DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO. 28/2015
Date of Filing: Date of Admission Date of Disposal:
19.01.2015 27.01.2015 14 .09.2015
Complainant = Vs. = O.Ps.
Sri Dipak Kumar Paul 1. Sumangal Developers
S/o, Late Kali Pada Paul a partnership firm having its office
residing at Flat No-1F, at 120, Bangur Avenue, Block-C,
1st Floor, Block-I, Kolkata-700055.
Saheb Bari Apartment being represented by its two
No-1, Dakshin Para Road, partners:-
P.S.-Dum Dum, a) Smt. Kanta Goenka
Dist-North 24 Parganas W/o. Late Vijay Kumar Goenka
Kolkata-700028. S/o. Late Hukum Chand Goenka
Residing at 120, Block-C,
Bangur Avenue, Kolkata-700055.
b) Binod Kumar Agarwal
S/o. Late Kaluram Agarwal
Residing at 39, Sambunath Pandit
Street, Kolkata-700025.
….….….….Developers/Promoter
2. Smt. Rekha Ghosh
W/o. Arun Kumar Ghosh
3. Smt. Ramola Majumder
D/o. Lt. Sailendra Nath Majumder
4. Sri Kalyan Majumder
5. Sri Saruindra Nath Majumder
6. Sri Subir Majumder
All are, except Sl.2&3
S/o. Lt. Sailendra Nath Majumder
And all are residing at No-1,
Dakshin Para Road,
Kolkata-700028.
….….….…....Owners/Proforma OP
Advocate Name for the complainant:- Rahul Sarkar
Advocate Name for the OPs:- X
P R E S E N T :- Smt. Bandana Roy ….….….President
:- Sri Rabideb Mukhopadhyay….…...Member
J U D G E M E N T
Fact of the case, in short, as detailed by complainant Vikash Dalmiya, is that the OP is a partnership firm with two partners named above for the purpose of building constructions etc, and they are, thus, the builders, developers and contractors and promoters and they have constructed the residential multistoried building upon the lands as described in the scheduled-A which belongs to the owners namely OP Nos. 2 to 6, in the absolute right, title and interest. It may be stated and mentioned in this connection that the OP No-1(a) entered into a development agreement with the Proforma OPs 2 to 6 on 15th March, 2001.
At para-2, the complainant stated that the OPs-2 to 6 are the joint owners/vendors of the plot of land measuring 22 cottahs little more or less where the (G+4) multistoried building (Block-I and Block-II) consisting of several residential flats and also the garages and car parking space and also commercial shops have been constructed in the name of “SAHEB BARI” Apartments by SUMANGAL DEVELOPERS associated with the OP No-1, by virtue of a registered power of attorney duly executed on 19.12.2000 before the Additional Registrar of Assurances recorded in book No-IV, Volume No-63, Pages-54 to 63, Being No-3664 for the 2000 and thereby enumerated the significance of transfer of the rights and liberties to work smoothly without any encumbrances. By getting that power the OP Nos. 1(a) and 1(b) have fraudulently started cheating and harassing with the complainant along with the other flat owners/purchasers of the said apartment, as alleged by the complainant.
Complainant also stated at para-3 of complaint that like other complainants who came in search of and for purchasing flats, the complainant also agreed to purchase their own residential accommodation flat which is fully described in the Second schedule for a total consideration of Rs 9,25,980/- and entered into an agreement for sale on 17.03.2006, when the complainant paid Rs 9,25,598/- in advance and rest of the total sum of the consideration money paid i.e. Rs 382 /- thereafter on the execution of the Deed of Conveyance by and between the parties, namely the complainant on the one hand as the purchaser and the OP No-1, and the owners of the land, namely, the OP No-2 to 6 executed and registered the proper sale deed dated 23/11/2006, photocopy of which has been annexed.
Para-4 states the claim of the complainant that he is a consumer and the OP-1 is the Service provider in terms of provisions of the Consumer Protection Act, 1986.
Written and Typed by Me Contd. …. 3/-
C. C. Case No.-28/2015
- :: 3:: -
At para-5, the complainant also stated that in terms of the West Bengal Municipal Act, and the rules framed there under, the OP No-1 is bound to obtain occupancy certificate and the completion certificate as well, and although repeated request of the complainant the OP No-1 has deliberately failed and neglected to obtain that from the Concerned Municipal Authority, and also failed to supply such documents to the Consumer-complainant. They made the Consumer-Complainant to believe false and fabricated promises.
Complainant further stated that the humble consumer-complainant could not make the application for “mutation” of their names for the said residential flat to the appropriate authority of the Dum Dum Municipality which demanded and wanted those certificates like occupancy certificate and the completion certificate and without which they refused to allow mutation as stated at para-6 of the complaint.
As at Para-7, the complainant stated that the humble consumer-complainant along with other flat-owners of the complex approached the local Councilor of the South Dum Dum Municipality sometime on or about 19.02.2012 but, unfortunately, no step has been taken in any manner whatsoever in the matter of the grievance.
