The fact of the complaint case in a nutshell is that the complainant purchased a flat measuring ( 1104 sq. ft. covered area and 276 sq. ft. common service area ) from the opposite parties/ Developers/ M/S. Vastu, a partnership firm having its business place at 130(28) Ghoshpara Lane, P.O. Mallickpara, P.S. Serampore, District. Hooghly, represented by its partners. Sri Soumitra Roy S/O. Sri Birendra Kishore Roy , Sri Sukanta Sarkar, S/O. Late Anukul Chandra Sarkar and Sri Asoke Ghosh S/O. Late.Sachindra Lal Ghosh on 27.6.13 by virtue of a sale deed vide deed no. 04969 registered at ADSR Serampore in consideration of Rs.20,49,330/-. The complainant states that he paid the consideration money and got the apartment registered in his own name. The complainant states and alleged that the complainant took the possession of the said 401, Shailla Nihar Apartment , 20, Dr. N.P. Mukherjee Street, P.O. & P.S. Serampore , District . Hooghly and after completion of Giriha Prabesh ceremony the complaint detected that the scratches on the marble floor on various sides of that room. It was also detected by the complainant that the aluminum sheets of the windows is not properly functioning and crack at the outside of the apartment. Due to said crack at the outside the painting were hanging from the wall are damaged for the reason seepage of the water from the cracked wall. The complainant states that after observing the position of the apartment the complainant informed the opposite parties about such deficiency through e-mail dated 19.10.2014 and also verbally stated the facts to the opposite parties . But the opposite parties did not pay any heed to the request of the Complainant. Thereafter to take necessary steps over the issues on various occasions the complainant sent email on 30.11.14 , 2.11.14, 9.11.14, 9.9.15, 11.10.15 and lastly on 19.7.115 stating all the harrasive intolerable situation faced by the complainant and his family members . The complainant states and alleged that after sending all the e-mails the opposite parties were agreed to meet with the complainant and a meeting was held between the parties but no such fruitful result was found in respect of the issues raised by the complainant . The complainant states that he sent letter to the opposite parties/ Developers to their residential address and till date the opposite parties did not take initiation or communicate with the complainant being refused the complainant took steps to repair the windows and marble placed on the floor. The complainant states and alleged that the said aforesaid apartment is only shelter of the complainant and his family and finding no other alternative the complainant compelled to file instant complaint before the Forum for proper adjudication. The complainant further states that he filed Xerox copies of various e-mails ,letters, courier acknowledgement and bill of repairing and prays before the Forum for entire replacement which suffers from deficiency and also prays before the Forum payment of repairing work done by the complainant i.e. Rs.3,62,739/- by the opposite parties and also prays before the Forum with a direction to the opposite parties to pay Rs.100000/- for harassment , physical injury and mental agony to the complainant and for other relief or relives.
The opposite parties contested the case by filing written version denying all the allegations leveled against them and stated that the instant complaint is not maintainable and further submits that the para 1,2,3,4 of the petition of the complainant is the matter of documental and question of deficiency of service does not arise and statement made in para 5 of the said complaint that the possession of the said apartment was not taken over by the complainant….absolutely false and baseless and para 6 of the petition the complainant entered and took possession of the said flat on 15.10.14 after completion of Griha Prabesh ceremony the complainant detected that the scratch and various problems of the floor and wall are absolutely baseless and false. The opposite parties stated and alleged that the e-mails found and these have been sent motivately and falsely . the opposite parties deny the allegation of para 9 of the complaint petition and stated that no such meeting was held on 22.2.15 and opposite parties never agreed to meet as alleged by the complainant. Para 10 is also false as alleged by the complainant. The statement made in para 11 the O.Ps. states that the complainant being refused started to repair is absolutely manufactured and concocted as alleged by the complainant .Interrogatories filed by the op against the evidence in chief filed by the complainant regarding the possession , the op states and denied that the complainant did not able to visit the flat as he was posted beyond the territorial limit of West Bengal is absolutely false and fabricated .The complainant took possession of the alleged flat on 15.10.14 after completion of the ceremony of the Griha Prabesh. The O.Ps. states that the admitted fact is that the complainant purchased a marble finished apartment from the opposite parties on 27.6.13 and took possession of the said apartment on very date of purchase But in the petition of the complaint the complainant falsely stated that he took possession of the alleged flat on 15.10.14 after completion of the ceremony of the Griha Prabesh. The O.P. states that the admitted fact is that the complainant purchased a marbel finished apartment from the O.Ps. on 27.6.2013 and took possession of the said apartment on the very date of purchase. But in the petition of complaint the complainant falsely stated that he took possession of the said flat on 15.10.2014.
The O.Ps. also alleged that the expenditure which has been shown in the application are absolutely false and fictitious and the complainant has no right to make any such alleged repair before filing of the case. The O.Ps. states that the complainant is greedy person and he is trying to grab some money from the O.Ps. by filing this case and prays before this Forum to dismiss the case with cost.
Complainant filed evidence on affidavit which is nothing but a replica of complaint petition, interrogatories & BNA.
O.P. filed written version, interrogatories and BNA
POINTS FOR CONSIDERATION
- Whether the complainant is a consumer ?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether the O.ps. carried on unfair trade practice and retendered any deficiency in service towards the complainant?
- Whether the complainant is entitled to get relief as prayed for?
DECISION WITH REASONS
All the points are taken up together for the easiness of judgment.
In the light of discussion it is admitted that the complainant purchased the alleged apartment from the O.Ps. on 27.06.2013 by virtue of a sale deed registered before ADSR, Serampore and the sale deed was executed in consideration of Rs.20,49,330/- and it is admitted in the written version of the O.Ps. So, the complainant is a consumer within the purview of C.P. Act, 1986 and O.Ps. being the service provider is responsible to provide service to this complainant.
Point No.2 & 3: the complainant did not adduce evidence to establish that there had been crack in roof and there was need for repairment, same has not been done by specialist knowledge person of construction. It appears from the complaint petition that the value of the flat is Rs.20,49,330/- and the reliefs prayed for amounting to Rs.5,12,739/- in total including breach of agreement, mental harassment and cost of repairing work. So, the value of the goods and services reckoned to Rs.25,62,069/-. Following the principal adopted by National Commission in Ambarish Kr. Shukla and 21 others Vs. Ferrous Infrastructure Pvt. Ltd. in I(2017) CPJ1 (NC) held that consideration paid or agreed to be paid by consumer at the time of purchasing the goods for hiring or availing of service as the case may be, is to be considered, along with the compensation, if any claimed in complaint, to determine the pecuniary jurisdiction of the Consumer Forum, we are in the opinion that the complaint case filed before this Forum have no pecuniary jurisdiction of District Forum. The complaint petition has in advertently admitted by this Forum. As such the complaint petition being No.CC 73/2016 be and the same is liable to be rejected. Hence, it is
Ordered
that the C.C. No.73/2016 be and the same is dismissed as this Forum has no pecuniary jurisdiction to entertain and try the case.
Let the copies of this order be supplied to the parties free of cost.
