IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.

CONSUMER CASE NO. : 140/S/2013.             DATE OF FILING : 09.10.2013.   

BEFORE  PRESIDENT              : SRI SUBHABRATA CHAUDHURI,

                                                              President, D.C.D.R.F., Siliguri.

                      MEMBER                : SMT. PRATITI BHATTACHARYYA

COMPLAINANTS           : SRI SOUMEN BHATTACHARJEE,

  S/O. Late Paritosh Bhattacharjee and

  SMT. RUNU CHAKRABORTY (Bhattacharjee),

  W/O. Sri Soumen Bhattacharjee, both Hindu by  

  religion and faith, Indians by nationality and resident  

  of Flat Q, 4^th Floor, Tower B, AMIT TOWERS,

  Chiriamore, Kadamtala, Dist.- Darjeeling,

  Pin – 734 011, West Bengal.

O.P.                                           : TERAI INFRASTRUCTURES LIMITED,

   Corporate Office : Agarwala House, Sevoke Road,

   Second Milestone, Siliguri – 734 001,

   District – Darjeeling, West Bengal. 

FOR THE COMPLAINANTS       : Sri S. K. Mitruka, Advocate.

   F I N A L  O R D E R/J U D G E M E N T

DATE :02.08.2018.

The complainant’s case in brief, is that he has been permanently residing at the Residential Unit of the Residential Complex named ‘Amit Towers’ at its 4^th Floor, after purchase of the same from OP on 19.11.2010 by a registered deed of sale along with the covered parking space as per agreement and map to that effect.

The OP (Developer) is a Limited Company and was entrusted with constructing a residential complex by Sri Ajit Kumar Agarwala (VENDOR), S/O. Lt. Maidhan Das Agarwala, being recorded owner of the land measuring 0.83 Acres at the site of Amit Towers Residential Complex, Chiriamore, Kadamtala and residing at Agarwala House, Sevoke Road, Siliguri.  The agreement of sale was entered on 08.04.2009 and the Developer had executed the Deed of Sale in favour of the complainants on 19.11.2010, being document number I-8436 of 2010.  The complainants fully believing in the offered facilities, including Grilled Windows,

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Installation of Power Generators, Health Club and Gymnasium, Telephone Security Facilities etc. which were the spelt out in the printed Brochure and henceforth in the Agreement of Sale registered the Deed of Purchase after full payment and undergoing all obligatory remittances and finally took the possession of the Residential Unit from 01.01.2011.  However, the aforesaid unit did not have grills in three numbers of windows and that the complainants had to install those grills at their own expense in the Master Bed Room and the Kitchen for their own safety.  Further it is contended in the complaint that the residential complex does not have Generator facilities, Health Club and Gymnasium, Telephone Security Facilities and therefore the complainants did not enjoy all these promised facilities from the day of occupancy till date.  Moreover, the complainants started facing problems of Wall soaking (Northern side of the Residential Unit) and water leakages through the sides of the Window Frames from the Monsoon period of 2011 in spite of several reports and complaints to the representatives of the Developer, who were in Charge of collecting monthly maintenance charges and daily upkeep of the premises.  The complainants were promised speedy repair from outside to rectify the water leakages.  The Developer sent a mason during March, 2012 to look into the matter but unfortunately the work was not started.  The complainant offered to undertake the pending repair works on their own and adjust the bills with the maintenance charges and even that offer was not also accepted by the Developer.  Complainants were unheeded and neglected, hence this case.  Residential flat of the complainants was examined by one of the engineer on complainants’ effort for assessment of the repairing cost/repairing charges and said engineer assessed the same at a sum of  Rs. 54,085=88 in addition to Rs.10,000/- at least, which would have required/expensed for removal of the old damaged plaster from the residential flat, totalling a sum of Rs.64,085/-.  So, it has been further contended in the complaint that OP company is liable to repair the said residential flat at its own costs and to pay a sum of Rs.64,085/- to the complainants towards the said repairing and also to entire satisfaction of the complainants and/or alternatively to pay a sum of Rs.64,085/- to the complainants towards the said repairing as well as the OP company is also liable to make the payment of a sum of Rs.20,000/- as incurred by the complainants towards the said three nos. of grills in as much as the OP company had received the full consideration amount of the said residential flat and wilfully avoided to provide the said window grills.  Thus is the case of the complainants that the OP company has been found deficient and

