West Bengal

Birbhum

CC/143/2016

Shibani Das Gupta, W/o Lt S.Kr Dasgupta - Complainant(s)

Versus

Sri Salil Kr Banerjee - Opp.Party(s)

Sanjit Kr Acharya

08 Jun 2022

ORDER

Shri Sudip Majumder . Member.

            The case of the Complainant/petitioner in brief, is that one Shibani Das Gupta purchased a flat measuring 980 sq. ft. in “Sumita Enclave” located at College pally, Bolpur, Birbhum from Promoter sri Salil Kumar Banerjee under a registered deed, registered at Bolpur sub-Registry Office, dated 07/10/2009.

            That the flat was handed over to the complainant on 07/10/2009. But the garage space of 50 sq. ft. for which separate price amounting to Rs. 20,000/- was paid exclusively for the garage separate price i.e. Rs. 1000/- per sq. ft. and she paid to OP Rs. 10,000/- in cash vide Money Receipt No. 171 dated 12/03/2010 also paid Rs. 10,000/- in cash vide Money Receipt No. 177 dated 01/09/2011. Therefore, the complainant paid Rs. 20,000/- to the OP exclusively for the 50 sq. ft. garage.

            That inspite of complainant’s repeated reminder and personal contact he has not handed over to the complaint the space (50 ft) for garage till today.

            That the complainant lodged a complaint before the CA & FBP at Suri, Birbhum.

            That the complainant also requested the OP verbally and also in writing to hand over the space of garage, but they did not pay any heed on the request of the complainant.

            That there after the complainant lodged a complaint before the Sub-Divisional (Taluk) Legal Services Committee, Bolpur, Birbhum for settlement being case No. 560/16 against the OP and the Ld. Lok Adalat served notice upon the parties with direction to remain present on 17/05/2016 at 3.00 P.M. before the Lok Adalat, but the Ops did not appear.

            That OP did not hand over the space of garage to complainant in order to deprive her from her legitimate claim.

           

 

 

 

That the aforesaid act of the OP is amounting to deficiency in service.

            That finding no other alternative the complainant filed the instant case praying following relief/reliefs:

1. To pass an order directing the OP to hand over 50 sq. ft. of garage space after demarcation.
2. To pass an order directing the OP to pay compensation of Rs. 50,000/- for mental agony and harassment.
3. To pass an order directing the OP to pay Rs. 5,000/- as litigation cost.
4. Other relief/reliefs.

OP in his written version stated as that he did not sold the garage space to the third party.

That as per Sec 3(d) (3) of West Bengal Apartments Ownership Act 1972, garage is within common areas and facilities.

That the OP craves leave he will give additional written version at the time of hearing if necessary.

Complainant side submitted evidence-in-chief. Some documents have also been filed by the complainant. Written notes on argument (W/N/A) is also filed by the complainant and thereafter, Ld. Advocate for the complainant made oral argument in support of this case.

                                                                     Points for determination/Issues

1.  Whether the complainant is a consumer as per definition of the term ‘Consumer’ of the C.P Act. ?
2. Whether this Commission has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the Ops?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 Decision with reasons

Point No. 1:

            That the complainant paid Rs. 20,000/- for garage space of 50 Sq. ft. to the OP exclusively for the garage. And as such the complainant is a consumer under the OP and OP is the service provider of the complainant and thus it is clear that the complainant is a consumer in view of the C.P Act.

Point No. 2:

            That complainant lodged a complaint before the consumer affairs department Suri, Birbhum and thereafter lodge complaint before the Sub-Divisional (Taluk) Legal Service Committee, Bolpur, and Birbhum for settlement being case No. 560/2016 against the OP and the case was fixed on 17/05/2016 for hearing by the Op did not appear. That they case has been filed in the year 2016 i.e. 01/12/2016 and it is a continuing cause of action and as such it can be said that the instant complainant has been filed within the statutory period and as such it is clear that the instant complaint is not barred U/S 24 (A) of the C. Act.

 

 

Point No. 3 and 4:

            Both points are taken up together for convenience of discussion as they are related to each other.

            On careful consideration of all these, it is undoubtedly proved that the complainant is a Consumer, within the ambit of Consumer Protection Act, as amended. It is also true that there exists deficiency in service against the complainant. As a rightful consumer service from the part of the OP/Bajaj Finance Ltd. was not properly rendered to the complainant.

It is proved that on 12/03/2010 and 01/09/2011 OP received total Rs. 20,000/- from the complainant as advanced exclusively for Garage purpose.

            It appears to us from the documentary evidence that as the complainant deposited Rs. 20,000/- for the Garage space to the OP she is entitled to get that the Garage space with demarcation and the OP is liable to deliver the same to the complainant.

            Ld. Advocate on behalf of the complainant cited that in Salil Banerjee Vs. Dr. Biswajit Sen, SCDRC, WB, First Appeal No. A/1170/2015, Judgment dated 28/10/2016 – it is stated that as the OP received the price for the Garage from the complainant the OP is liable to deliver the same.

• The OP cannot avoid his liability after receiving the legal notice from Ld. Advocate of the complainant. Op is very much reluctant to demarcation of the said Garage space for the complainant.
• It is a statutory obligation on the part of the Developer/Promoter to specify the demarcated car parking area so that the purchaser alone may enjoy that space without any hindrance or obstacles from any corner.
• Hence, there exists deficiency in service against the complainant.

Hence, in absence of contra evidence from the side of Op while the complainant files the documentary evidences, we are of the considered view, that the complainant has been able to prove her case. All the points are thus decided accordingly.

                        Hence, it is,

                                    O R D E R E D,

                                                            that the instant C.C. Case No. 143/2016 be and same is allowed in part exparte against the OP  with cost.

Complainant is directed to pay the remaining balance amount of Rs. 30,000/-(Thirty thousand) for the said garage space to the OP before demarcation of the garage space.

The OP is directed to hand over 50 sq. ft. of garage space to the petitioner/complainant and demarcation of the same car parking area so that the purchaser alone may enjoy that space without any hindrance or obstacles from any corner. The OP is directed to pay Rs. 10,000/-(Ten thousand) to the petitioner/complainant as compensation as against mental agony and harassment and also directed to pay Rs. 2000/-(Two thousand) to the petitioner/complainant as cost of litigation.

 

 

The entire decree will be complied by both the parties within 45 (Forty five) days from this date of order in default the complainant is at liberty to put this order in execution in accordance with law.

The instant case is thus disposed of.

Let a copy of this order be given/handed over to the parties to this case free of cost.1