West Bengal

Paschim Midnapore

CC/19/2010

Smt. Swapna Roy - Complainant(s)

Versus

Sri Supriya Pratihar - Opp.Party(s)

07 May 2012

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No. 19/2010                                                         Date of disposal: 07/05/2012                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. P. K. Sarkar.

                                                      MEMBER :  Debi Sengupta.

                                                      

    For the Complainant/Petitioner/Plaintiff: Mr. D. Mondal.

    For the Defendant/O.P.S.                          : Mr. A. Mondal.

             Smt. Swapna Roy, W/o-Sri Anukul Roy, resident of Aurobinda Nagar, P.O.-Midnapore,  

             Dist-Paschim Medinipur………Complainant.

                                                              Vs.

1. Sri Supriya Pratihar, S/o-late Sunirmal Pratihar resident of Head Post Office Road Midnapore, P.O.-Midnapore, Dist-Paschim Medinipur
2. Sri Tarit Kumar Khan, S/o-Rabindranath Khan resident of Aurobinda Nagar, Midnapore, P.O.-Midnapore, Dist-Paschim Medinipur
3. Sri Dipankar Roy, S/o-late Soroshipada Roy resident of Abash, Midnapore, P.O.-Abash, P.S.-Kotwali, Dist-Paschim Medinipur………………Ops.

             The complainant’s case, in brief, is as follows:-

             The Op. No.3 proposed to construct a G+3 storied building over the land in plot no.1701 belonging to the Op. no.1 & 2 under an agreement between them and on 28/09/2005 the complainant entered into an agreement with Op. no.3 to purchase the flat no. A-4 in the 1^st floor of the building measuring 820 sq. ft. for Rs.8, 20,000/-. Subsequently the Op. no.3 executed a registered sale deed on 22/07/2008 for the flat measuring 920 sq. ft. for Rs.9, 20,000 /- in favour of the complainant. Though the price of the flat was Rs.9, 20,000/-, the Ops realized Rs.10, 33,917/- by creating pressure upon the complainant and neglected to refund the excess amount of Rs.1,13,917/- paid by the complainant. At the time of registration of the sale deed the Opno.3 willfully avoided certain points, which were mentioned in the agreement to sale entered between the complainant and Op no.3. Moreover the Op no.3 not only failed to provide the garage space to the complainant and other flat owners in the parking area as promised by them, but also illegally constructed the parking area on the common passage. The Op no.3 also failed to provide separate water tank with

Contd………….P/2

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separate pipe line for each flat owner as assured by them earlier, and they used cement only for construction of the staircase-landing instead of artificial gray stone as mentioned in the agreement. The Op.no.3 kept the well and the path way under lock and key, which were meant for entrance and exit for of the flat owners. The Opno.3 have also kept the garage space on the ground floor of the building complex under lock and key and thereby compelled the complainant and others to park their respective vehicle on the pathway. The Opno.3 illegally constructed a transparent-sheet shade touching the boundary wall and the roof of the ground floor causing inconvenience to the complainant. According to the complainant, the Op no.3 refused to act as per agreement entered by him with the complainant and declined to refund the excess amount realized from the complainant. As such the complainant filed the instant complaint alleging deficiency of service of the Op no.3, with prayer for issuance of directions upon the Opno.3 to refund the excess amount paid by the complainant with interest thereon, to remove the transparent-sheet shade illegally constructed by the Op no.3, to pay compensation of Rs.2, 00,000/- for their deficiency of service to the complainant, and the litigation cost, to the complainant.  

                 The Ops contested the case by filing their W/O contending inter alia  that on 28/9/2005,  the date of execution of the agreement to sale of the flat in question, the complainant paid Rs.1,50,000/- only for which the Op. no.3 granted a receipt in plain paper and subsequently in the month of February 2006 the Op. No.3 issued a computerized receipt for such payment of Rs.1,50,000/- on 28/9/2005,while he forgot to take back the receipt granted to the complainant on plain paper earlier on 28/9/2005 but the complainant with fraudulent objective/motive is using both the receipts claiming payment of Rs.3,00,000/- to the Op. no.3; that at the instruction of the complainant, the Op. No.3 finished the floor  of the complainant’s flat with marble,  the walls of two bathrooms and kitchen of the flat with glaze tiles, and the inner walls of the entire flat with putty and plastic paint; and that the Op. no. 3 also provided  grills in three balconies  and collapsible gate at the main door of the complainant’s flat and decorated the drawing room of the complainant’s flat with false ceilings etc. as par instruction of the complainant and the complainant agreed to pay for such extra works done by the Op. No.3 at the complainant’s flat at the prevailing market rate;  that the Op. No.3 also arranged for a separate transformer for supplying electricity to all the flat owners of the building complex at the cost of Rs.1,88,536/- and installed the lift in the housing  complex for the use of all the flat owners at the cost of Rs.3,70,000/- and as such the complainant is liable  to pay Rs.37,236/- towards her proportionate share of the costs for installation of lift and transformer, which was paid by all other flat owners; that the complainant was required to pay the costs for the extra works done by the Op. No.3 in her

