State Consumer Disputes Redressal Commission
Mrs. Ratna Sanyal vs S.S.K. Dream Projects on 17 March, 2016
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/39/2012 1. Mrs. Ratna Sanyal W/o Sri Dipak Kumar Sanyal, D-26, Sarat Pally, P.O. Midnapore, P.S. Kotwali, Dist.Midnapore(W), at present-Flat no.B,4th Floor, Jagat Janani Aprt., HB Town Rd., No.2, Sodepur, P.O. Sodepur, P.S. Khardah, Dist. North 24 Pgs., Kol-700 110. ...........Complainant(s) Versus 1. S.S.K. Dream Projects Reg. office-Arunachal, P.O. Sodepur, P.S. Khardah, Dist. North 24 Pgs., Kol-700 110, C/o Sri Suman Paul, S/o Sri Sunil Chandra Paul, partner of S.S.K. Dream Projects. 2. Shri Suman Paul S/o Sri Sunil Chandra Paul, Arunachal, P.O. Sodepur, P.S. Khardah, Dist. North 24 Pgs., Kol-700 110, a partner of "S.S.K. Dream Projects". 3. Shri Sunil Chandra Paul S/o Late Umesh Chandra Paul, Arunachal, P.O. Sodepur, P.S. Khardah, Dist. North 24 Pgs., Kol-700 110, a partner of "S.S.K. Dream Projects". 4. Smt. Krishna Paul W/o Sri Sunil Chandra Paul, Arunachal, P.O. Sodepur, P.S. Khardah, Dist. North 24 Pgs., Kol-700 110, a partner of "S.S.K. Dream Projects". 5. Shri Deba Prasad Das S/o Late Manindra Prasad Das, 2/3 H.B. Town Road, No.8, C/o Jagat Janani Apartment, land owner of "Jagat Janani Apartment", H.B. Town Rd. No.2, P.O. Sodepur, P.S. Khardah, Dist. North 24 Pgs., Kol-110 ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Complainant: Mr.Barun Prasad., Advocate For the Opp. Party: Mr. Sajal Kanti Bhattacharya, Advocate ORDER Date of hearing: 04.03.2016 Date of judgment: 17.03.2016 Judgment This petition of Complaint is filed by Mrs. Ratna Sanyal u/s 17 of the Consumer Protection Act, 1986 alleging deficiency against the abovenamed opposite parties in respect of providing housing construction service.
Brief facts of the instant complaint is that the complainant being assured by the opposite parties of transferring a flat including facility of elevator to be constructed by them at H.B. Town, Sodepur, P.S - Khardaha, Dist - North 24 Parganas, Kolkata - 700 110 under name and style 'S.S.K. Dream project' in favour of her she booked a four bedroom flat on the fourth floor of a building under that project paying the booking money on 27.01.2010 and, subsequently, entered into a tripartite agreement for sale on 10.04.2010 with the O.P. Developers i.e. S.S.K. Dream Project and Landowner of H.B. Town Project i.e. the O.P. No. 5 in this case. In April 2011 Complainant and her husband met the O.P. Nos 2 & 3 and requested them to deliver the possession of the said flat after installation of evevator on an early date since the Complainant had been suffering from osteoporosis in both knees. Being requested so the said O.P.s further assured the complainant that they would make the flat ready for possession alongwith installation and functioning of the elevator by 31.07.2011.
However, in july, 2011 the Complainant decided to disposed a composite one bedroom flat to one Sri Purnendu Kumar Bose out of her four bedroom flat against the proportionate cost as consideration and accordingly, a quadripartite agreement had been executed by the Developer Firm, the Landowner, the Complainant and said Mr. Bose. The Complainant paid the entire amount of proportionate consideration amount of Rs 19,38,500/- for her portion of flat to the O.P. Developers by 12.10.2011 and on that date she obtained verbal permission from the opposite party developers to take possession of her 1128 Sq.ft. super built up area flat. The Complainant received possession of the said flat. The Complainant after getting the flat found the same having water soaked damage wall of Master Bedroom, Kitchen, living cum dinning room, with bad smell as well as maggot like worm infested, defective kitchen floor, no provision for ventilator in Master Bedroom, electric fan hooks in living dinning room, tap in one of the toilets, has bold or door shutter in five doors, defective construction in floor of toilets and kitchen, having no provision for transformer to building where the flat has been constructed and so on which caused tremendous sufferings of the Complainant both physical and mental for which she had to undergo medical treatment and inspite of receiving the same she has got permanent injury in her knees, she alongwith her family members had to stay at a lodge, she had to engage labours to take her downstairs etc. The Complainant has been requesting the O.P. Developers to remove the defects in the flat and to install an elevator in the said building as soon as possible were since then but to no effect. Hence, the Complainant files the instant case praying for direction upon the Opposite Party Nos 1 to 4 to pay Rs. 50 lac as compensation for censing her life at danger including cost of the said flat, alternatively to install elevator in the building, pay Rs. 25,000/- for renovation of the defective part of the flat, Pay Rs. 13,000/- towards fixtures in the flat, Rs. 10,000/- for two fan points including installation iron hooks, pay Rs 10,000/- towards cost broken furniture's refund Rs. 70,000/- to the Complainant with interest @ 18% p.a. since the same was realised from her illegally, Rs. 3000/- towards the fees for specialist engineer for inspection of the building, Pay 60,000/- as the charges for staying at a lodge during the spell of time for renovation of the flat, pay Rs. 28,800/- towards wages of labourers, pay Rs. 25,000/- as cost of litigation, pay Rs. 30lac towards compensation to repair and renovate the defective sanitation system in the flat, to furnish completion Certificate and register the Deed of Conveyance in favour of the Complainant in respect of the flat in question.
