Order No. 57 dt. 21/04/2017
The case of the complainants in brief is that on being attracted with an advertisement of o.p. no.1 the complainants entered into an agreement with o.ps. for purchasing of two independent residential units on the ground floor having total built up area of 1495 sq.ft. measuring about 2 cottah 6 chatak. In the agreement it was mentioned that o.p. no.1 had absolute right to sell the residential units and in consideration of the said agreement for sale the complainants paid an amount of Rs.15 lakhs. In the agreement o.p. no.1 mentioned some facilities including common infrastructure facility as well as it was mentioned that o.p. no.1 shall set up a social club for the residents of Sanjiva Town only erecting a building for the club. The complainant found that after the expiry of the period of 3 years 2 months of the said agreement o.p. no.1 delivered the possession of the said bungalow to the complainants by virtue of two possession letters. After taking 4 months of the possession o.p. executed and registered the deed of conveyance in favour of the complainants. The complainants after possession of the said bungalow found that there was some discrepancies between the promise of the o.ps. and in reality. The complainants found several defects discrepancies viz. (1) front elevation tiles structure was not properly done, (2) there were several cracks of severe nature in walls in outer and inner structure of the said bungalow, (3) severe damp problems, (4) mumpty room and roof of the building was unfinished, (5) solid wood floor having gaps, (6) tick veneer in the main door was promised but was not given and other problems were there. On the basis of those problems the complainants made several requests to o.ps. but no effective step was taken by o.ps. The complainants further stated that the project manager after hearing the problems of the complainants visited the site and he estimated the cost of repair of Rs.1,30,000/- and he also promised that the said amount will be provided to the complainants but o.p. no.1 denied to pay any amount to that effect. On the basis of the said fact the complainants stated that o.ps. caused irreparable loss prejudice and/or injury to the complainant whereby the complainants till date could not use the bungalow properly and have suffered financial loss. On the basis of the said fact the complainants prayed for compensation of Rs.10, lakhs and also interest @ 18% per annum from the date of order till the realization of the amount.
The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that at the time of taking possession of the bungalow the complainants did not raise any objection nor did they protest in any manner in any respect whatsoever in such as the said bungalow was in perfect condition at the time of taking possession by the complainants. Whatever negligent and small defects appeared in the building are after lapse of considerable period and may be wrong maintenance during heavy rainy season. It was further stated that one from minute shrinkage crack in plaster was found in the western side of master bed room in junction beam and brick wall and one was found on the western side common boundary wall. The project manger duly informed the complainants for instructing such repair work but the complainants did not permit the o.p. to carry out any repairing work in the said bungalow. The allegation regarding mumpty room has got no basis. Regarding hollow pop sound in the wooden floor, this is natural. As this cannot generate sound like marble or granite flooring. It is universally accepted fact that ‘UPVC’ windows are much superior in terms of aesthetic value, water tightness and sound proof capacity and materials are of highest possible standard and quality. The sewage treatment plant of the complex is already in place and it is situated at the left side of the commercial establishment. The rain water harvesting scheme and waste water recycle process are already in the system. There is a management body for maintain of water filtration who is looking after the problems.
The o.ps. stated that in to order show goodwill gesture Mr. Santanu Chatterjee and Mr. S.G. Mukherjee, Advodate, visited the bungalow in question only to compare the allegations in the complaint and the actual scenario. There was, however, no discussion as to forwarding any estimate which the complainants have done unilaterally and they did not give any assurance by o.ps. to pay a sum of Rs.1,50,000/- for the purpose of repairing of the defects. All the allegations are creation of the complainant’s ill motives to harass the o.ps. to have luxury up gradation at the cost of o.ps. In view of the facts and circumstances as stated above o.ps. prayed for dismissal of the case.
On the basis of the pleadings of parties the following points are to be decided:
- Whether the complainants purchased the bungalow from o.p. no.1.
- Whether there was any defect in the said bungalow.
- Whether the o.ps. failed to provide the amenities as mentioned in the agreement for sale.
- Whether there was any deficiency in service on the part of o.ps.
- Whether the complainants will be entitled to get the relief as prayed for.
Decision with reasons:
All the points are taken up together for the sake of brevity and avoidance of repetition of facts.