Contd………….P/3

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flat, in addition to the price of the flat measuring 920 Sq. ft. amounting to Rs.9,20,000/-; and that after final accounting the complainant paid Rs.68,177/- towards the price of the flat, on the date of execution of the sale deed in favour of the complainant; and that the complainant filed the instant case, when the Op. No.3 demanded the complainant’s share of Rs.37,236/- towards the costs for installation of lift and  transformer at the housing complex. According to the Ops., they have already constructed a common two wheeler garage as mentioned in the agreement entered by them with the flat owners and all flat owners including the complainant have been using the same; and that there was no agreement for providing separate parking space for the complainant and other flat owners; and that the two wheeler garage was constructed  before execution and registration of the sale deed and same has been shown in the sketch  map annexed with the sale deed executed by the Op no.3; and that the water tank with separate pipe line has been provided to each of the flat owners before execution and registration of the sale deed.  The Ops further contended that artificial gray stone meant neat cement as par PWD schedule and as such the neat cement was used for the construction of landing of the staircase, as par agreement entered with the complainant and the other flat owners; and that the Ops handed over the lock and key of the main gate of the apartment to one of the flat owners namely Dilip Bhattacharya  and as such the question of keeping any portion of the building complex under lock and key by the Ops as alleged by the complainant, does not arise; and that the building complex under the name and style Srinjoy Enclave is now being managed by an unregistered cooperative society formed by the complainant and others. Accordingly, the Ops.  sought for dismissal of the complaint filed by the complainant.

The points for decisions are :

     (1)Whether the complainant is a consumer within the meaning of the section   2 (i) (d) (ii) of the C.P. Act, 1986 ?

     (2)Whether the Ops. were deficient in service within  the meaning of section 2 (1)(g) read with section 2(1)(0) of the C. P. Act, 1986 ?  

      (3) Whether the complainant is entitled to get the reliefs as sought for ? 

Decisions with reasons : 

Point no. 1.

             It is not disputed that the Op. No.3 constructed the G+3 storied building under the name and style Srinjoy Enclave in a plot of land at Mouza of Narampur owned by the Op. Nos. 1&2 under an agreement between them, and on 28/9/2005 the complainant entered into an agreement with the Op. No.3 to purchase the flat No.A-4 on the South-Eastern side of the first floor of the building measuring about 820 Sq. ft.  at a  price of Rs.8,20,000/- and that subsequently  after

Contd………….P/4

 

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construction of the building the Op. No.3 executed a registered sale deed on 22/7/2008 in respect of the said flat having super built area of 920 Sq. ft.  in favour of the complainant for  a consideration of Rs.9,20,000/-. According to the complainant, the Op. No.3 realized Rs.10, 33,917 from the complainant by putting pressure upon the complainant before the execution of the sale deed and subsequently he refused to refund the excess amount of Rs.1, 13,917/- realized from the complainant; and that the Op no.3 failed to provide garage space, separate water tank and artificial gray stone in the staircase-landing of the building as par agreement entered by him with the complainant.  As such the complainant filed the instant complaint praying for issuance of direction upon the Op no.3 to refund the excess amount of Rs.1,13,917/- realized from the complainant with up to date interest thereon and to pay a compensation for their deficiency in service and the litigation cost.  Under the given facts and circumstances, there is no doubt that the complainant is a consumer of the Ops and the instant complaint is maintainable before this Forum for the alleged failure of the Ops to provide  the amenities and service as par agreement entered between them.

