DIST. CONSUMER  DISPUTES  REDRESAL  COMMISSION

NORTH 24 Pgs., BARASAT.

C. C.  CASE  NO. 582/2017

Date of Filing:                    Date of Admission                     Date of Disposal:

  21.11.2017                                  30.11.2017                                  25.03.2022   

P R E S E N T         :-           Shri Debasis Mukhopadhyay…………President.

                                       :-      Smt. Monisha Shaw …………………. Member.

JUDGMENT / FINAL ORDER

This is a complaint U/s 12 of the Consumer Protection Act, 1986. The Complainants had a development agreement with Sushil Kumar Shaw and others on 02/01/2012. The agreement was subsequently cancelled mutually as the O.P. Desh Sehgal entered into the agreement as new developer by replacing earlier developers on settling all monetary claims and handed over two incomplete flats No. A and B vide agreement dated 31/12/2013. The O.P. had undertaken to complete the construction work of the two flats within 10-15 days from the date of agreement and for issuance of a possession letter to that effect. It was also agreed that O.P. will complete the entire construction of 08 flats including two flats for landlord with facilities like stair, common passage etc. and the land lord will be executing a general Power of Attorney in favour of O.P. so that he may sell the rest 06 flats. The O.P. failed and neglected to complete the pending construction work of the flats of land lords and O.P. stopped payment of house rent of land lords and unpaid amount became Rs. 34,500/- . Then, Complainants were compelled to reside at incomplete flats as advised by O.P. The petitioner and his wife being land lords issued general Power of Attorney in favour of O.P. dated 31/12/2013 and the same was revoked on 25/04/2014. The petitioner became frustrated for unnecessary delay in construction work and issued a legal notice dated 11/01/2015.

Considering the failure and neglect to complete the construction work further agreement was made on 20/05/2015 to complete the pending works and O.P. unanimously agreed to avoid dispute and differences and a general Power of Attorney was issued in favour of O.P. on 21/05/2015. The petitioner issued S/C notice to O.P. on 31/10/2015 to comply the terms and conditions and agreement dated 20/05/2015 and also issued another S/C letter dated 02/11/2015 demanding reply as to why the Power of Attorney should not be revoked. The Complainant issued legal notice dated 05/09/2016 to the O.P. claiming the expense which the Complainant borne to make his flats habitable. Further legal notice was also issued on 07/03/2017 to O.P.  for deficiency of service mentioned as follows:-

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1. Expenditure of 1’ covering of veranda by Grill and Aluminium sliding door/window is amounting to Rs. 12,000/-.
2. It has been agreed that cutting of iron rod from the eastern side wall will be made at the time of painting of buildings/flats within one year from the date of agreement and the same should not be connected with 2^nd floor to other building but the same has not been made till date and violated the same even after receiving earlier Legal Notice and comes under deficiency of services.
3. It has been agreed by O.P that Lift side open space will be covered and the expanses for lift of 1^st party will be borne by the 2^nd party/Developer but no action has been taken, consequently dishonoured the same even after receiving the earlier Legal Notice and comes under deficiency of service.
4. It was agreed by O.P that reconstruction of broken wall will be made and covered up by 2^nd party /developer at his expenditure with a small gate for emergency purpose. But the job has been done partially by O.P and consequently dishonored this clause which comes under deficiency of services.
5. It has been agreed by O.P that as Municipal water supply has already been restored, the said facilities will be provided by the 2^nd party to the 1^st party like other flat owners and a water supply tank /Reservoir will be installed in the vacant space of flat by the 2^nd party for 1^st party at the cost of 2^nd party and appreciated that problem of water supply has been fizzle out.
6. It has been agreed by O.P that in flat ‘A’ of Land owner, rectification of water mark and/or damage of wall for any leakage of water pipe line in the Bed rooms, bathrooms, toilets etc will be rectified within seven days from the date of the agreement but for willful violation of such schedule jobs, 1^st party compelled to make his flats habitable & borne the expenditure of Rs. 50,000/- only which is required to be paid by O.P within one month from the date of receipt of notice but in vain, consequently ignored cl.6 of the Agreement comes under deficiency of services.
7. It has been agreed by O.P that faulty/poor electric connection in the flats of 1^st party will be rectified by the 2^nd party within seven days from the date of agreement but nothing has been done and the same comes under deficiency of services.
8. It has been agreed and settled that possession letter for two flats of 1^st party and Building completion certificate from Municipality and Municipal Tax Receipt of land will be provided by the 2^nd party/OP as early as possible from the date of Agreement but even after elapsed of one year and despite receiving earlier Legal Notice, O.P/Developer has not provided the same and the same comes under deficiency of services.