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negligent even without having any fault from the part of the complainants and thus OP company remained involved in unfair trade practice in selling the said residential flat.  As a result of which the complainants have suffered the monetary losses and damages in addition to their sufferance from mental pain and agony.  The cause of action as it has been contended in the complaint firstly arose on 08.04.2009 when the complainants agreed to purchase the residential flat from the OP company and thereafter on all such dates, when the complainants made the payment towards the consideration money of the said residential flat and thereafter on all such dates, when the complainants made correspondences with the OP company in respect of the said deficiency in services and negligence and the cause of action has been still continuing.  It is further stated in the petition of complaint that this Forum has had the jurisdiction to entertain and try this complaint as the cause of action arose fully within the territorial jurisdiction of this Forum and moreover the residential flat in question is also situated within the area and jurisdiction of this Forum.  Lastly, complainant has prayed for in this case a direction upon the OP/Developer either to repair the aforesaid wall of the unit i.e., Flat Q, 4^th Floor, Tower B, Amit Towers, Chiriamore, Kadamtala, Dist.- Darjeeling or to compensate the price of repairs to the tune of Rs.64,085/- as well as direction upon the OP to compensate to the tune of Rs.20,000/- for installation of three (3) window grills.  In addition to that a sum of Rs.50,000/- has been further prayed for deficiency in service to that effect on account of loss & damages suffered by complainants and another Rs.25,000/- to the complainants towards sufferings on account of mental pain & agony.  The mention of interest, pendent-lite interest with litigation cost is also in the complaint.

As against this complaint which has so been amended later on, the OP Terai Infrastructure & Ltd. filed written versions first on 13.12.2013 and subsequently on 15.07.2014 while complainant was amended where almost all allegations averred in complaint denied stating inter-alia that sum of Rs.64,085/- as claimed on account of repairing cost is manmade and manufacture for achieving illegal gains which OP is liable to realise from the complainants. 

It is noted in the first written version of OP that admittedly a representative of OP was sent namely Mr. Sandeep in the month of March, 2012 one of good gesture and to rectify the inner wall of the flat in question as outer walls was common expenses of the OP was not liable for the same, to prevent leakage bur surprisingly the said representative was not permitted to carry out the work

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whereas such similar work was satisfactorily done in another flat accompanied by Mr. Khurshid Alam, 2^nd Floor, Flat No. ‘Q’ of said Amit Towers without any hindrance.  

Hence, OP has claimed therein for rejection of complainants’ prayer by contending in the complaint that this case is liable to be dismissed. 

In this case, Examination-in-Chief of Sri Soumen Bhattacharjee was filed on 07.08.2014 along with an affidavit and in support of the case some documents are also filed from complainants’ side including some letters and correspondences as made with the OP Company which are of dated 22.05.2012, 28.02.2013, 18.03.2013, 02.05.2013 along with Courier Service DTDC consignment details and postal receipts which were sent to OP Company by complainants while no reply of any of such letters has not been furnished from OP side.  Some photographs showing the damaged condition of the flat in question are also filed from complainants’ side.  Money receipts for showing in expenditure of three (3) window grills is also submitted and the document showing costs required for removed of such defects of flat as prepared by Shri Kamal Kanta Roy, Consultant Civil Engineer inform of his such repairmen report as estimate is also submitted.  Copy of Brochure containing site plan of Apartment, Agreement for sale and that of deed of sale are deposited in this case by the complainants.  It is found that as agreement the evidence of complainants on affidavit questionnaires filed by the OP and PW1, Soumen Bhattacharjee replied the said questionnaires as raised by OP.  As regards repairing Estimate OP side raised questionnaire of those questions were replied by Kamal Kanta Roy, Consultant Engineer from the side of complainants and thereafter both sides filed written notes of arguments and finally that argument from both sides heard by this Forum. 

On the basis of all complaints and the written version of the parties of this case, the following issues are framed for consideration and determination of this same. 

1.       Is the case maintainable in its present form and nature?

2.       Is the case maintainable on the point of jurisdiction or is barred by limitation as per provision of the C. P. Act, 1986. 

3.       Has there any deficiency in service against the complainants from the part of the OP?

4.       Has there any unfair trade practice committed by OP upon the complainants? 

5.       Are the complainants entitled to get the relief/reliefs as prayed for?

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Issue Nos.1 & 2

During argument ld advocate for the complainants submitted that finding no any alternative while even after oral requests and letters to OP, no fruitful result at all had come, then this case was initiated by the complainants and in order to clarify the point of jurisdiction as well as limitation ld advocate drew the attention of the Forum to the letters sent from the part of complainants to the OP Company which were sent to OP company and received accordingly by OP but not replied by OP save and except letter of dated 28.02.2013 and ld advocate further reiterated about this matter of continuous cause of action of this case and in this context referred one judgement passed by Hon’ble Union Territory Consumer Disputes Redressal Commission, Chandigarh which is of dated 16.08.2004 reported in 2004 (3) CPJ 608. 

