State Consumer Disputes Redressal Commission
Basudev Chakraborty And Another vs Smt. Rita Naha And Others on 31 October, 2008
D R A F T State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : 90/O/2002 DATE OF FILING : 7.10.2002 DATE OF FINAL ORDER: 31.10.2008 COMPLAINANTS 1. Sri Basudev Chakraborty S/o Late Hem Chandra Chakrabory 2. Smt. Tandra Chakraborty W/o. Sri Basudev Chakraborty Both residing at B-3, Amrabati, P.O. Sodepore, P.S. Khardah, Dist. North 24 Parganas, West Bengal. RESPONDENTS/O.P.S 1. Smt. Rita Naha W/o. Sri Nirmal Kumar Naha Bose Garden, P.O. Agarpara, P.S. Khardah, Dist. North 24 Parganas. 2. Smt. Mamata Naha W/o. Sri Amal Chandra Naha Bose Garden, P.O. Agarpara, P.S. Khardah, Dist. North 24 Parganas. 3. Smt. Rama Roy W/o. Sri Subrata Roy Sripally, D.P.Nagar, P.O. & P.S. Belgharia Kolkata-700 056. 4. M/s. Progressive Construction Anisha Apartment G.B.Dutta Road Sodepore Dist. North 24 Parganas. BEFORE : HONBLE JUSTICE MR. A.CHAKRABARTI, PRESIDENT MEMBER : MR. S.N.BASU MEMBER : MRS. S.MAJUMDER FOR THE PETITIONER / APPELLANT : Mr. G.Chakraborty, Advocate FOR THE RESPONDENT / O.P.S.: Mr. R.K.Chaumal, Advocate : O R D E R :
MR. S.N.BASU This is a complaint filed by Mr. Basudev Chakraborty and another having their residence at B-3, Amrabati, P.O. Sodepore, P.S.Khardah, Dist. North 24 Parganas against Smt. Rita Naha residing at Bose Garden, P.S. Agarpara, P.S. Khardah, Dist. North 24 Parganas and three others alleging deficiency of service in respect of providing various facilities to the complex purchased by them for running a training centre.
2. The facts of the case briefly are that the Ops constructed a multi-storied building being named Anisha Apartment at G.B.Dutta Road, Sodepore, which contains a shopping complex consisting of small rooms meant for selling to individual shop-owners. The complainants had purchased five shops, viz. shop numbers 9,10,11,12 and 13 at the ground floor of the said Anisha Apartment through three different purchase deeds. The shops were all contiguous. The complainant converted them into one big room having 1166 sft. area in total.
They entered into an agreement with one Zee Interactive Learning Systems Ltd. for imparting computer training to the trainees as per their approved module. All the said three purchase deeds were registered during the year 2001, namely Deed of Conveyance dt. 13.8.01 for G-13 shop, dt. 3.9.01 for G-11 and G-12 shops and dt. 10.12.01 for G-9 and G-10 shops. The complainant alleged that before entering into the agreement with Zee Interactive Learning Systems Ltd., they had discussed with the Ops that with a view to running the training centre they would need (i) separate toilet, (ii) separate 440 V Electric meter, (iii) water connection and (iv) Dish Antenna at the roof of the building. The complainant also alleged that in spite of such verbal discussions the Ops failed to provide those facilities, as a result of which they were subjected to extreme inconvenience and had to run the training centre without such essential services. Due to non-supply of electricity they had installed a generator to provide power supply.
