West Bengal

Paschim Midnapore

CC/186/2016

Sri Kamal Kumar Chakraborty - Complainant(s)

Versus

Sri Sandip Bandyopadhyay - Opp.Party(s)

29 Mar 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

   Bibekananda Pramanik, President,

and

Sagarika Sarkar, Member. 

 

Complaint Case No.186/2016

 

Sri Kamal Kumar Chakraborty, S/o late Suresh Chandra Chakraborty, a permanent resident of Flat no.D-2, 2^nd Floor, North East Side, R-12, Saratpally, Dukbunglow Road, P.O. Medinipur, P.S. Kotwali, District - Paschim Medinipur, pin-721101.   

                                                                                                                    ………..……Complainant.

                                                                              Vs.

1. Sri Sandip Bandyopadhyay, S/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
2. Sri Pradip Kumar Bandyopadhyay, S/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
3. Sri Sudip Kumar Bandyopadhyay,  S/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
4. Smt. Sima Bandyopadhyay, D/o late Bidhu Bhusan Bandyopadhyay, a resident of R-12, Saratpally, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
5. Sk. Anwar Hussain, S/o Sk. Ahemed Hussain, Resident of Station Road, P.O. Medinipur, P.S. Kotwali, District Paschim Medinipur, PIN-721101, Proprietor Aman construction,
6. Aman Construction, Proprietor by Sk. Anwar Hussain, Station Road, P.O. Medinipur, P.S. Kotwali, Disterict Paschim Medinipur, PIN-721101.

                                                                                                 .....……….….Opp. Parties.

Contd…………………..P/2

 

                                       ( 2 )                                                     

              For the Complainant: Mr.  Diptendu Ghosh, Advocate.

              For the O.P.               : Mr. Bidyut Kumar Pratihar, Advocate.

                                                  : Mr. Swapan Bhattacharya

                                                         

                                                           Date of filing:25/11/2016

Decided on: - 29 /03/2018

                               

ORDER

                          Bibekananda Pramanik, President –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sri Kamal Kumar Chakraborty against the above named O.Ps, alleging deficiency in service on their part.

               Complainant’s case, in brief, is as follows:-

                        O.P. nos. 1 to 4 are the owners of the land in plot no 8 of R.S. Khatian no.1/22 of mouza Narampur, P.S. Medinipur in the district of Paschim Medinipur and they being the owners entered into a joint venture agreement with the O.P. no.5 for construction of a G+4 storied building on the said plot of land.  O.P. no.1 to 4 also executed a Power of Attorney in favour of O.P. no.6 Aman construction, being represented by it’s sole proprietor Sk. Anwar Hossain, the O.P. no.5.  Being a developer under the said joint venture agreement, O.P. no.5 constructed a G+4 building  on the said plot of land comprising of four self- contained flat in each floor of the building and the ground floor of the building was kept set aside for parking of vehicles.  O.P. no.6 duly represented by O.P. no.5 thereafter entered into an agreement for sale with the complainant of a flat being no. D-2 on the second floor of the said apartment named Chandrava Niloy priced at Rs.18,00,000/- and in terms of said agreement,  a deed of conveyance was executed by O.P. nos.1 to 4, duly represented by their constituted attorney being the O.P. nos.5 & 6 and sold, transferred and conveyed the entire flat covering an area of 775 square feet having super built up area of 900 square feet in the said flat  with a two wheeler parking space in the ground floor of the building.  After taking possession of the said flat it was found by the complainant that the flat did not match with the dimension as mentioned in the said deed of sale executed and registered in favour of the complainant on 24.11.2014.  It is stated that the parking space is only for the purpose of parking vehicles of the flat owners of the building and the said space cannot be sold to any other third party but the O.Ps have illegally, arbitrarily and with mala- fide intention constructed walls in the parking space and thereby creating a room in the said parking space.  The O.Ps have allowed other third parties, who do not have any flat in the apartment, to park their vehicles in the said building.  It is stated that the entire land measuring 7.90 decimals of the said apartment is

Contd…………………..P/3

 

( 3 )

allocated land for construction of G+4 building but the O.Ps have constructed a room on the south west corner measuring 150 square feet approximately and the said room has been sold to one Niranjan Kutty though the O.Ps do not have any right to do so as because the entire 7.90 decimals of land is proportionately owned by the owners of the flat in the said G+4 apartment.  The promoters have no right to sell any portion of the building which is not a flat to any other parties.  Thus the act of the O.Ps in occupying a portion of parking space by construction of wall in the ground floor of the building is illegal, arbitrary and the O.Ps have no right to do so.  All such acts of the O.Ps tantamount to deficiency in service.  The complainant by a letter addressed to the O.Ps demanded that the unfinished work in the said building be completed forthwith.  The boundary wall of that apartment is yet to be constructed and no stair case has been provided for reaching the tank mounted on the stair case roof, no soak-pit has been constructed and the parking area has not been identified to the flat owners causing inconvenience to them.  It is stated that no fire fighting arrangements, no lightening arrestor arrangement, no municipal water connection and many other miscellaneous work have not yet been done in the said apartment.  The complainant further demanded that the certain documents be handed over to the flat owners including the complainant, details of which have been mentioned in paragraph 20 of the petition of complaint.  Despite receipt of the said notice, the O.Ps have not responded to the said letter in any manner.  On the other hand, O.P. no.5 Sk. Anwar Hossain has started threatening the flat owners with dire consequences.  It is further stated by the complainant that on physical measurement of the flat, it was found that the carpet area of the flat is less than what has been stated in the said deed of sale.  Hence the complaint, praying for directing the O.Ps to pay a sum of Rs.82,916/- being the amount of shortage in the super built up area of the flat with 15% interest p.a. and to pay compensation of Rs.50,000/- and litigation cost of Rs.20,000/- and for certain directions upon the O.Ps for completion of the unfinished work in the said apartment.  