The Opposite Party Nos 1 to 4 and the Opposite Party No. 5 filed written versions separately.
In their written version the O.P. Nos 1 to 4 have stated that the Complaint is not maintainable being premature and having serious lapses of nonjoinder and misjoinder of parties. It is further contended in the said written version that the Complainant proposed to purchase a specious flat developed by the O.P. Nos 1 to 4 i.e. the Developers and, accordingly, the Developers amulgated two flats in fourth floor of a building named slyted as "Janani Apartment" developed by them within the Premises of HB Town, Road No. 2, P.O - Sodepur, P.S - Khardaha, District - North 24 Parganas, Kolkata - 700 110 and built up a flat having an area of 1600 sq ft approximately. The O.P. Nos. 1 to 4 have further stated that it was the responsibility of the Opposite Parties to construct the said flat in question and also to provide some facilities therein as per terms of the agreement for sale but some of those facilities such as functions of elevator are subject to regulatory approval and for the very reason the Opposite Parties can not be held responsible for not making them functional since proper electrical apparatus are required with approval of WBSEDCL and therefore, unless such approval comes the elevators can not be made functional. It also contented in the w.v. that the Complainant paid an amount of consideration of Rs. 19,38,000/- to the O.P. Developers so far and the Developer handed over the flat to the Complainant and she entered therein to her satisfaction. The O.P. Developers denied all material allegation made out against them save and except those are on record and contented that there is no deficiency on the part of the O.P. Developers and accordingly prayed for dismissal of the Complaint with cost.
The O.P. No. 5 filed w.v. separately but the contention of the said w.v. identical to the w.v. filed by the O.P. Nos 1 to 4.
The Complainant also filed evidence on affidavit.
On prayer made by the Complainant an empanelled Civil Engineer was appointed as Commissioner to inspect the flat in question.The Engineer Commissioner Mr. Asis Kumar Sen submitted his report. Being dissatisfied with the report an application being No. MA/427/2014 was filed praying for rejection of the report filed by Mr. A.K. Sen and after hearing which this Commission passed Order No. 23 dated 23.06.2015 to the effect that since the points raised by the Complainant during course of hearing of the said application are matter of argument, the same to be decided at the time of final hearing of the Complaint. Pursuant to the order being No. 23 dated 23.06.2015 the Misc Application being No. 427.2014 has been taken up for hearing.
When the record is taken up hearing it appears therefrom that the Opposite Parties were last represented on 28.01.2014 and thereafter they have been remaining absent. Therefore, it is decided that the case since long pending will be disposed after hearing the Complainant and considering the available documents on record including the written versions filed by the Opposite parties. Thus the case is considered as contested one.
In course of hearing of the case, Ld. Advocate for the Complainant has submitted that as per terms of the agreement for sale executed by and between the Complainant and the Opposite Parties dt 10.04.2010 the Complainant had paid the entire amout of consideration to the O.P./Developer. As regards elevator, the Ld. Advocate for the Complainant has submitted that the elevator has been installed after filing the Complaint case but the Complainant had to suffer a lot for 1½ year since the said installation took place after 1½ year from the date of taking possession of the flat in question by the Complainant. In respect of Misc Application being No. M.A. 427/2015 Ld. Advocate for the Complainant has submitted that finding has submitted that finding of existence of iron as well as other minerals in weather by the Commissioner Sri A.K. Sen is not acceptable but the other findings are well acceptable. Ld. Advocate for the Complainant prays for direction upon the O.P's to execute and register the Deed of Conveyance in favour of the Complainant to deliver the Completion Certificate to the Complainant and to pay adequate compensation to the Complainant. Having heard submission made by the Ld. Advocate for the Complainant and on perusal of the materials on record it appears that the Complainant entered into an agreement for sale on 10.04.2016 in respect of one self contained flat at 4th floor being flat No. B & D in a multi storied building to be constructed by the O.P. Developers at the premises being No. - 2/3 H.B. Town Road No. 8 P.O Sodepur, P.S - Khardaha, Dist - North 24 Parganas at a consideration of Rs 19,10,000/-. The Complainant alleges that inspite of making payment of entire amount of consideration, even in excess, the O.P. Developer handed over the Possession of the said flat in a hellish condition, without installation of elevator in the said building, delivering the Completion Certificate issued executing the Deed of Conveyance and, therefore prays for certain relief.
