Dt. of filing - 09/08/2017
Dt. of Judgement – 15/11/2018
Mrs. Sashi Kala Basu, President
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 by the Complainant namely Swapan Kumar Kar against the Opposite Parties namely Mohan Kumar Roy and Mukesh Roy two partners of M/s. M. M. Construction alleging deficiency in services on their part.
The case of the Complainant in short is that by a registered deed of agreement dated 20/3/2013 Complainant engaged the OPs being the developer for construction of the G+3 storied building after demolishing of the old structure standing in the premises no.642, Lake Gardens under the Police Station Lake, Kolkata-700045. Consequent to the said agreement, the building was raised and OP handed over the possession of the first floor as agreed to the Complainant on 6/12/2015. But some damage was noticed such as floor of the small privy was not working properly and the boundary wall of the building was not plastered by removing the old and damped plaster. OPs also did not hand over the documents i.e. the completion certificate issued by the KMC, original building plan sanctioned by the KMC and the original mutation certificate issued by the KMC. OPs also are trying to induct the outsiders in the caretaker’s room. A complaint was lodged by the Complainant at the local police station. As per the sanctioned plan there is a caretaker room on the ground floor but the OPs have illegally withheld the said caretaker room in their custody and now trying to dispose of the caretaker’s room to the third party in violation of the agreement. A legal notice was sent by the Complainant through his Ld. Advocate on 6/6/2017 asking the OPs to handover all the above mentioned documents and to handover possession of caretaker’s room but it was all in vain. So the present complaint has been filed by the Complainant praying for an order directing the OPs to complete the unfinished work and to pay compensation of Rs.3,00,000/- and litigation cost of Rs.1,00,000/- . It is further prayed for directing the OPs to handover all the documents as well as the possession of the caretaker’s room in the ground floor of the premises and further to pay damage charges in respect of caretaker’s room @ Rs.1,000/- per diem along with interest for illegal withholding the custody of caretaker’s room.
On perusal of the record it appears that the notice has been sent to the OPs. OP No.1 has contested the case by filing written version but as no step was taken by the OP No.2 inspite of the service of notice, vide order dated 4/12/2017, case was fixed for ex-parte hearing against OP No.2.
It is contended by the OP No.1 that all the relevant documents has already been handed over to the wife of the Complainant who use to look after the development work and was in touch with the developer. Thus document was handed over on good faith without acknowledgement. It is also contended that as per oral consent of the Complainant, the OP intended to construct a flat in the ground floor covering the caretaker’s room as the developer did not get marketable price in respect of allocation in their favour.
The Complainant has annexed with the complaint, copy of the development agreement entered into between him and the OPs, Copy of the notice sent by the Complainant through his Ld. Advocate to the OPs and copy of the complaint lodged before the local police station.
In course of the evidence Complainant and the OP No.1 filed their respective evidence in chief followed by the cross examination by way of filing questionnaire and the reply thereto.
So the following points require determination:-
- Whether there has been any deficiency in service on the part of the OPs?
- Whether the Complainant is entitled to the relief as prayed for?
Decision with reasons
Point No.1 & 2
Both the points are taken up together for discussion for the sake of convenience and in order to avoid repetition.
It is apparent from the development agreement filed in this case that the parties in this complaint case entered into an agreement to raise G+3 storied building as described in the agreement for sale. It is admitted in the written version also by the OP about the execution of the development agreement between them and the Complainant. The only dispute which has been raised in this complaint case is that the document i.e. the completion certificate, the original building plan sanctioned by the Kolkata Municipal Corporation and the original mutation certificate has not been handed over to the Complainant It is also in dispute that the caretaker’s room as shown in the building sanctioned plan has not been handed over to the Complainant. The Complainant has also claimed that the boundary wall was not plastered properly by removing the old and damped plaster and the floor of the small privy in the flat of the Complainant was not working properly.
Existence of the caretaker’s room in the building plan is not disputed by the OPs. However it has been contended by the OPs that the portion in their allocation did not get the marketable value and had to bear the loss. So the Complainant had given them consent verbally to raise a flat in the ground floor covering the said caretaker’s room. But it is apparent from their own statement in the written version that there has not been any document to this effect that the Complainant gave consent to construct flat in the ground floor as alleged. Complainant has denied giving any such consent. Opposite Parties have also not filed any document to show that they did not get marketable price of the flat and so faced loss. So in the absence of any document, OP’s claim that they were given verbal consent by the Complainant to construct the flat in the said ground floor covering the caretaker’s room cannot be accepted specially when in the sanction plan of the building, it is shown as caretaker’s room. Since the caretaker’s room has not been handed over to the Complainant being the owner, there has been deficiency in service on the part of the OPs and thus the Complainant is entitled to possession of said caretaker’s room. Similarly it is apparent in the written version that the three documents i.e. completion certificate, original building plan and the original mutation certificate has not been handed over to the Complainant after completion of the building and at the time of handing over of the flat to the Complainant. It is contended by the OP that the wife of the Complainant was looking after construction work and so those documents has been handed over to the wife of the Complainant. According to OPs as there is matrimonial dispute between the Complainant and his wife, Complainant is now claiming those documents falsely from OPs. But in this context, it may be pointed out that admittedly there is no document forthcoming before this Forum that those documents were actually handed over to the wife of the Complainant. Only on the basis of bare assertion that those documents were handed over to the wife of the Complainant, same cannot be accepted. The best person to say was the wife of the Complainant. If there is matrimonial dispute as alleged by the OP between Complainant and his wife, OPs could have obtained some document by the wife of the Complainant that she was handed over those documents But no such document has been filed by the OP. Neither any evidence of the wife has been adduced. So in the absence of any documents, Complainant is also entitled to an order directing the OPs to handover those documents to the Complainant. However so far as the claim of the Complainant that the boundary wall of the building in question was not plastered removing old and damped plaster and the floor of the small privy was not working, there is no document before this Forum in order to substantiate the same. The Complainant did not take any step for appointment of Engineer Commission in order to inspect the said defects as alleged. So in view of the discussion as highlighted above the Complainant is entitled to the relief as prayed regarding handing over of caretaker’s room and the three documents. However, we do not intend to award any compensation on consideration of the facts and circumstances of this case especially when caretaker’s room falls within the common facilities. But as the Complainant has been compelled to file this case he is entitled to litigation cost. These points are thus answered accordingly.
Hence,
ORDERED
CC/470/2017is allowed on contest against OP No.1 and ex-parte against OP No.2. OPs are hereby directed to handover the original documents namely completion certificate, original building plan and the original mutation certificate issued by the Kolkata Municipal Corporation and further directed to hand over possession of the caretaker’s room situated on the ground floor in favour of the Complainant within three months from this date. OPs are further directed to pay litigation cost of Rs.25,000/- to the Complainant within the aforesaid period failing which the same shall carry interest @ 7% p.a. till its realization.