Here in this case also while we are thinking about the point of limitation whether it has crossed two (2) years time of limitation from the date of cause of action arose in view of Section 24 A of the Consumer Protection Act, 1986, then at the same time we are not unmindful of the fact that the complainants had been pursuing the matter vigorously and sent letters one after another to the OP company in the form of reminders over the matter up to 02.05.2013 starting it from 22.05.2012 but in lieu complainants did not receive any response from the OP Company and these letters dated 22.05.2012, 28.02.2013, 18.03.2013 and 02.05.2013 are produced before this Forum from the side of the complainants along with postal receipts and track consignment paper to that effect only to show and establish that complainants really endeavoured their best for removal of defects of their purchased dwelling flat in question in this case by the active interference of the OP company from whom they had a purchased that flat. 

The OP company against most of the letters mentioned above did not reply to the complainants but it appears that against a letter dated 28.02.2013 received on 05.03.2013 by the OP company one reply letter of OP company which is of dated 11.03.2013 came to the complainants on the subject of repairing of outer wall outside windows and this letter dated 11.03.2013 has also been produced before this Forum from the side of the complainants.  From the series of letters as issued by the complainants it is evident that the complainants strived their best for removal of the defects of flat in question by the interference of OP company.  The last latter from the complainants’ side was sent by post to the OP company which is of dated 02.05.2013 and it is clear that within six months of that letter complainants filed this case on 09.10.2013.  In the letter of the complainants

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dated 28.02.2013 complainants requested as usual for removal of defects in flat by the OP to which OP by sending its reply dated 11.03.2013 admitted that complainants letter dated 28.02.2013 was received from their end on 05.03.2013 and it is admitted further that for repairing as asked in the letter one person was sent to complainants’ flat but complainants did not allow that person to do the repair work while the same repairing work was done in another flat which is in the name of Md. Khurshed Alam at Second Floor of that same apartment.  So, from this reply letter of OP company it is abundantly clear that even in the month of March, 2013 the cause of action of this case was continuing which lasted till 22.05.2013, the date on which complainants prior to institution of this case had sent that letter with the same request and grievance to the OP for doing repair work at their flat.  It is required to bear in mind that cause of action is a bundle of facts, the fact that has given raise to action against other party is called the ‘cause of action’.  Some causes of action arise only once whereas, some are recurring causes of action and some are continuous causes of action and here in this case, no doubt it is identified as continuous cause of action. 

Under this circumstance, we are inclined to hold that this case is not barred by limitation as per Section 24A of the C.P. Act, 1986.  The complainants have filed this case well within the period of two years from the date of cause of action as lastly arose.  The territorial jurisdiction of this case has been there as it appears from the documents on record.  The complainants are no doubt ‘consumer’ as per Section 2(1)(d) of the C. P. Act, 1986.  So, this case has been rightly filed with right territorial and pecuniary jurisdiction having right cause of action and thus the case is in proper form and nature.  These two issues are thus disposed of in favour of the complainants.

Issues Nos. 3, 4 & 5

These three issues are taken up together for consideration to avoid repetition and moreover those are interlinked with one another for coming to a decision. 

Ld advocates of both sides, complainants on one hand and OP company on the other hand have argued basically on the written notes on argument as filed by them respectively.  Complainants have filed some documents which include the following documents :-

1.       Copy of brochure circulated/issued by the OP company.

2.       Xerox copy of Agreement (Original lying with the banker against loan).

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3.       Xerox copy of Sale Deed (Original lying with the banker against loan).

4.       Original photographs of the damaged wall etc., of the residential flat.

5.       Original letters and Correspondences as made with the OP company.

6.       Original Bill showing the payment towards installation of grills.

7.       Xerox copy of Engineer’s Report towards repairing cost.

The flat in question alleging deficiency in service therein against the OP company is subject matter in this case was booked for purchase by the complainants by virtue of one Agreement of Sale dated 08.04.2009 and that was sold and purchased accordingly on 19.11.2010 by a Registered Deed of Sale while complainants were the vendees and the OP company was vendor.  Possession of that flat was admittedly was handed over by the OP company to the complainants thereafter on 01.01.2011.  We have perused the brochure and the brochure is in the name of Terai Group (OP company) and in that brochure the facilities which are mentioned in the complaint are there.  Agreement of Sale and the Deed of Sale over the flat in question both are registered at ADSR, Siliguri situated at Bagdogra.  Original bill for wooden window grills three in numbers has been therein a receipt with other prices-fittings for the flat mentioned in the complaint.  Some photographs are also submitted by the complainants showing the damaged condition of the flat in question.  Letters dated 22.05.2012, 28.02.2013, 18.03.2013, 02.05.2013 are also filed with respective postal receipts in original along with one receipt of DTDC Courier and Cargo Ltd. and the repairing estimate of the flat amounting Rs.54,085.88/- prepared by Kamal Kanta Roy, Consultant Civil Engineer which of dated 30.12.2013 is also with the case record. 