Point Nos.2 & 3 :

                 It is not disputed that the Op. No.3 being a developer constructed the G+3 storied building complex under the name and style Srinjoy Enclave at plot No.43 within Word No.11 of Mouza, Narampur within Medinipur Municipality under an agreement with the owners of the land, the Op Nos.1&2, and the complainant entered into an agreement with the Op No.3 to purchase a flat measuring about 820 Sq. ft. on the South-Eastern side of the first floor of the building. for a consideration of Rs.8,20,000/-; and that subsequently the Op. No.3 executed a sale deed in respect of the flat No.A-4 having  super built area of 920 Sq. ft. on the South-Eastern side of the first floor of the building  for a consideration of  Rs.9,20,000/-. According to the complainant, the Op. No.3 realized Rs.10, 33,917/- from the complainant before execution of the sale deed by the PW-3 on 22/7/2008, by creating pressure upon the complainant and subsequently he refused to refund the excess amount of Rs.1,13,917/- paid by the complainant, and rather demanded the additional amount of Rs.37,236/- towards the proportionate share of costs for installment of a transformer and a lift at the building complex for the use of the complainant and other flat owners. The money receipts marked Exhibit 1 series  disclosed that the Op. No.3 received Rs.3,00,000/-  (Rs.1,50,000 + Rs.1,50,000/-)  on 28/9/2005 against two receipts ,  Rs.1,00,000/- on 25/11/2005, Rs.1,00,000/- on 15/2/2006, Rs.50,000/- on 6/3/2006, Rs.70,000/- on 14/3/, Rs.30,000/- on 10/8/2006, Rs.2,50,000/- on 25/1/2007, Rs.50,000/- on 6/5/2007, Rs.68,117/- on 21/7/2008 and Rs.15,800/- on 03/9/2008 from the complainant. Thus the receipts produced by the complainant disclosed that the Op No.3 received the total amount of Rs.10, 33,917/- from the complainant, out of which Rs.10, 18,117/- was received before the registration of the sale deed on

Contd………….P/5

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22/7/2008 and Rs.15, 800/- was received on 03/9/2008 after execution of the sale deed.  The Op. No.3 contended that the complainant paid Rs.1, 50,000/- only on 28/9/2005 against a receipt written on a plain paper and subsequently in the month of February 2006 he issued a computerized back-dated receipt for such payment on 25/9/2005 but forgot to take back the receipt granted to the complainant on plain paper on 25/9/2005. Referring to the stipulation regarding the mode of payment towards the price of the flat in question as mentioned in the agreement entered by the Op. No.3 with the complainant on 28/9/2005, the Op. No.3 contended that the complainant was required to pay Rs.1, 50,000/- only on 28-9-05 as stipulated in the agreement and as such the question of payment of Rs.1,50,000/- twice on 28/9/2005 by the complainant, did not arise. To justify the fact that the computerized the receipt dated 28/9/2005 was granted by the Op. No.3 in the month of February 2006 with back date 28/9/2005, the Ops contended that the revenue stamp used on that receipt was not in circulation on 28/9/2005, and to prove the same they referred the receipt dated 28/9/2005 to the General Manager, India Security Press, Nasik Road, to ascertain whether the revenue stamp used on that receipt was in circulation on 28/5/2009. But the report received from the General Manager, India Security Press, Nasik Road, disclosed that the revenue stamp used on the receipt was in circulation since 01/7/2003. Thus the attempt of the Op no.3 to prove that the stamp used on the receipt dated 28/9/2005 was not in circulation on that date, did not succeed. Be that as it may, according to the complainant, he paid Rs.1, 50,000/- in cash in the morning of 28/9/2005 and she again paid Rs.1, 50,000/- to the Op. No.3 in the afternoon of  28/9/2005 by cheque.  But in her cross-examination, the complainant admitted that she made all payments to the Op. No.3 by cheque, and such payments have been reflected in her Bank Account Pass Book (s).  The complainant has failed to produce the relevant account showing withdrawal of Rs.1, 50,000/- in cash from the bank or from any other financial institution to pay  Rs.1, 50,000/- in cash to the Op. No.3 in the morning of 28/9/2005 as contended by her. Having regard to the admission of the complainant (PW1) that he made all payments to the Op. No.3 by cheques, the claim of the complainant that she paid Rs.1, 50,000/- in cash to the Op. No.3 in the morning of 28/9/2005, cannot be reconciled, particularly when the complainant failed to produce any documentary evidence regarding the source of such payment. It is also not understood what prompted the complainant to pay Rs.1,50,000/- in cash to the Op. No.3 in the morning of 28/9/2005 when admittedly the agreement for sale of the flat in question was entered in the afternoon of 28/9/2005 and she paid Rs.1,50,000/- by cheque as stipulated in the agreement. In view of the aforesaid facts and reasons, the contention of the Op. No.3 that he granted Rs.1, 50,000/- in plain paper at the time of the execution of the agreement to sale of the flat in question and subsequently he granted a computerized a back-dated receipt for such payment, but forgot to take back the

