State Consumer Disputes Redressal Commission
Partha Pratim Bhattacharya vs Bipul Sarkar on 24 January, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/385/2015 (Arisen out of Order Dated 25/02/2015 in Case No. CC/473/2014 of District South 24 Parganas) 1. Partha Pratim Bhattacharya S/o Late Srigobinda Bhattacharya, Subarna Enclave, 7/6, Netaji Nagar, Flat no.B-2, 2nd floor, Kolkata -700 092. ...........Appellant(s) Versus 1. Bipul Sarkar 2, Congress Pally, Kolkata-700 070 & also at Matadi Tower, 7, H.L. Sarkar Road, Bansdroni, Kolkata -700 070. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER HON'BLE MRS. MRIDULA ROY MEMBER For the Appellant: Ms. Shreya Ghosh , Advocate For the Respondent: Mr. Soumen Mondal, Advocate Dated : 24 Jan 2017 Final Order / Judgement Date of Filing - 26.03.2015 Date of Hearing - 16.01.2017 PER HON'BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER
The instant appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the behest of the Complainant to impeach the Judgement/Final Order dated 25.02.2015 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (for short, Ld. District Forum) in Consumer Complaint no. 473/2014 whereby the consumer complaint initiated by the Appellant Sri Partha Pratim Bhattacharya under Section 12 of the Act was dismissed on contest without any order as to costs.
The Appellant herein being Complainant lodged the complaint asserting that on 19.05.2012 he has entered into an agreement with the OP/Respondent to purchase of a self-contained flat measuring about 802 sq. ft. being Flat No.B-2 on the 2nd floor at Premises No.17/6, Netaji Nagar Colony, P.S.-Jadavpur, Dist- South 24 Parganas at a consideration of Rs.19,25,000/-. The Complainant has paid the entire consideration amount and as such on 02.11.2012 a Sale Deed was executed by the OP in favour of the Complainant and the flat in question was also delivered to him. The Complainant alleged that after acquiring possession, he found several deficiencies in respect of providing the facilities as per Agreement like - (a) Generator-best quality, (b) Points of telephone, (c) Anchor switch and (d) Flash Doors. Despite several verbal and written requests, the OP/developer did not take any steps. Thereafter, the Complainant approached the Office of Consumer Affairs & Fair Business Practices, South 24 Parganas but his grievances remain unattended. Therefore, the Appellant approached the Ld. District Forum with prayer for several reliefs amounting to Rs.2,74,216/- for removal of the defects or to overcome the deficiencies.
The Respondent being OP by filing a written version has stated that the Agreement for Sale dated 19.05.2012 contained a clause of escalation of price of flat, which the Complainant agreed to pay and that apart the said Agreement, was also contained deviation clause. The Complainant thereafter, was asked to pay the escalated price, which he was unable to pay and requested to adjust the said escalation from the cost of generator and other fitting and fixtures.
Relying upon the materials on record including the evidence on affidavit led by the parties, the Ld. District Forum by the impugned Judgement/Final Order dismissed the complaint, which prompted the Complainant to prefer this appeal.
Ld. Advocate appearing for the Appellant has submitted that the Ld. District Forum ought to have directed the Respondent to provide the materials as agreed in the Agreement for Sale dated 19.05.2015 like, telephone, installation of flash door, anchor switch and best quality of generator. Ld. Advocate for the Appellant has also submitted that the Ld. District Forum has totally failed to appreciate that the Respondent was deficient in rendering service as they could not provide materials as per Agreement for Sale.
Ld. Advocate for the Respondent, on the other hand, has contended that on 02.12.2012 the Appellant took delivery of possession and on the same date the Sale Deed was executed and registered. Now, after a long delay of about two years, precisely on 19.09.2014 the Appellant filed the complaint just to lower down the social prestige of the Respondent. Ld. Advocate for the Respondent has also submitted that the Agreement for Sale between the parties dated 19.05.2012 has been concluded by virtue of Sale Deed dated 02.11.2012 and as such the Ld. District Forum rightly dismissed the complaint.
We have considered the rival contention of the parties. The fact remains that on 19.05.2012 the parties have entered into an Agreement for Sale by which the Appellant agreed to purchase the subject flat at a total consideration of Rs.19,25,000/-. It is also not in dispute that on 02.11.2012 the Respondent executed Sale Deed in favour of the Appellant after accepting the entire consideration amount. On 25.02.2013 the developer issued possession certificate and the Appellant accept the same after giving a note 'received peaceful possession of the above mentioned flat with full satisfaction on the work of construction'.
Regarding the alleged deficiency, the Appellant had an opportunity to appoint a technical person to ascertain whether the developer constructed the flat in accordance with the sanctioned plan obtained from the local authority. The Appellant did not make any attempt to substantiate his allegation of deficiency in services rather in the possession certificate, he himself endorsed that he has got the flat with full satisfaction.
In that perspective, the Ld. District Forum has rightly observed that when the generator, switches, point of telephone or flash doors were not provided, the Appellant had no reason to take possession hurriedly. Moreover, after taking possession for more than one and half year, he started raising hue and cry as to alleged deficiency. Therefore, the Ld. District Forum has rightly dismissed the complaint. We do not find any reason to interfere with the order impugned.
Resultantly, the appeal is dismissed on contest. Considering the facts and circumstances, however, we do not make any order as to costs.
The impugned Judgement/Final Order is hereby affirmed.
The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore (now at Baruipur) for information. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER [HON'BLE MRS. MRIDULA ROY] MEMBER