Judgment : Dt.15.9.2017
Shri S. K. Verma, President.
This is a complaint made by one Jadab Chandra Banerjee, son of Late Haripada Banerjee of 113, Bansdroni Place, P.S.-Regent Park, Kolkata-700 070 against Sri Utpal Saha, son of Late N.C.Saha, 138, Bansdroni New Govt. Colony, P.S.-Regent Park, Kolkata-700 070, OP No.1 and Sri Jitu Saha, son of Late S. Saha, 10, Sreekanan, Bansdroni Place, P.S.-Regent Park, Kolkata-700 070, praying for a direction upon the O.P. to replace the floor marble wall glazed tiles of the kitchen flat mentioned in the schedule and also a direction upon the OP to replace the broken main gate with supporting pillar and overhead tank by good quality of ISI brand along with another direction for handing over the completion certificate and other original documents and further direction to pay or refund dRs.2,90,000/- and Rs.90,000/- which OPs re liable to pay.
Facts in brief are that one Prafulla Moyee Debi was the owner of land measuring 4 cottahs situated at Mouza – Bansdroni, J.L.No.45, R.S. No.381, Touzi Nos.63 and 64, Dag Nos.185 and 188. After the death of Prafulla Moyee Debi on 10.6.1993, her two sons namely Madhab Banerjee and Jadab Banerjee inherited the property. Thereafter Madhab Banerjee died and his share was inherited by his widow Aparna Banerjee and only daughter Jaya Biswas. On 17.6.2011, Complainant and other co-sharers entered into a development agreement with the OPs. As per that agreement, Complainant was entitled to get 500 sq.ft. flat and the heirs of Late Madhab Banerjee, namely Aparna Banerjee and Jaya Biswas were jointly to get 500 sq.ft. on the ground floor. Thereafter on 1.11.2011 a new agreement was entered into and it was agreed that the Complainant would get enlarged flat measuring about 600 sqw.ft. in the first floor instead of his ground floor flat and Complainant will have to pay to the OP, developer, the cost price amounting to Rs.2,00,000/-. On 21.11.2011 the OPs took the original deed from the Complainant in their custody with undertaking to return the same. Thereafter, on 10.5.2012 Complainant entered into an agreement for purchase another 85 sq.ft. area along with his 600 sq.ft. of the first floor flat an accordingly, the price for the enhanced area of his flat was settled at Rs.1,70,000/-, Complainant paid Rs.90,000/-. In the year 2014, Complainant found that OPs at their will and choice and beyond the development agreement started construction of the 2nd floor. At the intervention of the Complainant, OPs expressed that they would manage the same from KMC Building Dept. by submitting revised building plan. Complainant then proposed the OP to modify and to enhance the flat area of the owners’ allocation. As a result, the Complainant’s flat area was enhanced and he was allotted the enlarged first floor measuring 835 sq.ft. without any sale and other owners without taking enhanced area of flat will take value, in terms of money at that point of time. It was also agreed between the Complainant and the OPs that the extra money amounting to Rs.90,000/- which OPs had taken would be refunded by them to the Complainant. Accordingly, on 27.6.2014 a Memo of Understanding was entered into and the OPs promised to allot 250 sq.ft. extra area in the flat of the Complainant, on the basis of revised plan and would refund the money which the Complainant had already paid. It was further agreed that OPs would pay to the Complainant the sum of Rs.30,000/- as compensation in the said Memo of Understanding. OP promised to complete the building within one month and had paid the compensation of Rs.30,000/-. The OPs, thereafter constructed the building causing delay and delivered the Complainant the first floor. The OPs had procured purchaser of their flats and have not refunded the said balance of Rs.2,00,000/- and Rs.90,000/-. In spite of several requests from the side of Complainant. In the circumstances, the Complainant is entitled to get back the said sum of Rs.2,00,000/- and Rs.90,000/- with interest from the OPs.
Complainant on getting possession of the flat in the new building on 28.6.2014 noticed that most of the works of the flat were very poor and incomplete in nature, like marble used by the OPs are of different colours and most of them are cracked and not of the same standard and the glazed tiles fixed in the kitchen are not properly thick and other materials used are also of inferior quality. So, OPs are liable to the deficiency in service which compelled the Complainant to file this complaint.
OP No.1 filed written version and denied the allegations of the complaint. Further OP No.1 has stated that Rising Associate did not undertake to provide specific quality of marble, glazed tiles in the development agreement. It provided best quality of marbles, glazed tiles which was available at the material point of time and if any damage is caused to those marbles those will be due to the negligent and rough use by the Complainant. Complainant manufactured those complaints and falsely filed this case. Further, OP No.1 has stated that Complainant suppressed material facts and as per memo of understanding which was executed on 27.6.2014 in between the Complainant along with other co-owners, Complainant gave full consent to the OPs to make the construction. It was agreed that the owners of the premises shall not act in any manner adverse to the rights and interest of the developer, performed to the memo of understanding declared that the terms and conditions was to be bound on the parties. So, this OP has prayed for dismissal of this case.
OP No.2 did not contest the case and the case is heard ex-parte against it.
Decision with reasons
Complainant filed affidavit-in-which. OP No.1 filed questionnaire against it. Complainant filed affidavit-in-reply. OP No.1 filed affidavit-in-chief to which Complainant filed questionnaire and OP filed affidavit-in-reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that Complainant has prayed for a direction upon OP to replace the floor marble as well as glazed tiles of the kitchen of the flat. On perusal of the complaint, it appears that Complainant took the possession of the flat in the new building on 28.6.2014. Thereafter, he lived there in the flat and suddenly on 28.11.2016 i.e. after a lapse of about 2 and ½ yrs he found that the glazed tiles and marbles used by OP No.1 i.e. developer are of damaged and broken which cannot be believed and the allegation of OP No.1 that it might have been due to rough use of the floor tiles of the Complainant. Accordingly, this prayer cannot be allowed.
At the 2nd phase the Complainant has prayed for a direction upon the OP to replace the broken main gate with supporting pillars and the overhead tank by good quality of ISI brand in the building. This appears as seems to be a prayer which Complainant cannot claim after a lapse of 2 and ½ years, it is because Complainant enjoyed the facility since 28.6.2014. But after 2 and ½ years he found the main gate broken.
Complainant has prayed for a direction upon the OP to handover the completion certificate along with original documents.
In this regard, it is submitted that the original documents which Complainant has sought for are not specifically mentioned. So far as completion certificate is concerned, it should have been taken by the Complainant immediately after he took possession of the flat and this prayer after a lapse of 2 and ½ years cannot be entertained.
Finally, Complainant has prayed for refund of Rs.2,90,000/- and Rs.90,000/- from the OPs.
In this regard, Ld. Advocate for Complainant submitted that Rs.90,000/- is erroneously mentioned and Complainant intended to get refund of Rs.2,90,000/- (Two lakh ninety thousand) only which he paid to the OP. So, this prayer appears to be justified.
Accordingly, we are of the view that Complainant is entitled to refund of Rs.2,90,000/-.
Hence,
ordered
CC/560/2016 is allowed on contest against OP No.1 and ex-parte against OP No.2. OPs are directed to pay Rs.2,90,000/- to the Complainant within three months of this order. In default, the amount shall carry interest @ 10% p.a. from the date of this order till realisation.
