Minakshi Chakroborty, Presiding Member.
The instant case has arisen out of a complaint filed under section 12 of the Consumer Protection Act (As amended till date)by the complainants herein. The case of the complainants in a capsulated form is that that they jointly purchased a flat having built up area of 1210 sqft. for their residential purpose from the Opposite Party nos. 1 and 2 as per the sanction plan shown to them. For the purpose of executing the registration process of the said flat, they also borrowed loan from the Opposite party no.3. It is also the case of the complainants that after perusing all the relevant documents and then being satisfied the Opposite Party no.3 sanctioned and disbursed loan of Rs. 12,25,000 (Rupees twelve lakh twenty-five thousand only) considering the face value of the said flat under Housing Loan Scheme of their Bank at Ratan Pure More Branch, Singur, vide loan agreement Ref no. ZLSW330000463/404/762/2012,in their favor on 10.10.2012. They have been paying EMI @ Rs 10,454/- (Rupees Ten Thousand four hundred fifty-four only) regularly against the said loan in order to repay the said loan.
It is also the case that the complainant purchased the said flat having a built-up area of 1210sqft. by a registered deed as registered before the District Sub-Registrar Singur Hooghly on 12.10.2012.Before purchase, the Opposite Party nos. 1 and 2 convinced the petitioners qua complainants to provide all amenities and facilities to the complainants and on good faith they purchased the said residential flat. Opposite party no. 1 being the sixteen anna owner of the landed property entered into a development agreement (notarized) with the Opposite Party no.2 on 05.07.2012.Opposite Party no.2 on the basis of the said development agreement developed apartment project of G+4 multistoried residential building over the said Schedule Property of the Opposite Party no. 1 in the name and style ‘SWAPAN CHATTERJEE BARI’ while the building plan was technically vetted by the authority of Zilaparishad Hooghly under the same name and style.
In the sale deed vide deed no. 4242 dated 12.10.2012, the Opposite Party nos. 1 and 2 agreed and promised to provide the best building materials as recorded in page 9 of the sale deed but after purchasing the said flat, they noticed quality of the building materials were very low for transpiring a lot of water absorption and dampness on all the outer and inner walls resulting into formation of fungus, particularly in the walls of the bedrooms of their said flat. According to them, Opposite Party nos. 1 and 2 had deviated from their promise and such dampness affected their skin. Again, there are tremendous absorption of water on the roof of the bed room and other room also. Dark brown and gray patched had developed all over the roof of the rooms, resulting in the formation of fungus. It affected their health. They were medically treated. It is their contention that due to watering even through the beams and walls and just bottom of the roof for having holes together having no plastering or cementing they have been facing hardship and agony to live under the roof.
It is their further contention that it could have not been seen at the time of possessing. They also observed that cementing has been started peeling of the outer wall, roof of the bed room and there are all chances of getting serious injury which may cause even death and they are thus passing their days in the said flat having fear in each moment. It is stated that due to poor system of drainage and non-availability of drainage pipe line it has been causing cracks, linkage or soaking of rain water of the entire roof, the said building. Due to seepage of water through the beams, corroding, thereby the steel has been started thereby endangering the entire structuring of the building. Moreover, due to the insufficient storage system of water they did not get sufficient supply of water which the complainants as well as other flat owners are complainant severally, required in their daily life. They verbally requested to the Opposite party nos. 1and 2 for repairing all of those defects but the opposite party did no pay heed to the complainants.
It is contended that Such kinds of negligence and ignorance of the Opposite party nos. 1 and 2 resulting said flat in uninhabitable condition for residence and for which the complainants also compelled to borrow loan for repairing purpose from the Opposite Party no. 3 on 25.05.2017 amounting to Rs 2,00,000/- (Rupees Two Lakhs Only) and so they have been also paying EMI in every consecutive English calendar month amounting to Rs. 4128/- per month. It is also contended that some portion of the structure of this building was collapsed for using of bellow quality of materials and moreover the local media also covered the said news and published in daily newspaper and in support of which the documents marked Annexure-VII has been submitted. It is further contended that the Opposite Party nos.1 and 2 for their own interest and in connivance permitted Opposite Party no.4 by letting out the space to run a casting plant (Manufacturing Unit) at the ground floor and within the boundary of the said building/apartment which is in violation of the clauses of the sale agreement and sale deed. It is further contended that from sanction plan being Annexure IV of the said building, it would be found that the said ground floor was left only to be treated as car parking space and not for the purpose of any other uses of commercial space or shop room. It is their case that due to running of casting plant (Manufacturing Unit) at the ground floor, it had been causing huge vibration and thereby causing damage to the building and its huge noise therewith swayed the lives of the flat residents including the complainants into a deadlock of residence. The complainants also informed and lodged a complaint before the Public Grievances Cell, West Bengal Pollution Control Board on 04.02.2015. After Proper investigation and after hearing both the parties on 04.09.2017, it directed to the Environmental Engineer Hooghly Regional Officer of the State Board to cause inspection and to submit report for taking further action. Thereafter on proper investigation and report by the said engineer, the State Board directed Opposite Party no. 4 to stop the manufacturing unit while same is still running and the Opposite Party nos. 1, 2 and 4 threatened the complainants with dire consequences. Being afraid, the complainants also informed the matter to the local P.S by perusing the said Order of the State Pollution Control Board and also requested the O.C of the local P.S to stop such illegal act of the Opposite Party nos. 1,2 and 4 but the local P.S did not take any actions against them and also disobeying the order of the State Pollution Control Board It is also their contention that they along with other flat members also protested but the Opposite party nos. 1,2 and 4 being very dangerous and desperate in nature no other else proceeded further. They threatened the complainants and also damaged their one new motor cycle with help of the local goons. The Complainants also lodged G.D.E. in the local P.S vide no. 1333 dated 22.11.2017.