The problem regarding separate toilet and water supply continued. Due to such incomplete infrastructure they were not able to run the training centre in its full capacity. They failed to run the training centre strictly as per requirements and specifications of the said Zee Interactive Learning Systems Ltd. They also contended that they had not received the Completion Certificate of the building from the Panihati Municipality to enable them to obtain mutation in respect of the said training complex purchased by them. The complainant took a loan of Rs. 12.75 lacs from Bank of Baroda for the purpose of acquisition of several materials like computer softwares, air-condition machines, interior decoration and also to pay part of the Franchisee Fees to Zee Interactive. They contended that since the Ops did not carry out the alteration and modification works to convert the five shops into a training complex, they had carried out some changes to existing structure of the five shops to make them suitable for the training complex. Till the date of filing the complaint the complainant had spent a sum of Rs. 27.00 lacs for the training centre which includes the purchase price of the five individual shops also. On 20.1.02 the complainants had requested the Ops to obtain re-sanction of the original sanction plan being numbered 790 dt. 6.1.2000 consequent upon carrying out necessary modifications to convert the shopping complex into a training centre. The complainant contended that due to non-cooperation on the part of the Ops and failure to provide necessary infrastructure to the training complex they had suffered a total loss of Rs. 7,40,000/- as on 30.9.02. The training complex was purchased without having necessary infrastructure and in spite of an undertaking given by the Ops they failed to provide those infrastructure causing great hardship and loss of revenue on account of lesser utilization. The complainants also alleged that there were several defects in the construction.
They have, therefore, come up with the prayer that the Ops be directed -
i) to complete the facilities as mentioned above
ii) to remove the defects in the construction
iii) to submit a revised plan in respect of the complex to Panihati Municipality and obtain the sanctioned plan incorporating modifications in respect of the shop room numbers 9, 10, 11, 12 and 13
iv) to direct each of the Ops to pay compensation of Rs. 7,44,000/- to the complainants.
The complainants relied on the decisions in (i) III (2003) CPJ 9 (SC), (ii) 1998 8 SCC 387, (iii) 1991 2 Comp LJ 460 (NCDRC), (iv) AIR 1921 Calcutta 315, (v) Appeal No. 54/92 of Honble National Commission, (vi) II 2003 CPJ 398, (vii) II (1991) CPJ, (viii) Complaint No. 639 of 1991 of Honble National Commission, (ix) 1st Appeal No. 233 of 1991 with Courts Appeal No. 246 of 1991, (x) I (1991) CPJ 40, (xi) III (2002) CPJ 107 (NC), (xii) 1998 8 SCC 387, (xiii) 1999 5 SCC and (xiv) III (2002) CPJ 8 (SC) in support of their contention, but none of these decisions help the complainants in the present case as those documents are in different context.
3. Both sides filed their evidence on affidavit and the questionnaire for cross-examination and also replies to such questionnaires. In addition to written objection the Ops filed their written argument. They contended that initially the Panihati Municipality had sanctioned a plan with small shops.
Subsequently a revised plan was filed containing drawing for bigger shop room and sanction was obtained under number SPL/78 dt. 20.1.03. The five shop rooms purchased by the complainant were also indicated in the revised plan. The Ops denied that they had ever agreed to sell a complex as mentioned by the complainants in the ground floor of the building and that they would obtain a revised plan from the municipality as amended plan. They also denied that they had been apprised of the arrangement made with Zee Interactive Learning Systems Ltd. for conducting a training centre at that premises.
No such agreement had ever been entered with the complainants as alleged. They also denied that there was any commitment on their part for providing toilet, separate water arrangement and the electric line with 440V.
They strongly denied that the construction was defective and they had agreed to remove the defects by undertaking further works. They also denied that they had ever made any commitment to obtain Completion Certificate of the building from the municipality to enable the complainants to obtain mutation in respect of the alleged complex purchased from the Ops.
They stated that the complainants were at liberty to apply to the State Electricity Board for obtaining individual meter with required capacity. It was also clearly mentioned in the Deed of Sale that they would obtain separate electric meter and connection for the shop rooms. Regarding construction of building they contended that M/s. Green & Co., Chartered Accountants, had submitted a valuation report with regard to the five shops purchased by the complainants wherein it had been reported that the building had been constructed with good quality materials and, therefore, contention of the complainants is baseless and motivated.