Contd………….P/6

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receipt granted to the complainant earlier on plain paper and the complainant falsely claimed to have paid Rs.1,50,000/- twice on 28/9/2005, cannot be  brushed aside. On the other hand, if the contention of the Op. No.3 that the complainant paid Rs.1,50,000/- only on 28/9/2005  against a receipt written on a plain paper and subsequently in the month of February 2006 he issued a computerized back-dated receipt for such payment on 25/9/2005 but forgot to take back the receipt granted to the complainant on plain paper on 25/9/2005, is accepted, then the complainant was/is still liable to pay Rs.16,083/- towards the price of the flat. So the contention of the Op. No.3 that he received Rs.68, 117/- towards the price of the flat after final accounting at the time of execution of the sale deed in favour of the complainant, cannot be reconciled with any further liability to pay by the complainant so far price of the flat in question is concerned.

             The complainant contended that she was not required to pay any amount on the date of the execution of the sale deed on 22/7/2008 as the Op. No.3 realized  on Rs.10,33,917/- (which was much more than the price of the flat in question) before the execution of the sale deed. But the receipt dated 03/9/2008 disclosed that the complainant paid Rs.15,800/- to the Op. No.3 after execution of the sale deed and the receipt dated 21/7/2008 disclosed that the complainant paid Rs.68,117/- to the complainant immediately before the  execution of the sale deed by the complainant on 22/7/2008. The Op no.3 contended that the complainant paid Rs.68,117/- on 21-07-08 after final accounting and that subsequently she paid Rs.15,800/- for extra works done by the Op. no. 3 in her flat. The Op no. 3 asserted in their  w/o that, at the instruction of the complainant, the Op. No.3 finished the floor  of the complainant’s flat with marble,  the walls of two bathrooms and kitchen of the flat with glaze tiles and  the inner wall of the entire flat with putty and plastic paint, and that the Op. no. 3 also provided  grills in three balconies  and a collapsible gate at the main door of the complainant’s flat and decorated the drawing room of the complainant’s flat with false ceilings etc. as par instruction of the complainant and the complainant agreed to pay for such extra works done by the Op. No.3 at the complainant’s flat at the prevailing market rate, which has not been disputed by the complainant. According to the complainant, she paid costs of said extra works to the Op. no.3 separately but failed to produce any document for such payment. As the complainant paid  Rs.15,800/- by cheque on 3-9-08, long after execution of the sale deed by the Op. no.3 on 22-7-2008, there is reason to believe that the complainant paid the amount of Rs.15,800/- for extra works done by the Op. No.3 in her flat, which again can not be reconciled with the complainant’s claim that she paid Rs.10,33,917/- towards the price of her flat.

              In view of the aforesaid contradictory claims in the matter of payments made by the complainant to the Op. No.3 towards the price of the flat in question, the  evidences on record appear to be insufficient to ascertain whether the complainant made any excess payment towards

Contd………….P/7

- ( 7 ) -

the price of the flat in question and whether she separately paid the costs of the extra works done in her flat by the Op. No.3.  Such dispute regarding the payments made by the complainant

to the Op. no.3, does not appear to be any deficiency of service within the meaning of section      2(1)(g) read with section 2(1)(0) of the C. P. Act, 1986, and same should be resolved by filing a regular suit for account before the competent court of law. In similar situation, the Hon’ble National Commission held in its decision in D.S. Kohli VS. Baldev Singh Pabla & another reported in III (2001) CTJ p274 that such complicated question of facts can not be adequately and properly adjudicated under summery jurisdiction of the Consumer Dispute Redressal Forum and the complainant should seek remedy by filing an appropriate civil suit before the competent civil court.              

                Now let us see whether the Op. No.3 failed to provide separate garage space and separate over-head water tank in terms of the agreement entered between the Op. No.3 and the complainant. The evidence on record disclosed that the complainant was provided with a separate over head water tank. In fact the complainant has admitted in her x-examination that she has been provided with a separate over-head water tank  It is also evident from the evidence on record that the complainant and other flat owners of the Srinjoy Enclave Housing complex were provided with separate over head water tanks inter-connected with the common pipe line for supplying water therein, and that the Op. No.3 provided a common two wheeler garage space on the South side of the building complex which was/is being used by the complainant and other flat owners.  There appears no provision in the agreement to sale executed by the Op. No.3 that the complainant would be provided with a separate two wheeler garage space in the building complex.  So, the Op. No.3 does not appear to be deficient in service in the matter of providing garage space and separate overhead water tank to the complainant as alleged by the complainant.