Hearing the Ld. Advocate for the Complainant and perusing the documents we reject Misc. Application being No. MA 427 of 2015 and accept the report prepared by the Engineer Commissioner Mr. A.K. Sen.
Now, the points to be determined -
Whether the Complainant is a Consumer under the Opposite Parties?
Whether the Opposite Parties are deficient in providing service?
Whether the Complainant is entitled to get the relief as claimed?
Decision Point No. 1 The Complainant entered into an agreement for sale in respect of availing the service of housing construction for residential purpose which was to be provided by the O.Ps and agreed to pay certain amount towards of consideration for the same and thus became Consumer under the Opposite Parties as per provision of Section 2 (1) (d) of the C.P. Act.
Point No. 1 is answered accordingly in favour of the Complainant.
Point No. 2The Complainant herps on the point that possession of the flat has been delivered much later than the agreed point of time. On perusal of the agreement for sale it appears that under Article IX (iii) of the agreement for sale it was agreed by the parties that possession of the unit will be made over full payment of the consideration money. The Complainant has stated that she got possession of the said flat in October 2011. It appears from the money receipt No. 784 that an amount of Rs. 88,000/- has been paid by the cheque on 12/10/2011. Therefore, the possession should have been delivered immediately after making payment of Consideration amount.
The Commissioner has found several deficiencies which are noted below :-
Severe seepage water on all partition walls Toilet & Kitchen from Floor to 4' - 6' height causing plastered surface peeling out;
Dampness in external wall of kitchen is above lintel level;
Reverse slope in kitchen at utensil washing outlet;
At one corner of ceiling of kitchen is severely damped;
In some rooms wooden vertical door frames are wet at the junction of floors & frames;
Some floor/ wall tiles are damaged;
In one toilet water tap at 2'- 6' height has not been provided;
Inadequate provision of Fan hooks & tube - light points in drawing room;
Non provision of any ventilators/ skylight in any room causing suffocation;
No wood primer have been painted in flush doors.
Through the Commission mentioned that existence of huge quantity of iron and other minerals resulted in water leakage in Pipe lines which ultimately caused damage of wall. The findings show that the construction including the provision fixtures has been founddefective which clearly indicate deficiency on the part of the O.P. Developers. Further, it is mandatory on the part of the O.Ps to execute and register the Deed of Conveyance in favour of the Complainant. Facts remain that the O.Ps, did not take any step to that effect although the Complainant paid full amount of consideration, even in excesss, within 2011. This is also another example of deficiency in providing service on the part of the O.P's.
Point No. 2 is also answered accordingly in favour Complainants.Point No. 3
The Complainant shall get the flat registered in her favour as per terms of the agreement for sale dated 10.4.2010. The Complainant has prayed for monetay relief showing break up for different heads. In our considered opinion an amount of Rs. 2,00,000/- will meet the ends of justice to compensate her in consolidated manner. Further, the O.P's compelled the Complainant to file the instant case for redressal of her grievances against the O.P's for the deficient service provided by them. Therefore the O.P's are liable to pay Rs. 15,000/- towards cost of litigation.
Point No. 3 is also disposed of accordingly.
In the result, the Complainant succeeds.
Hence, Ordered that the Complainant case being No. CC/39/2012 is allowed in part on contest with cost.
The Opposite Parties are directed to execute and register the Deed of Conveyance in respect of the flat situated on fourth floor of the building at Premises situated in. H.B. Town, Sodepur, P.S - Khardaha, Dist - North 24 Parganas, Kolkata - 700 110 under name and style S.S.K. Dream project within 60days from the date of communication of this order and also to pay Rs. 2,00,000/- towards compensation and Rs 15,000/- towards cost litigation to the Complainant within the aforesaid period failing which interest @ 10% P.a. will be payable for the default period. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER