In epigrammatic, the case of the Complaint, is that, the Complainants had purchased a shop room on the Ground floor of a multistoried building by a Sale Deed on 19.10.2012 from the Opposite Party No. 1 for a total consideration amount of Rs. 4,00,000/- only. The Opposite Party No. 1 had agreed to deliver a common bathroom cum privy to the Complainants for common use. Accordingly the Complainants got the actual possession of the said shop room, but the Opposite Parties failed to provide any common bath room cum privy to the Complainants till to date. The Complainants repeatedly requested the Opposite Party No. 1 Developer to provide the said bath room cum privy, but the Opposite Party No. 1 was reluctant to bother to do the same, what amounts to negligence and deficiency in service on part of the Opposite Parties and caused mental agony and harassment to the Complainants for which they had asked for compensation and the instant case is filed for seeking adequate redressal before this Forum.
Resisting the Complaint, the Opposite Party no. 1 filed Written Version for denying the contentions and all material allegations made by the complainant in the Petition of Complaint and stating inter alia, that the Complainant has no cause of action to file the instant case and the case is not maintainable.
The specific case as stated by the Opposite Party No. 1 in gist, is that, the Opposite Party No. 1 had admitted the case of the Complainants stated that the Complainants are not the consumers under the Opposite Party No. 1, as the Complainants had purchased the said shop room for commercial purpose and not treated as a consumer under the C. P. Act, 1986.
Moreover, the Opposite Party No. 1 had already made a bath room cum privy for the Complainants at the 3rd floor roof long ago and recently the Opposite Party No. 1 has arranged for colouring the said bath room cum privy. So, no question of deficiency of service does arise at all and the Opposite Party No. 1 has denied any negligence or/ and deficiency in rendering service on his part and the Complainants are not entitled to get any relief as prayed for and the Opposite Party No. 1 prayed for dismissal of this case.
Despite proper service of the notice to the Opposite Party No. 2 & 3, the concern both Opposite Parties never appeared before the Forum to contest the case neither of them had appeared before the Forum nor they filed any ‘Written Version’ on their behalf or through any Ld. Advocate/Representative. Thus the Opposite Party No. 2 & 3 has relinquished his scope to refute the case. So, the instant case has been heard ex-parte against the Opposite Party No. 2 and 3.
Points for Determination
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute between the Complainant and the Opposite Parties is that whether the Opposite Parties are liable to provide any bath room cum privy on the Ground floor for the Complainants or not.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party No. 1 and also critically perused all the material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocates of both the parties, and on critical appreciation of the case record, it is clearly evident that admittedly had purchased a shop room on the Ground floor of a multistoried building by a Sale Deed on 19.10.2012 from the Opposite Party No. 1 for a total consideration amount of Rs. 4,00,000/- only.
It is revealed from the record that the Opposite Party No. 1 alleged that though the Complainants had purchased a shop room for doing the business, the instant case is not tenable before the Consumer Forum as the Complainants purchased the same for commercial purpose for which the Complainants cannot be treated as ‘Consumer’ under the C. P. Act, 1986. But the fact remains that the Complainants (the Husband and wife) had/have done the business by their own without appointing any employee. Moreover, the Complainants have filed the case for claiming the common facilities which was agreed to be provided by the Opposite Party No. 1 as a Developer. So clearly it can be held that the Complainants are the ‘Consumer’ under the ambit of the C. P. Act, 1986.
Manifestly it is evident from the said ‘Sale Deed’ dated 19.10.2012 that the Opposite Parties had agreed to deliver a bath room cum privy to the Complainants as common facilities which the Complainants alleged not to be provided but on the contrary the Opposite Party No. 1 stated that they have already provided the said bath room cum privy to the Complainants on the 3rd floor of the said building. Now the fact remains that if it is possible or natural for the Complainants to use the same where they had purchased the shop room on the Ground floor and in necessity they have to go to the 3rd floor of the building for using the bath room cum privy.
Moreover, the Complainants alleged that no bath room cum privy was actually made at all at the said premises of the building. But neither the Complainant nor the contesting Opposite Party had prayed for any local inspection commission to show that whether the said bath room cum privy was actually made or not.
But the record reveals that both the Complainant and the Opposite Party No. 1 admitted that there is no bath room cum privy on the Ground floor of the building where the shop room of the Complainants is situated.
Thus, in view of the above findings the Forum is inclined to hold that in the present state of affairs the prayer of providing/delivering the bath room cum privy on the Ground floor of the building should provided by the Opposite Party No. 1 in favour of the Complainants and the Opposite Party No. 1 is still liable to deliver the same.
Though the Opposite Parties had already delivered the possession of the said shop room to the Complainants where the Complainants has continued their business without any disturbance and also executed the proper ‘Sale Deed’ without any fault the Forum unanimously decided to award no compensation to the Complainants against the Opposite Parties.
Therefore, in light of the above analysis, we are inclined to hold that the Complainants have successfully proved their case and are entitled to get the relief as prayed for from the Opposite Parties and consequently the points for determination are decided in affirmative.
In short, the Complainants deserve success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Party No. 1 and also allowed ex-parte against the Opposite Party No. 2 & 3 with cost of Rs. 3,000/- only payable by Opposite Party No. 1 within one month from the date of this ‘Order’.
That the Opposite Party no. 1 is directed to construct the said bath room cum privy on the Ground floor of the said building and to hand over the same to the Complainants within a period of one month from the date of this ‘Order’.
In the event of non compliance of any portion of the executable order by any of the Opposite Parties within the above specified period, the said O.P./s shall have to pay a sum of Rs. 200/- only per day from the date of this order till its realization, as punitive damages, which shall be deposited by the O.P./s 50% to the Complainants and rest 50% to the State Consumer Welfare Fund.
Let the copy of the order be supplied to the parties free of cost when applied for.