After taking possession of five shops the complainants unauthorisedly removed the shutters of the shop room nos. 9, 10, 11 and 12 and blocked the entrance of each of the shop rooms from southern side. They further contended that the complainant had already removed the partition walls of each of the shops contrary to the conditions stipulated in the Deed of Conveyance against which the Ops had already moved the Barasat Civil Court.
They had also constructed the toilet unauthorisedly and connected the same with the sewerage line without the knowledge and consent of the Ops and, therefore, the Ops are not under obligation to supply water in the said toilet which was constructed illegally. The Ops are also not under any obligation to supply water to any of the shop rooms as per terms and conditions contained the Deed of Conveyance. They further contended that since the complainants purchased only the shops and not any complex as alleged, they are under no obligation to supply the facilities as asked for by the Ops and also to pay them Rs. 7,44,000/- as per their claim towards loss and damage due to under-utilisation of the capacity of the training centre. The Ops relied on the decisions in 2001 (3) CPR 177 (NC) and 2001 (3) CPR 161 (NC) in support of their contention.
4. We have perused the complaint and the written objection filed by the Ops together with the written arguments. We have also perused the evidence filed by the contesting parties together with the questionnaires and replies.
We find that the complainant had purchased five shops in the ground floor of Anisha Apartment. They used the shops as a training complex by undertaking several alterations to the existing shops. The complainants, however, complained that they had not been provided with essential facilities like toilet, separate water supply and separate electric meter with a capacity to run their training complex which required airconditioning. They were also denied the facility of fixing Dish Antenna in the roof of the building.
The construction of the flat was also sub-standard. From a perusal of the three Deeds of Conveyance through which the complainant purchased the five shops and the evidence filed by both sides we find that when the complainants purchased the shops, there was no mention in Deeds of Conveyance that the shops would be transformed into a training complex having air-conditioning arrangement and they would be provided with separate water supply, toilet, high voltage electric meter and also the facility to fix an antenna on the roof of the building. We also do not find any mention in the Deed of Conveyance that the Ops had agreed to send revised plan keeping in conformity with the converted training complex and obtain Completion Certificate for the complainants. We also do not find any agreement between the contesting parties regarding the education centre to be started by the complainants in the shops purchased by them nor the Ops were officially aware of any loan being availed of by the complainants for the purpose of converting the shops into a computer training complex. Even if we presume that there was some dialogue in this regard with the Ops, the same cannot be enforced legally since there is nothing on record.
It is also found from the agreement that it refers to sale of shops only and not any complex. There is also no agreement nor any correspondence with the Ops regarding conversion of the shops into a training centre by way of removing the shutters and breaking of walls existing between the shops. While we appreciate that a training centre without a separate toilet, a 440V electric line, water supply and antenna cannot run properly, there is nothing on record to show that the Ops are under any obligation to provide those facilities to the complainants. We further find that the Ops advanced an amount of Rs. 5,74,426/- to the complainants as loan.
The Ops have contended that since the complainants had undertaken a number of unauthorized works without the knowledge of the Ops, they must refund the loan immediately together with compensation for illegal and unauthorized works undertaken by the complainants.
5. In view of the facts stated in the foregoing paragraphs we are inclined to say that the complainants had failed to adduce any documentary evidence in support of their contention regarding (i) arrangement for separate toilet, (ii) arrangement for supply of water for the complex, (iii) separate electric meter and (iv) Dish antenna in the roof of the building. Though we agree in principle that such facilities should be available to a training complex, we do not find any deficiency on the part of the Ops for not providing them as no such facilities have been promised by the Ops to the complainants at the time of selling the shops. The allegation of the complainants are primarily based on pleading and not supported by any documentary evidence. In the circumstances we are inclined to say that the complainants have failed to prove their allegations of deficiency against the Ops in terms of Section 2(1)(g) of the Consumer Protection Act, 1986. The complaint, therefore, fails and be dismissed on contest without cost.
MEMBER MEMBER PRESIDENT