find that there are so many allegations about non fulfillment of conditions and facilities and it can not be decided without taking evidences by issuing of commission and the entire matter is a civil nature of dispute. So, this Commission by way of summary trial can not decide such type of complaint.

 

8. Apart from the above findings, we find that there is a statute namely the Real Estate (Regulation and Development) Act, 2016. The object of the said Act is to protect the interest of  consumers in the Real Estate Sector and to establish and adjudicating mechanism for speedy dispute redressal and also to establish the appellate tribunal to hear appeals from the decisions and direction or orders of Real Estate Regulatory Authority and the adjudicating officer and for matters connected therewith or incidental thereto. So under the said Act there is an established Real Estate Regulatory Authority to look into the dispute arising out of the Real Estate sector. So, we hold that the complaint is not maintainable in its present nature and form. Hence, complaint is dismissed. 

 

Announced.

 

 

SRI R. PAL

PRESIDENT, 

DISTRICT CONSUMER  

DISPUTES REDRESSAL COMMISSION,

WEST TRIPURA, AGARTALA. 

 

 

 

 

 

 

Dr (SMT) B. PAL

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION, 

  WEST TRIPURA,  AGARTALA.

 

 

SRI SAMIR GUPTA,

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL COMMISSION

  WEST TRIPURA,  AGARTALA.