State Consumer Disputes Redressal Commission
Sri Ravi Kant Srivastava vs Sri Ashoke Kumar Chakraborty & Another on 5 December, 2013
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal 11-A, MIRZA GHALIB STREET KOLKATA-700 087. S.C. CASE NO. : FA/408/2013 (Arisen out of judgement dt. 25.3.13 of DCDRF, Howrah, in Complaint Case No. HDF 128 of 2012) DATE OF FILING : 17.04.2013 DATE OF FINAL ORDER: 05.12.2013 APPELLANT Sri Ravi Kant Srivastava S/o Late Prem Prakash Srivastava Residing at Andul Road, Aurobindo Sarani, P.O. Podrah, P.S. Sankrail, Dist. Howrah-711 109. RESPONDENTS 1. Sri Ashoke Kumar Chakraborty S/o Late Ponchanan Chakraborty Residing at Siddi Vinayak Apartment 4th Floor, Flat No. 7, Vivekanando Nagar Colony Andul Road, P.O. Podrah, P.S. Sankrail, Howrah-711 109. 2. Sri Benoyendra Nath Ghosh S/o Late Gopinath Ghosh Siddhi Vinayak Apartment 3rd Floor, Vivekanando Nagar Colony, Andul Road, P.O. Podrah, P.S. Sankrail, Howrah-711 109. BEFORE : HONBLE JUSTICE MR. KALIDAS MUKHERJEE, PRESIDENT MEMBER : MRS. MRIDULA ROY FOR THE APPELLANT : Mr. Amit Pachal, Ld. Advocate FOR THE RESPONDENT : In person Res. No. 1 Mr. P.R.Sinha Sarkar, Ld. Advocate (Res. No. 2) : O R D E R :
MRS. MRIDULA ROY, LD. MEMBER The instant Appeal is directed against the judgment and order dt. 25.3.2013 passed by the Ld. DCDRF, Howrah, in Complaint Case No. HDF 128 of 2012 allowing the same on contest with cost against the OP No. 2 and dismissed against the OP No. 1 without cost, directing the OP No. 2 to pay a compensation of Rs. 50,000/- to the complainant for mental pain, agony and prolonged physical harassment within 30 days from the date of order, further directing the OP No. 2 to make necessary arrangement for operating the lift in full satisfactory condition after obtaining the licence and makeover the key and other papers to the association of flat owners within 15 days from the date of the order.
Being aggrieved by this order the OP No. 2, i.e. the Developer, has preferred the instant Appeal.
The case of the complainant (Respondent No. 1 herein), in brief, is that he entered into an agreement for sale dated 26.11.2007 with the OP/Developer, Ravi Kant Srivastava for purchasing a flat. The complainant stated that the OP/Developer verbally assured him of installation of lift in the building. However, he got possession of the flat in March, 2008 and got the flat registered in his and wifes favour on 30.7.2008. The complainant further stated that in the Sale Deed executed in respect of their flat, wherein the OP No. 1, i.e. the Landowner, and the OP No. 2, i.e. the Developer, put their signatures and it has been written in Page No. 14, Sl. No. 11 of the said Sale Deed, lift in the building to be installed. The flatowners held a meeting with the Developer on 6.6.2010 and it was written in the agenda that the lift had not been installed within time and the Developer assured the flatowners in writing of proper functioning of lift within three months from that date. But the same remained due in reality. Thereafter even by intervention of the Asstt. Director, CA & FBP, Howrah, and correspondences from the end of the complainant the Developer did not intimate the date on which he was going to provide the lift service. Hence, the complainant filed the instant case before the Ld. District Forum praying for direction upon the Ops to pay Rs. 2,00,000/- to the complaint towards compensation for causing mental agony and harassment.
The OP No. 1, i.e. the landowner, appeared and contested the case by filing written version denying all the material allegations made against him stating, inter alia, that he had already paid Rs. 1,40,000/- to the OP No. 2, Developer, towards his contractual obligation for making payment to the Developer for obtaining the licence for running the lift.
