West Bengal

South 24 Parganas

CC/280/2015

Sri Chittaranjan Dey, S/O Late Satis Chandra Dey. - Complainant(s)

Versus

Sri Subir Rakshit, S/O Samir Rakshit. - Opp.Party(s)

Arindam Roy.

15 Nov 2016

ORDER

DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM

SOUTH 24 – PARGANAS ,

AMANTRAN COMPLEX, BARUIPUR, KULPI ROAD, KOLKATA-144

 

         C.C. CASE NO. _280_ OF ___2015__

 

DATE OF FILING : 12.6.2015                             DATE OF PASSING JUDGEMENT: 15.11.16

 

Present                        :   President       :   Udayan Mukhopadhyay

 

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

                                                                             

COMPLAINANT        :     Sri Chittaranjan Dey,s/o late Satis Chandra Dey of    

                            31/1E,  Old Ballygunge 1^st Lane, P.S. Kareya, Kolkata – 19.

 

-VERSUS  -

 

O.P/O.Ps                            :  Sri Subir Rakshit, s/o Samir Rakshit of 143/64, Picnic Garden Road, P.S. Tiljala, Kolkata – 39.

______________________________________________________________________________

                                                            J  U  D  G  E  M  E  N  T

Mrs. Sharmi Basu, Member  

In a nutshell the case of the complainant is that he is the absolute owner of the premises measuring 3 cottah 2 chittak 20 sq.ft at 171/1B, Picnic Garden Road, Kolkata – 39 and with an intention to construct a G+4 storied building contacted with the O.P and executed a development agreement with the O.P on 20.06.2011 with share 50:50 ratio of the building with an undertaking to complete the work within 18 months from the date of execution of the agreement. But the O.P handed over possession of the incomplete flats beyond the period of 18 months violating clause 17 of the said Development Agreement. Complainant requested the O.P to complete the incomplete works like finishing and fixation of windows in ground floor, first floor, top floor of owner’s allocation , shortage of owner’s allocation and others and sent letter but the O.P ignored to fulfill the demand of the complainant. Hence this case praying for handing over possession certificate, completion certificate, payment of Rs.7,71,520/- for shortage of area measuring 385.76 sq.ft, finishing windows at the 1^st floor, ground floor and top floor, Rs.500/- per day due to delayed delivery of possession after 18 months from the date of development agreement, to remove the 1^st floor external 5” thick wall which made by the O.P in place of 8” thick, compensation Rs.2 lacs, cost Rs.50,000/- etc.

The O.P contested the case by filing written version denying all the material allegations leveled against him and contended inter alia that the case is not maintainable and a Money Suit no. 3153 of 2015 has been filed against the complainant in the Civil Court and there an ad interim order of injunction has been passed against the complainant and when a civil suit is pending, this case is not maintainable before this Forum. The positive case of the O.P is that he has delivered possession of the flat in complete condition and never violated any terms and conditions of the development agreement question of possession letter and completion certificate does not arise at all on the ground that complainant has assured that he and his son will arrange for completion certificate. The present case is frivolous, false and should be dismissed .

            After scrutinizing four corners of the case following points are in limelight :

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 for the sake of inconvenience.

After perusing the complaint, written version, evidence of both sides and all the documents brought before this forum and hearing in full from both the ld. Advocates it is crystal clear that the complainant O.P being the owner of the premises has entered into a development agreement on 20.6.2011 with the O.P/developer and complainant is in possession of the suit property and it was agreed between the parties as per development agreement that the share of the building will be distributed in 50-50 ratio . Therefore, 50% share of the developer will be treated as “Consideration “and thus the complainant is a “Consumer “as per definition under section 2(1)(d)(ii) of the C.P act, 1986. Thus point no.1 is discussed and the same is in favour of the complainant.

It is observed from the record that the complainant has alleged about the incomplete works with respect to the flats in question which is under owner’s allocation, which was denied by the Ld. Advocate for the O.P who has filed some photograph from where it reveals that the suit property is complete in all respect.  On the other hand though the complainant has alleged about the incomplete works but the complainant has miserably failed to establish the same through any cogent evidence nor even a scrap of paper has been filed . Moreover, it is settled principle of Law that burden of proof lies upon the parties who has raised the same. 

Here in the instant case complainant has raised allegation of complete works but neither established the same through any evidence nor has prayed for appointment of any Engineer and/or ld. Advocate Commissioner for inspection regarding the incomplete works and measurement of the flat. Therefore, this Forum has no other alternative but to reject the prayer of the complainant regarding incomplete works and measurement of the flat. 

In the instant case it is also needed to be mentioned that a civil suit is pending before the competent court of law which is filed by the O.P,where competent court of law has granted interim injunction on the suit property.  Therefore, until and unless the aforesaid case is disposed of by the concerned Civil Court, the completion certificate of the suit property cannot be handed over by the O.P as completion certificate by the competent authority is always given regarding completion of the building. But it is beyond doubt that complainant  of the instant case is very eligible to get completion certificate from the O.P as per provision of Law and O.P is liable for deficiency in service as O.P has not handed over  the completion certificate through the complainant till the date of injunction granted by the aforesaid competent court of law and complainant has to suffer mental agony and harassment for the aforesaid deficiency in service on the part of the O.P, for which he is eligible to be aptly compensated.

From the record it appears that O.P has filed a letter of possession dated 15.12.2013 in the name of the complainant with respect to the suit property in question ( Exhibit II). On the other hand complainant in the complaint petition has prayed for direction to the O.P to issue and hand over possession letter to the complainant with respect to the owners ‘allocation of the premises in question. In this regard we are of the opinion that we have not find any cogent document which can establish that the O.P has handed over the possession letter  , a copy of which is filed before this Forum . So, O.P should be directed to hand over the same to the complainant ,if not given.

Therefore, in light of the above discussion it is opined by this Forum that the case of the complainant be allowed in part and the same is allowed.

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

Hence,

                                                            Ordered

That the case be and the same is allowed on contest with cost in part.

The O.P is directed to pay compensation to the tune of Rs.10,000/- and litigation cost Rs.5000/- to the complainant within 30 days from the date of this order.

The O.P is also directed to hand over possession letter to the complainant within 30 days from the date of this order.

All orders should be complied with within the stipulated period ,failing which, O.P has to pay interest @10% p.a upon the total decreetal amount till full and final compliance of this order in its entirety.

Complainant is at liberty to file execution case after the stipulated period is over.

Let a plain copy of this order be handed over to the parties free of cost.

 

Member                                                           Member                                               President

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The Judgment is ready and is delivered in open Forum. As it is,

 

                                                            Ordered

That the case be and the same is allowed on contest with cost in part.

The O.P is directed to pay compensation to the tune of Rs.10,000/- and litigation cost Rs.5000/- to the complainant within 30 days from the date of this order.

The O.P is also directed to hand over possession letter to the complainant within 30 days from the date of this order.

All orders should be complied with within the stipulated period ,failing which, O.P has to pay interest @10% p.a upon the total decreetal amount till full and final compliance of this order in its entirety.

Complainant is at liberty to file execution case after the stipulated period is over.

Let a plain copy of this order be handed over to the parties free of cost.

 

Member                                                           Member                                               President