West Bengal

South 24 Parganas

CC/591/2014

Sri Uttam Kumar Paik, S/O Badal Chandra Paik. - Complainant(s)

Versus

Sri Sanjib Mondal, S/O Sri Sanjoy Mondal. - Opp.Party(s)

31 Dec 2015

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS , JUDGES’ COURT, ALIPORE KOLKATA-700 027

 

C.C. CASE NO. ___591  OF ___2014____

 

DATE OF FILING : 5.12.2014     DATE OF PASSING JUDGEMENT:_31.12 .2015__

 

Present                        :   President       :  

 

                                        Member(s)    :  Smt.  Sharmi Basu  & Subrata Sarker                                      

 

COMPLAINANT                  :  Sri Uttam Kumar Paik, s/o Sri Badal Chandra Paik of Flat –D, 1^st Floor, 90, Swinhoe Lane, P.S. Kasba, Kolkata – 42.

 

-VERSUS  -

 

O.P/O.Ps                                :           1. Sri Sanjib Mondal,s/o Sri Sanjoy Mondal of                             85/1B, Swinhoe Lane, P.S. Kasba, Kolkata – 42.

2.. Gita Chanda, d/o late Prabhat Chandra Chanda

                                                            3.  Sandipan Chanda , s/o late Subhas Chanda

4.    Smt. Manju Chanda,w/o late Subhas Chanda of                      90, Swinhoe Lane, P.S. Kasba, Kolkata – 42.

5. The Branch Manager, State Bank of India, N.S. Road Branch, 8, Netaji Subhas Road, Kolkata – 1.

________________________________________________________________________

 

                                                            J  U  D  G  E  M  E  N  T

 

            Smt. Sharmi Basu, Member

            The petition of complaint made under section 12 of the C.P Act ,1986 has been filed by Sri Uttam Kumar Paik  against the O.Ps on the ground of deficiency in service on the part of  the O.Ps .

             It is the short case of the complainant that O.P-1 is the developer and O.P nos. 2 to 4 are the land owners. The complainant was looking for a suitable flat in the Kasba locality and learnt about the aforesaid new proposed construction in the said area by the O.P-1. Therefore, he approached the O.P-1 ,whose offer was found suitable and complainant entered into an agreement with the O.Ps on 31.8.2012 to purchase a self contained First floor flat , measuring more or less 600 sq.ft super built up area, northern side of the building being premises no. 90, Swinhoe Lane, Kolkata – 42 with the proportionate undivided impartiable share in land of the said premises at a total consideration of Rs.15,50,000/- . Complainant paid full consideration money and O.P-1 also handed over possession of the flat and also execution and registration of the deed of conveyance has also been completed. But the case of the complainant is that O.P-1 has given him a flat of 540 sq.ft instead of 600 sq.ft as per deed of conveyance and completion certificate was also not handed over to the complainant  and in this way the O.P has adopted unfair trade practice and liable to return the consideration  of 60 sq. ft to the complainant. It is also the case of the complainant that as per terms and conditions of the agreement the O.P-1 was bound to provide wooden door along with decorative mortise lock, eye hole and burglar chain but the O.P-1 provided only plywood door and nothing more. O.P-1 was supposed to provide a 15 amp plug point on both the bed rooms but the same has not been provided. The coat of primer in the doors and windows has not been done etc. Several requests for doing the jobs and to hand over completion certificate yielded no result and hence this case  praying for reliefs as mentioned in the prayer portion of the complaint petition. 

            The O.P-1 contested the case by filing written version denying all the allegations leveled against him contending inter alia that it was informed to the complainant that sanction was granted for two storied and if it will be possible further one floor will be constructed on the roof and accordingly completion certificate of the building will obtain in due course of time by way of D sketch which was also mentioned in the Development Agreement dated 15.7.2011. It is also the case of the O.P-1 that flat of the complainant is 625 sq.ft super built up area of each floor . He has prayed for dismissal of the case .

The O.P- 2 to 4 also  contested the case by filing written version denying all the allegations leveled against him contending inter alia that it is the matter of the developer and the purchaser. The case of these O.Ps is that intentionally and deliberately to harass them , they have been made parties in this case and they prays for exonerating them from this case .

Points for Decision

1. Whether the complainant is a Consumer or not.
2. Whether there is any deficiency in service on the part of the O.Ps or not.
3. Whether the complainant is eligible to get relief as prayed for partly or fully.

Decision with reasons

            All the points are taken together as they are interlinked.

            We have perused all the documents including the petition of complaint and the written versions filed thereto.  It appears from the record that the complainant has filed the instant case with allegation of incomplete works and also for delivery of lesser area of the flat in question with respect to the Deed of Conveyance as well as agreement for sale of the flat along with other prayers. From the report of the Engineer Commissioner we find that the super built up area of the flat in question is 575.62 sq.ft but in the deed of conveyance it is clearly mentioned that the complainant is eligible to get flat having super built up area of 600 sq.ft. Therefore, we are strongly of the opinion that O.Ps should refund the value of 24.38 sq.ft ( 600-575.62). Moreover, as per Engineer Commissioner’s report , the developer has not completed the flat as per contract as well as mentioned in the deed of conveyance.

            It is also observed by this Forum that for the aforesaid deficiency in service only the O.P-1 is liable and being land owners O.P nos. 2 to4 are not at all liable for the dispute mentioned in the instant case. There is also no deficiency in service on the part of the O.P-5.  Bank, for which no effective order is passed against O.P. 2 to O.P 5 . But due to inaction and deficiency in service on the part of the O.P-1 complainant has to suffer financial loss and tremendous mental agony and harassment and complainant is eligible to be aptly compensated by the O.P-1.

 

In this regard we are relying upon the decision of Hon’ble NCDRC [ iv (2012) CPJ 36 (NC)] in the case of   RAGHAVA ESTATES LTD Versus VISHNUPURAM COLONY WELFARE ASSOCIATION & ANR.,Where the Hon’ble NCDRC has been pleased to observe that delivery of incomplete flat  amounts to deficiency in service and developer is liable to compensate the purchaser / consumer.

            Thus all the points are discussed and all are in favour of the complainant.

            Hence,

                                                            Ordered

That the case is allowed on contest against O.P 1 with cost  and dismissed against O.P-2 to O.P. -5.

O.P-1 is directed to refund the amount towards cost of 24.38 sq,ft at the rate of Rs.2583/- per sq.ft to the complainant and also to pay Rs.1,00000/- (Rupees One Lac only ) towards compensation and cost of Rs.3000/- ( Rupees Three Thousand only ) to the complainant within 30 days from this date.

O.P-1 is also directed to hand over the completion certificate to the complainant within 30 days from this date.

Complainant may file execution case in case of non execution of the aforesaid Order within stipulated period.

Let a plain copy of Judgement be supplied to the parties free of cost as per rule.

 

 

Member                                   Member                                                          

 

 

Dictated and corrected by me

 

 

 

                        Member

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The judgement in separate sheet is ready and is delivered in open Forum. As it is ,

 

            Ordered

That the case is allowed on contest against O.P 1 to 4 and dismissed against O.P-5 with cost payable only by O.P-1.

O.P-1 is directed to refund the amount towards cost of 24.38 sq,ft at the rate of Rs.2583/- per sq.ft to the complainant and also to pay Rs.1,00000/- (Rupees One Lac only) towards compensation and cost of Rs.3000/- (Rupees Three Thousand only) to the complainant within 30 days from this date.

O.P-1 is also directed to hand over the completion certificate to the complainant within 30 days from this date.

Let a plain copy of Judgement be supplied to the parties free of cost as per rule.

 

 

Member                                   Member