It is their contention that safety and security are in big question and moreover because of deception and negligence of the opposite parties they have suffered a lot and they have been suffering a lot till date.
That the complainants on several occasions tried to paying self-tax/ levy before the authority of the Opposite Party no. 5 but the Opposite Party no. 5 refused to take taxes from the complainants because of the huge amount of the previous taxes of the schedule mentioned land and building are pending before the Opposite Party no. 5 and the Opposite Party nos. 1 and 2 are intentionally not paying due amount of taxes before the Opposite Party no.5 and till today the said schedule mentioned flat has not been mutated in the name of the complainants.
In such facts and circumstances having no other alternative they moved before the forum with the a petition of complaint with the prayer(a) An order directing to the Opposite Party no 1 Sri Swapan Chatterjee, and Opposite Party No. 2 Shri Gopal Hazara to repair the said schedule flat in a habitable condition. An order directing to the Opposite Party no 1 Sri Swapan Chatterjee, and Opposite; (b) Party No 2 Shri Gopal Hazara to refund the amount Rs 12,25,500/- with 10% interest from the date of purchasing of the schedule flat ; (c) An order directing to the Opposite Parties to pay Rs loan for 2,00,000/- with 5%% borrowed repairing purpose; (d) An order directing to the Opposite Parties to pay Rs 50,000/- 50,000/- for such loss and Rs for mental harassment and Rs 25,000/- as the cost of the legal proceeding; and (e) An order directing for any other relief or relieves as your Honour may deem fit and proper. it is stated that the O.P. nos.1 and 2 in spite of receipt of the summons did not appear before the Ld. Forum and did not contest the case on merit. Hence the case was running exparte against them. More over from the Commissioner's report Ld. Court will find that the averments made in the compliant are totally true and the report filed by the inspection Commissioner supported the deficiency in service on the part of the Opposite Party No. 1 and 2.The cause of action of this suit arose on 12.10.2012, 10.10.2012, 23.3.2013, 4.2.2015, 17.8.2017, 4.9.2017, 22.11.2017 and continuously thereafter.
The opposite party no. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him. This opposite party submits that the opposite party nos. 1 and 2 by entering into a development agreement on the terms and conditions therein mentioned, the developer/ promoter constructed the said G+4 Storied building and the being satisfied the complainants entered into an agreement for sale of the alleged flat and after applying for loan the opposite party no. 3 sanctioned the home loan in favour of the complainants and according on executing of the loan documents by the complainants and as per direction by the complainants the loan amount was disbursed on registration of Deed of Conveyance concerning the schedule mentioned flat in favour of the borrowers herein the complainants and the said Deed of conveyance and the said flat is under charge with this answering opposite party by way of Equitable mortgage by the complainants and after registration of the deed of conveyance the complainants took possession of the said flat and started living thereon and on application by the complainants the opposite party bank further sanctioned a loan for repairing of the flat of their habitation and the complainants not paid the EMIs regularly as per sanction terms and conditions and lastly they stopped repayment of installment since June 2018 and the loan account going towards NPA and the complainants filed this instant case to save their back and to escape from their loan repayment liability and made them unnecessary party as such this opposite party bank is required to be expunged from this case.
The record reveals that that Ex parte runs against the OP nos. 1, 2, 4 and 5 vide order no. 13 dated 22.5.2019.
The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.
Complainants have filed written notes of argument. The evidence on affidavit and written notes of argument are taken into consideration for passing final order.
Argument as advanced by the agent of the complainant in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite party or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite party?
- Whether the complainant is entitled to get relief or not?
DECISIONS WITH REASONS
All the points are taken up together for easiness of the discussions of this case.
- In the light of the discussion hereinabove and from the materials on record, it transpires that the complainants are the Consumers as emanated from the expression of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainants herein are 000the consumers of the opposite parties 1.2 and 3.
- The complainants are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainants as per prayer of the petition of complainant it appears that those are not exceeding Rs. 20,00,000/-. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.
- From the evidence on record and the documents exhibited it is found that there was deficiency of service and which arose due to gross negligence and fault on the part of the OP nos. 1 and 2 who have been failed to counter such finding by any cogent evidence. It is on record they did not turn up to contest or to make out their case reasons of which are best known to them as to why even after receipt of notice they did not appear to their fair case.
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it is
that the complaint case being no. 255 of 2017 be and the same is allowed ex parte against opposite party nos. 1, 2, 4 and 5 with a litigation cost of Rs. 8000/- to be paid by the opposite party nos. 1 and 2.
The opposite party nos. 1 and 2 are directed to pay a sum of Rs. 1,50,000/- for repairing the impugned flat within 45 days from the date of passing this order.
The opposite party nos. 1 and 2 are also directed to pay compensation amounting to Rs. 40,000/- to the complainant for mental pain and agony within the stipulated period as stated above.
The opposite party nos. 4 and 5 are exonerated from this proceeding.
At the event of failure to comply with the order the opposite party nos. 1 and 2 shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 15 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