It is pertinent to note here that the OP company has not submitted any evidence along with affidavit during the course of trial but questionnaire was submitted on which Kamal Kanta Roy the said engineer replied to the points as per report prepared by him.  Complainant Soumen Bhattacharyya submitted his evidence along with an affidavit and that PW1 Soumen Bhattacharyya also replied in respect of the questionnaire raised by the OP here in this case.  In the written notes of argument the question of maintainability of this case has been raised by the OP company and it has been submitted therein that the instant case is barred under Section 12A of the West Bengal Building (Regulation of Promotion of Construction & Transfer by Promoters) Act, 1993 and to that effect one case of the Hon’ble High Court, Calcutta has been referred as reported in 2015 (I) CLJ (Cal) Page 249. 

The facts and circumstances of this case while considered it appears to us

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that this is a case for which the principle of the referred case is not applicable as because this instant case is out and out a case which comes within the ambit of Consumer Protection Act, 1986 and the complainants are the ‘consumers’ as per definition of Section 2(1)(d) of the Act. 

After purchase of the said flat while the complainants started to reside there they faced many difficulties as regards construction of the said flat the interior and outer walls started to be damaged and this picture of damage is palpably visible from the photographs as submitted before this Forum.  It is admitted by the OP company by their letter dated 11.03.2013 that they sent one person for repair work in the flat of the complainants but complainants did not allow him to that repair work which contention has been opposed by the complainants through the letter dated 18.03.2013 to the OP company.  In the written notes on argument OP company on one hand has said that there are total ninety (90) flats are there in the apartment which were sold out to different persons, but no one is there coming from those purchasers to depose before this Forum to substantiate the claim of the complainants, so it is the duty of the complainants to prove their allegation in respect of damaged walls as alleged in the complaint and at this juncture if we go through that contention of letter dated 11.03.2013 that from OP company side it is seen contended therein that one Mr. Sandeep representative of Dr. Fixit was appointed for repairing purpose to visit the flat of the complainants but complainants did not allow to start the repairing works then it brings a contradictory picture of the version of the OP company and in addition to that it is further written there in that letter that OP company completed at that occasion the repairing works in the apartment occupied by one Md. Khurshed Alam, Second Floor, Flat No. ‘Q’.  So, the factum of necessity of repairing work is admitted by the OP company which needs no extra proof from the side of the complainants but even in spite of that it has been proved by the complainants by the evidences as adduced and produced from their side.  Accordingly, we are of the considered view that the complainants have been able to prove their case as alleged in the complaint and there remains no doubt about it that being consumers after purchase of flat with consideration amount properly and on assurances of different facilities within the apartment premises, the complainants made victimised of deficiency in service from the part of the OP which resulted this Forum to decide the above three issues in favour of the complainants and the question of adoption of unfair trade practice upon the complainants by the OP side is thus proved beyond doubt and in consequence of

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that it is determined that the complainants are entitled to get the relief as prayed for here in this case. 

Proper fees paid.

Hence, it is 

                   O R D E R E D

that the instant Consumer Case No.140/S/2013 be and the same is allowed on contest in part against the OP company with cost.

The complainants are entitled to get the price/cost of repair of the wall of the unit i.e., Flat ‘Q’, 4^th Floor, Tower ‘B’, Amit Towers, Chiriamore, Kadamtala, Dist.- Darjeeling amounting Rs.64,085/- (Sixty Four Thousand Eighty Five rupees only) from Terai Infrastructure Ltd., the OP company of this case as well as the said OP company is also directed to compensate the complainants a further sum of Rs.20,000/- (Twenty Thousand rupees only) as against installation of three numbers of grill in the windows of bed room and kitchen together with that another sum of Rs.20,000/-(Twenty Thousand rupees only) as against losses and damages suffered by the complainants totalling Rs.1,04,085/- (One Lakh Four Thousand Eighty Five rupees only) and the OP company is directed to pay that amount within 45 days of this date of order failing which the complainants are entitled to get 9% interest per annum thereon till the date of full realization of the same. 

OP company is further directed to pay a sum of Rs.10,000/- (Ten Thousand rupees only) towards cost of litigation to the complainants.

The complainants will be at liberty to put the decree/order in execution if the same is not complied with by the OP within above mentioned stipulated time.

Let a copy of this order be handed over to each of the parties free of cost at once.