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1. It has been agreed by O.P/Developer that the expenditure of two windows of 1^st party amounting to Rs. 16,000/- as paid by the 1^st party will be reimbursed by the 2^nd party but in vain in spite of receiving the earlier Legal Notice.
10. That A.C connection matter has been sorted out amicably. After issuing this notice dtd 7.3.2017, Complainant No. 1 issued blank cheque for Rs. 15,000/- vide cheque No. 865780 having A/c No. 07611000001413 of Punjab & Sind Bank, 135, B. T. Road, Kolkata – 700108 and petitioner no. 2 issued blank cheque for Rs. 15,000/- vide cheque No. 865840 having A/c No. 07611000002121 of Punjab & Sind Bank, 135, B. T. Road, Kolkata – 700108 to O.P separately duly signed by them for installation of Lift but nothing has been done although the said cheques have been en-cashed by the O.P in the name of Electro Power on 2
11. It has agreed between the parties that in regard to construction of 4^th floor i.e. after G + 3, the proportionate allocation share ration in between land owners / 1^st part construction will be borne by the Developer / 2^nd party and it must be completed within one year after getting the permission from the concerned authority and the Landowner will pay 20% of construction cost to the developer and deserve the right of Flat A on the 4^th Floor on road side facing as because he is sacrificing himself from 40% to 30% of land owner allocation. But even after elapsed of two year no action has been taken and / or extended any efforts/willingness from Developer’s part, hence deficiency of services came into existence.
12. It has been agreed that fresh power of Attorney will be given by the 1^st party /Land Owners to the 2^nd party within seven days from the date of Agreement for sale of flats as a settlement has reached and if the second party fails or neglect to comply the above mentioned terms and conditions of this Agreement, the Landlords/1^st party shall have the authority to cancel the aforesaid power of Attorney again at any point of time. It is evident from O.P’s/Developer’s part that Developer has not complied series of items which comes under deficiency of services.
13. It has been agreed that the Developer will borne the expanses for Flat A, Flat B but no such implementation has been made till date so, deficiency of services on the part of Developer/2^nd part established. As agreement dtd 31.12.2013 is still in force and not cancelled and even rejuvenated by further mutual Agreement dated 20.05.2015 after revoking Power of Attorney on 25.04.2014 and issuance of further Power of Attorney on 21.05.2015; deficiency of services are required to overcome for ends of justice.

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The Complainant stated that the O.P. was reluctant to settle the dispute and hence the Complainant filed this case praying for reliefs under the heads as follows:-

The O.P. appeared to contest the case by filing W/V denying all the allegations of the Complainant. The O.P. contended that the case was filed on false and frivolous grounds just to harass the Opposite Parties. The O.P. categorically denied each and every claim of the Complainant and stated that due to illegal and negligent act of the Complainants he could not execute and register the relevant deed of sale in favour of the other intending purchasers of their respective flats and the answering O.P. is yet to receive cumulative amount of Rs. 56 lakhs tentatively from the intending purchasers. The O.P. also stated that the Complainants have not paid the maintenance charge for 42 months in respect of their two flats and huge amount was due in this respect, from the Complainants and due to non payment of flat maintenance charges the Complainants are guilty in aggravated way for negligent deficiency on the part of the Complainant. Hence, the O.Ps prayed for dismissal of the case with exemplary cost.

Considering the pleadings of the parties it is found that the points for consideration in this case are whether the case is maintainable or not and whether the Complainant is entitled to get relief as prayed for or any relief at all.

Decisions with Reasons:-

The Ld. Advocate for the Complainant by notes of argument submitted that the Complainant has proved his case and is entitled to get the relief as prayed for and his detail argument was mentioned in his notes of argument. None appeared for O.P. side to argue the case.

We have considered the complaint, W/V, evidence by both sides, documents filed and the arguments. The Complainant has prayed for damages on account of the items mentioned in the petition of complaint. The Complainant claimed Rs. 12,000/- for Varanda Grill, Rs. 50,000/-  for water mark rectification, Rs. 1,600/- for expenditure of windows. The O.P. in his W/V contended that when he had sent his labours to fit the same, the Complainant was demanding to cover the Varanda also and the Complainant may have fitted the same at their own whims and produced documents of high rate. The Complainant mentioned about the bills of the said repair works and therefore we find that this 3 items Rs. 12,000/-, Rs. 50,000/- and Rs. 1,600/- should be awarded to the Complainant as the O.P.

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failed to do the same and the Complainant has spent the amount. Regarding advance for lift installation, the O.P. stated that it was agreed that each of the flat owners will pay Rs. 1 lakh for the provision of lift but now the work is not feasible and therefore we find that the Complainant should get back his advance amount of Rs. 30,000/- for the lift installation since the lift could not be installed. Regarding delay in construction work and claim on this account we find that O.P. has admitted the delay but contended that the Complainants were responsible for the delay and for the latches of the Complainants the O.P. has suffered huge loss. Since we find that the delay is admitted, the Complainant is entitled to get a reasonable amount of Rs. 20,000/- on account of delay and final amount could not be assessed because the work is not yet completed as admitted by the O.P who alleged that the Complainants forcibly occupied the flats before completion. Regarding compensation and mental agony, damarage claim, we find that the Complainants should be awarded reasonable amount of Rs. 5,000/- as compensation and mental agony and also litigation cost of Rs. 5,000/-.

Threfore, we find that the Complainant is entitled to get a total sum of Rs. 1,23,600/- as aforesaid from the O.Ps and the case is therefore decided in favour of the Complainant in part.

In the result, the case succeeds in part.

Hence,

It is Ordered:-

            The case is allowed in part against the O.P. on contest.

The O.P is directed to pay Rs. 1,23,600/- along with 6% interest there on from the date of filing of this case till payment within 02 months from this date failing which the Complainant is at liberty to execute the decree according to law.

That the instant case being no. 582/2017 be and the same is allowed in part.

 Let plain copy of this order be given to the parties free of cost.

Dictated & Corrected by me                      

Member

Member                                                                                                         President