                   O.P. nos. 1 to 4 have contested this case by filling a joint written version.  

                   Denying and disputing the case of the complainant, it is the specific case of the O.P. nos. 1 to 4 that they are owners of the land on which the flat in dispute has been constructed.  For construction of the apartment in question on their said land,  O.P. nos. 1 to 4 entered into an agreement with O.P. no.5, the sole proprietor of Aman Consturction, the O.P. no.6 and accordingly a registered power of attorney was executed by them in favour of O.P. no.5 on 15.03.2013 with certain terms and conditions.  It was specifically mentioned in the power of attorney that these O.Ps only will get their owners’ allocation of flats and in any case they will not be liable for any act of the O.P. no.5.  O.P. no.5 did total construction of the project and O.P. nos. 1 to 4 have received their owners’ allocation of

Contd…………………..P/4

 

( 4 )

flats with full and final satisfaction.  It is stated that no flat owners have any grievance against the O.Ps as the total construction work of the flat has been constructed with lift and water facilities as per sanction plan of Medinipur Municipality.  The allegations in the complaint are not true and therefore the petition of complaint is liable to be dismissed.

                    O.P. nos. 5 & 6 have contested this case by filing a separate w/o.  Denying and disputing the case of the complainant it is the case of  these O.Ps that the complaint is not maintainable,  that there is no cause of action for filing the complaint, that the complaint is barred by limitation and beyond the scope of C.P. Act and that the complainant has filed this case with a view to harass the O.Ps.    It is the specific case of the O.P. nos. 5 & 6 that after getting all xerox copies of title deeds, power of attorney, sanction plan etc. from the O.P. no.5 and after being satisfied regarding the papers of the flat, the complainant and O.P. no.5 entered into an agreement for sale on 29.08.2013.  The complainant and other flat owners inspected their flats time to time and being satisfied regarding the construction of the flat and all formalities, final registration of deed of sale was executed on 21/11/2014 and registered on 24/11/2014  in favour of the complainant by the O.P. no.5.  Since the date of purchasing of the flat, the complainant has been possessing the same for more than two years and he has filed this case with some mala- fide intention for causing pressure upon the O.Ps.  It is stated that the complaint is barred by limitation as the same has not been filed within stipulated period.  In such circumstances, O.P. nos.5 & 6 claim dismissal of the complaint.

               To prove his case, the complainant Sri Kamal Kumar Chakraborty has examined himself as PW-1, one Apurba Kumar Nandi as PW-2 and one Debojyoti Sanyal as PW-3. During the evidence of PW-1 & 2, documents were marked as exbt. 1 to 6 respectively.

 

               On the other hand, O.P. no.1 to 4 did not adduce any evidence, either oral or documentary . On behalf of rest O.Ps. , O.P. no.5 S.K. Anwar Hossain has been examined as OPW-1. During his evidence few documents were marked as exhibit A to D respectively and another document has been marked as X for identification. During the cross-examination of OPW-1 one document has been marked as exhibit E.

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer?
2. Is the case barred by limitation ?
3. Is there any deficiency in service on the part of the opposite parties?
4. Is the complainant entitled to get the reliefs, as sought for?

Contd…………………..P/5

 

 

                                                                                             ( 5 )                   

Decision with reasons

           Point nos.1 & 2:-

      Maintainability of this case has been questioned on ground that the present complaint is barred by limitation. On this score we find that admittedly the complainant entered into an agreement of sale of the flat in question with the O.Ps. and after such agreement a deed of conveyance was executed by the O.Ps. through O.P. nos. 5 & 6  and the said sale deed was executed on 21/11/2014 and registered in favour of the complainant on 24/11/2014.  Certified copy of the said deed of conveyance has been marked as exhibit-4.  According to the complainant immediately after execution and registration of the sale deed he took possession of the flat and found that the said flat did not match with the dimension as mentioned in the deed of sale. So admittedly the cause of action for filling the present complaint arose when the complainant noticed such defects and deficiency in service immediately after taking possession and registration of sale deed on 24/11/2014. The present petition of complaint has been filed after period of limitation of 2 years on 25/11/2016. There is no sufficient cause at all for such delay in filing the present complaint. Since the petition of complaint has been filed after the period of limitation of 2 years, so in view of section 24-A of the C. P. Act, the present complaint is barred by limitation and as such it is not maintainable.  

                    These two points are accordingly decided against the complainant.

            Point nos. 3 & 4:

                    In view of our above findings in point nos. 1&2 it is redundant to consider as to whether there is deficiency in service and as to whether the complainant is entitled to the reliefs as prayed for.                   

         All the points are accordingly disposed of.

         In the result, the complaint case fails,

                                                    Hence, it is,

                                                     Ordered,

                                   that the complaint case no.186/2016 is hereby dismissed on contest but in the circumstances without cost.

                               Let plain copy of this order be given to the parties free of cost.

                 Dictated & corrected by me

                    

 

                            President                                 Member                                    President 

                                                                                                                         District Forum