Ld. lawyer for the complainants argued that on being attracted with the advertisement issued by o.p. no.1, the complainants purchased one bungalow by paying an amount of Rs.15 lakhs. The complainants after taking possession of the said bungalow found that the amenities which were assured by o.p. no.1 were not provided to the complainant. Ld. lawyer for the complainant argued that immediately after the possession of the bungalow the complainants found various defects in the said bungalow including (1) front elevation tiles structure was not properly done, (2) there were several cracks of severe neture in walls in outer and inner structure of the said bungalow, (3) severe damp problems, (4) mumpty room and roof of the building was unfinished, (5) solid wood floor having gaps, (6) tick veneer in the main door was promised but was not given and other problems were there. The complainants on numerous occasions requested the o.p. no.1 to effect repairing of the bungalow as well as to provide the amenities as assured by him. The o.p. no.1 did not pay any heed to the request of the complainants. Ld. lawyer for the complainant emphasized that after braining it notice to the o.p. no.1 for those defects the o.p. no.1 sent one Mr. Santanu Chatterjee, Project Manager for inspection of the defects. At the time of inspection he took note of the defects and he assured that by spending an amount of Rs.1,50,000/- the defects as alleged by the complainants can be removed. The representative of o.p. no.1 in spite of giving such assurance the complainants were not provided any amount for repairing of those defects, on the contrary o.p. no.1 by sending a letter informed that no such assurance ever gave by the project manager.
Ld. lawyer for the complainants in order to ascertain the defects in the said bungalow filed a petition praying for appointment of an expert to inspect the defects and to submit a report. On the basis of the appointment made by this Forum one Engineer Commissioner was appointed and went to locale and after inspection of the said bungalow he submitted a report wherein he pointed out the defects lying in the said construction of the building and he examined the defects and after examination he submitted a report whereby the engineer commissioner stated that the tiles that had been fitted for the beautification front elevation of the bungalow was unevenly and not in proper manner, gaps were not filled properly resulting water percolation through the external wall causing dampness on inner walls. However, this can be rectified not a major work. The wooden floor had master bed room showed loss of gaps between the wooden planks installed making clear passage to insects and it also generate hollow finished sound and the area may be repaired by fitting the wooden plank properly and filling of the gap. As floor agreement provisions were there for the glazy aluminum windows and sliding doors instead PVC channels and fittings were provided. On inspection it was found that channels for the sliding door are bent and not opening or closing properly, leaving big gaps therein making passages for water to percolate. On the basis of the said inspection the report was submitted by the engineer commissioner and he estimated the cost of Rs.4,50,000/- for repairing the defects found at the time of said inspection. In view of the said fact the complainants prayed for reliefs as sought for.
Ld. lawyer for the o.ps. argued that the complainants on the basis of imaginary repair works claimed the amount from o.p. no.1. The complainants could not produce any documents to show that they made any repairing work in respect of removal of those defects. The complainants also failed to prove to establish that the complainants suffered any damage due to the damps in the said building. The minor defects that was brought to the notice of o.p. no.1 and in order to remove those defects o.p. no.1 sent representative to evaluate those defects and also for the cost involved in the said repairing of the defects but the complainants did not allow the representative of o.p. no.1 to inspect those defects. it was further emphasized by ld. lawyer for the o.ps. that engineer commissioner appointed by this Forum visited the bungalow in question but it is curious enough that the said engineer commissioner did not inform the o.ps. before the date of inspection as well as the time, if that would have been brought to the notice of o.ps., the o.ps. would have remained present at the time of said inspection. But the engineer commissioner had on the dictate of the complainants prepared the report for which o.ps. made a question to the said engineer commissioner whether he is prepared to file note regarding field the inspection of the said bungalow to which he stated that he did not prepare any field note. On the basis of the said fact ld. lawyer for o.ps. argued that if the filled note would have been brought to the notice of this Forum the actual fact could have been ascertained and the representative of o.ps. could have put their signature on the said field note and the submission of the representative of o.ps. could have been recorded in the said field note. The engineer commissioner did not follow the procedure for holding inspection at the time of said alleged commission work and accordingly ld. lawyer for o.ps. emphasized that no importance should be given on the report submitted by the engineer commissioner. Since on the basis of imaginary claim made by the complainants for repairing of the alleged defects and since there was no deficiency in service on the part of o.ps. therefore ld. lawyer for o.ps. prayed for dismissal of the case.
Considering the submissions of the respective parties it is not disputed that the complainants did not enter into an agreement for purchasing a bungalow and as per the terms and conditions of the said bungalow the price of the said bungalow was fixed at Rs.15 lakhs. The complainants paid the said consideration price and took possession of the said bungalow in question on 19.8.08. After taking possession of the said bungalow the complainants noticed that some defects were there and as per the terms and conditions of the agreement the amenities which o.p. no.1 agreed to provide was not provided to the complainant. The complainants thereafter made several requests to o.p. no.1 for removing those defects but o.p. no.1 did not pay any heed. Subsequently, the complainants made complaint before the CA & FBP, Govt. of West Bengal, but no fruitful result was achieved. Thereafter the complainants filed this case praying for relief.