At para-8, the complainant stated he approached the Consumer Affairs Department for redressal of his case through Mediation but that also failed due to non-cooperation of the OP-1 who refused all allegations of the complainant.
As stated at para-9, the complainant stated that with shock and surprise the consumer-complainant and other flat owners of the SAHEB BARI Apartment came to learn that they would be required to pay a further sum of Rs 75, 000/- for recording and mutating their names in the relevant register of the municipality as there has been deficiency in completing and/or erecting the said building construction as per sanctioned municipal plan.
At para-10, the complainant further stated that the OP No-1, the developer/promoter/contractor has caused the deficiency in service and is guilty of negligence for such deviation in the matter of the construction of the building with the departure from the sanctioned plan and furthered its failure to provide with the Occupancy Certificate and Completion Certificate to the complainant.
Complainant also stated at para-11 that the complainant suffered great mental agony and harassment as a result of the negligence and deficiency in
Written and Typed by Me Contd. …. 4/-
C. C. Case No.-28/2015
- :: 4:: -
service, the Consumer-Complainant is entitled to be compensated and, thus, claim the compensation amount of Rs 1, 00, 000/- is prayed from the OPs. Hence the complaint.
WRITTEN VERSION BY OPs
OPs did not file any WV controverting the points raised by the complainant in spite of being given ample chance. Proforma OPs did not even receive summons.In this angle, the points posed by the complainant in his favour of him may be considered as accepted as the OPs did not take the chance to substantiate their counter points. It appears surprising that the same OP in the same complaint attended office of the Joint Secretary, Consumer Affairs Department, Government of West Bengal, Kreta Suraksha Bhawan, 11A, Mirza Ghalib Street, Kolkata-87 and filed Written Objections to all the allegations filed by the complainant.
EVIDENCE-IN-CHIEF FILED BY THE COMPLAINANT
The E/Chief was filed on 25/8/2015 by the complainant to corroborate his points of complaint under Affidavit. At para-3 of E/Chief, the complainant affirmed that the complainant along with other flat owners of Block I and Block II of Saheb Bari apartment stated their grievances to OP-1 several times for providing the completion certificate of respective flat owners in respect of purchase of their flats, but the OP did not pay any heed to their appeal.
At para-6 of E/Chief, the complainant stated that one of the flat-owners of the Saheb Bari Apartment filed an Application u/s 6 of R.T.I. Act, 2005 to the PIO & Executive Officer of South Dum Dum Municipality, seeking information about not getting the completion certificate in respect of their purchased flats and he came to know that as the OPs 1(a) and 1(b) made deviation of 7156 sq. ft. of the said construction, they were fined an amount of Rs 905700/- with credit order passed on 07/9/2012 and unless the amount is paid, it would be impossible to issue final completion certificate. A copy of information vide letter no. SDM/1091/XXIV dated 20/3/2015 has been attached.
Point for Decision:-
Whether the complainant is entitled to get any relief as prayed for?
Decision With Reasons
We have perused the complaint, documents and evidence in chief field by the complainant. As OPs did not turn up to contest the case. The case of the complainant is established uncontroverted. Moreover, the Developer failed to
Written and Typed by Me Contd. …. 5/-
C. C. Case No.-28/2015
- :: 5:: -
comply with duties to enable the purchaser to assert his rights as specified at clause 9, page 12 of the Registered DEED OF CONVEYANCE Dated 23/11/2006.
Para-9 of complaint states additional amount of Rs 75000/- asked to have been paid by complainant as demanded by OP-1 but such demand is illegal as the penalty (Rs 905700/-) imposed by the Municipality was due to illegal deviation of 7156 sq. ft. in respect of the Sanctioned Plan, as could be known from information sought from the Municipality by another purchaser under R.T.I. Act, 2005
The complaint is well within jurisdiction and cause of action is also continuous through interactions, and other steps taken by the complainant for obtaining the completion certificate, which the OP was duty-bound to hand over.
Accordingly the complainant is entitled to get relief as prayed for.
In the circumstances, we are constrained to pass
ORDER
1) That the complaint be and the same is partly allowed exparte against the O.Ps.
2) OP Nos.-1, a) and b) are directed to make necessary rectification of the construction of the building with reference to the sanctioned building plan at its own cost within three months from the date of this order.
3) OP Nos.-1, a) and b) are further directed to get Completion Certificate from the concerned Municipality and to hand over copy of the same to the complainant within three months from the date of this order.
4) OP Nos.-1, a) and b) are further directed to pay compensation of Rs. 25,000/-(Twenty Five Thousand) and litigation cost of Rs 10,000/-(Ten Thousand) to the complainant within three months from the date of this order, failing which OP Nos.-1, a) and b) shall have to pay sum of Rs 100/-(One Hundred) per day from the date of this order till its realization, as punitive damages, which shall be deposited by the OP Nos.-1, a) and b) with the State Consumer Welfare Fund.
Let copies of the order be supplied to the parties free of cost when applied for.
Member President
Written and Typed By Me
Member