The OP No. 2, i.e. the Developer, also contested the case by filing written version stating, inter alia, that the case was not maintainable having no cause of action, non-joinder and mis-joinder of parties, lack of jurisdiction of District Forum. The OP/Developers specific defence in a nutshell is that the landowner and he entered into a joint venture development agreement in respect of a property situated at LR Dag No. 410 under LR Khatian No. 3308, J.L.No. 38, Mouza-Podra, P.S. Sankrail, Dist. Howrah-711109 and, accordingly, he constructed a G+4 storied building in the said premises. The complainant purchased a flat being Flat No. 7 and the same was delivered to him on 30.7.2008, vide the Possession Letter. As per terms of the agreement entered into by and between the landowner and the Developer the total cost of construction of the lift-pit, the lift motor room on the roof and the charges for installation of the lift would be equally shared by the landowner and the Developer. The Developer already had constructed a lift-pit and lift motor room and installed the lift though the landowner had not contributed any amount for installation of the lift. A copy of invoice of Rs. 1,95,000/- was sent to the landowner, but he avoided to make payment. It is the further contention of the OP/Developer that he completed the work for the lift and also installed the same and the complainant enjoyed the same without making payment for maintenance charges. Therefore, the lift service could not run. The OP/Developer further stated that the owners of the said building availed of the lift facility, but did not pay the electric charges.
According to the OP/Developer, he has no deficiency in providing service and, therefore, the case should be dismissed with cost.
In course of argument the Ld. Advocate for the Developer has submitted that the agreement for sale was executed with the purchaser for purchasing a flat and the flat was delivered to the purchaser along with his wife and thereafter the deed of conveyance was executed and registered in favour of them on 29.7.2008 wherein the landowner also put his signature.
The Ld. Advocate for the Appellant further submitted that there is a provision in Page-14 of the deed of conveyance for installation of lift. The lift was installed, but became out-of-order. Further, according to the Appellant, the case is barred by limitation since the cause of action arose in 2008. The Ld. Advocate for the Appellant further submitted that there was a separate agreement towards the effect that the landowner would pay 50% and the Developer would pay 50% of the charges involved in installation of the lift.
While advancing his argument the Ld. Advocate for the Respondent No. 1, i.e the purchaser, has submitted that the entire payment was made to the Developer. The Developer received Rs.
2,800/- from the purchaser for running the lift, but all were in vain. The Ld. Advocate for the Respondent No. 1 further submitted that he prayed for enhancement of compensation.
The Respondent No. 2, i.e. the landowner, also submitted that Page-7 of the Sale Deed would reveal that money was paid by the purchaser to the Developer. He further stated that Rs. 1,40,000/- was paid by the landowner to the Developer towards installation of the lift.
Hearing the submission and perusing the record we find that the landowner has also grievances against the OP/Developer.
However, it appears from Page-14 of the deed of conveyance executed on 29.7.2008 that the Developer promised that the lift was to be installed in that building. The promise towards installation has not been transformed into reality. Therefore, the issue cannot be considered as barred by time-limit since the cause of action is continuing one. The Developer has taken the plea of non-receipt of payment from the landowner towards 50% of installation charges as well as from the flatowners towards maintenance charges and, therefore, could not provide the lift service. It appears from the record that the complainant had paid Rs. 2800/- towards lift service charges. Therefore, the plea of non-receipt of maintenance charges from the complainant/Respondent has not been substantiated.
In view of the discussions made hereinabove we are of the opinion that there is no scope to interfere with the impugned order.
The District Forum below was justified enough in passing the impugned order. In the result, the Appeal fails.
Hence, it is ORDERED that the Appeal stands dismissed on contest but without any order as to costs. The impugned judgment stands confirmed.
MEMBER PRESIDENT