                  The complainant further alleged that the Op. No.3 constructed the landing of the stair case of the building complex with cement only while he agreed to provide artificial gray stone in such landing of the stair case as par agreement to sale executed by him and as such the Op no.3 was deficient in providing the service as promised by him in the agreement.  The Op. No.3 asserted that the stair case was made of marble stone in stead of neat cement except the landing of the stair case which was finished with neat cement. It has been further asserted by the Op. No.3 that, as par PWD scheduled there was no distinction between the artificial gray stone and neat cement used for construction of the landing of the stair case. But the PWD schedule produced by the Op. No.3 does not support the fact that artificial gray stone and neat cement were substantially same The agreement entered between the complainant and the Op no.3 disclosed that the Op. No.3 agreed to use artificial gray stone for construction of the stair case..  PW-3, who was the technical

Contd………….P/8

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supervisor in the matter of construction of the Srinjoy Enclave building complex, asserted in his evidence that the stair case was finished with marble stone in stead of neat cement except the landing portion which was made of neat cement.  However, PW-3 admitted in his cross-examination that there is difference between artificial gray stone flooring and neat cement flooring. Since the stair case meant for common use of all the flat owners was made of marble stone (which is costlier than artificial gray stone) except the landing thereof which was made of neat cement only instead of artificial gray stone as mentioned in the agreement, the grievance of the complainant alone in the matter of construction of the common stair case in slight variation of the agreement entered between the complainant and the Op. no.3, seems to be unjust and unreasonable and can not be considered as deficiency in service as alleged, particularly when other flat owners have not come forward to support the same.          

         The Op. No.3 asserted that he arranged for installation of a separate transformer for electric connection of the flat owners of the building complex on payment of Rs.1,88,536/-, and  that he also installed a lift in the building for use of all the flat owners at the cost of  Rs.3,70,000/- He further asserted that the complainant filed this case against them, when he demanded the proportionate cost of installation of the transformer and the lift for the use of all the flat owners. PW3, one of the other flat owners of the building complex, admitted in his cross examination that he already paid the proportionate cost for installation of the lift and transformer by the Op. No.3.  Though the complainant claimed to have obtained electric connection in her flat directly from the WBSEDCL, she failed to adduce any cogent evidence to show that her electric connection was given from the transformer other than the transformer installed for the use of all other flat owners of the building complex at the cost of the Op. No.3. As such there was little justification for the complainant to disown her liability to pay the proportionate cost for installation of the lift and transformer at the expenses of the Op. No.3 for use of all the flat owners of the building in question. It may be noted that the Op. No.3 produced receipts for payment of Rs.1, 88,536/- to the WBSEDCL for installation of the transformer for supply of electricity to all the flat owners, while fact of installation of the lift at the building complex by the Op. no.3 for the use of all the flat owners of the building complex remained undisputed.

               Finally Ld. Lawyer pointed out Para 20 of the affidavit of evidence of the complainant (PW1) and contended that the complainant demolished her own case by making the  statement in Para 20 of her affidavit. In Para 20 of her affidavit of evidence in chief, the complainant stated “It is categorically stated that I had paid only Rs.1, 50,000/- on 28/9/2005 and I had no occasion to pay Rs.3, 00,000/- on 28/9/2005. That my husband is an evil designing person and hatch the conspiracy

Contd………….P/9

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to cheat the opposite parties and to avoid payment due to the Op. No.3 on account of installation of lift and transformer and for extra work done as stated above.

                The affidavit of evidence of the complainant to that effect, cast a cloud about the bona fide of the complainant’s case. It is argued on behalf of the complainant that the complainant made the statement in Para 20 of her affidavit of evidence in chief in order to deny the Ops’ case and as such same should not be construed otherwise than denial of this Ops’ case.  The manner in which the complainant made said statement on affidavit is ridiculous and such specific assertions by the complainant cannot be judicially construed as mere denial of the Ops’ case.  .The complainant seems to have signed the affidavit in chief written in English without understanding meaning thereof.  Ld. Lawyer, who prepared the affidavit, seems to have procured the signature of the complainant on the affidavit without explaining the contents thereof and the notary public seems to have mechanically put his signature and seal on the affidavit without making the complainant aware of the contents of such affidavit. Such reckless statement of the complainant on affidavit definitely cast doubts about credibility of her entire affidavit of evidences in support of her case.

               In view of the aforesaid facts and reasons the complaint filed by the complainant is liable to be dismissed.

                            Hence, it is

                                                Ordered

                                                              that the complaint be dismissed on contest. The parties do bear their respective costs.               

                Let the copies of the judgment be supplied to the parties free of cost. 

Dic. & Corrected by me

                                                                       I agree                      

              

         President                                               Member                              President

                                                                                                              District Forum

                                                                                                           Paschim Medinipur.