On perusal of the materials on record we find that the complainants in order to prove the said fact filed a petition for appointment of an engineer commissioner to ascertain the defects found in the said bungalow. The o.ps. raised objection regarding the appointment of the said commissioner. After contested herring this Forum allowed the said appointment and one Mr. Manibhusan Chakraborty, an engineer was appointed to hold inspection and to submit a report. On the basis of the said appointment the said commissioner visited the bungalow and inspected the points asked for examination and after inspection of the bungalow the commissioner prepared a report and submitted it on 30.1.12 whereby the engineer commissioner in details assessed the value of the repairing work and after considering the valuation of the removal of the defects the commissioner submitted reported that by removal all those defects Rs.4,50,000/- is required. Ld. lawyer for o.ps. on this point argued that the commissioner did not act independently and he in collusion with the complainants submitted a report and he has not mentioned on what basis he identified such damp and damages and the commissioner submitted financial projection of such imaginary defect almost of the similar loss as indicated by the complainant and as such, ld. lawyer for the o.ps. submitted that the fake report should not be given any importance.
On perusal of the evidence on record as well as materials submitted by both the parties we find that in the agreement for sale entered into in respect of the said bungalow in question o.p. no.1 provided some of the amenities which were common to all the owners of the bungalow in respect of the said project. Other bungalow owners did not come with the plea that they were not provided with the amenities as promised by o.p. no.1. Only complainants came before this Forum with the plea that so many defects they found including the defects in the doors, windows and floors etc. The engineer commissioner examined those alleged defective materials in the year 2012 and the bungalow in question was delivered to the complainants in the year 2008 i.e. 4 years after the said possession taken by the complainants those defects arose. The o.ps. in the w/v stated that due to not maintaining the bungalow in proper manner the said defects arose. Certainly there was some short of taking care in respect of the bungalow in question for which those defects could have occurred which ought to have reflected in the report itself. But the engineer commissioner did not go to those points and he also .ought to have considered that with the passing of several years those defects may crop up because of not maintaining of the building in proper manner. Those aspects were not considered by the engineer commissioner. On the contrary, from the materials on record it appears that ld. commissioner did not prepare any field not to establish the fact that o.ps. were present at the time of said inspection work. Ld. Commissioner during the course of his evidence particularly during the questions put to him regarding the presence of o.ps. to which he stated that o.ps. were present but ld. commissioner failed to produce the field note which could have clarified the matter that the inspection had taken place in presence of o.ps. The inspection report was prepared as per the claim made by the complainants for which the complainants after the submissions of the report amended the complaint and enhanced the compensation from Rs.5 lakhs to Rs.10 lakhs. Since the inspection was held after the lapse of several years from the date of taking possession of the bungalow in question and other bungalow owners adjacent to the complainants’ bungalow did not come before this Forum and also they did not raise their objection regarding non providing of other facilities which were common to all other adjacent owner of the bungalows, therefore we hold that the claim made by the complainants was exorbitant one in order to get back the substantial amount paid by them filed this case praying for enhancement of the compensation as well as cost of repairing of the defects found in the said bungalow. Since the repairing cost has submitted by the commissioner’s report assessed for removal of those defect it will require Rs.4,50,000/- and those defects were found after the lapse of several years from the date of taking possession of the said bungalow and due to not taking of proper measure for maintaining of the bungalow, therefore we should consider that the amount assessed by the engineer commissioner was excessive one and the complainants in order to extract money from o.ps. filed this case praying for compensation of Rs.10 lakhs. Since some defects were found and in order to remove those defects and whenever o.ps. agreed to pay some amount we should fix that the complainants should get the compensation of Rs.2,50,000/- lakh towards the defects found by them in respect of deficiency in service found in the bungalow in question. Thus all the points are disposed of accordingly.
Hence, ordered,
That the CC No.156/2010 is allowed on contest with cost against the all o.ps. The o.ps. are jointly and / or severely are directed to pay a sum of Rs.2,50,000/- (Rupees two lakhs fifty thousand) only to the complainant as compensation for harassment and mental agony and litigation cost of Rs.20,000/- (Rupees twenty thousand) only within 30 days from the date of communication of this order, i.d. an interest @ 10% p.a. shall accrue over the entire sum due to the credit of the complainant till full realization.
Supply certified copy of this order to the parties free of cost.
