State Consumer Disputes Redressal Commission
Sanjoy Das vs Mr. Tapas Karar on 13 November, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/276/2015 1. Sanjoy Das S/o, Sri Mahendra Lal Das, Souvik Tower, G/A-10, Rabindra Pally, Jyangra, P.S - Baguiati, Kolkata - 700 059. ...........Complainant(s) Versus 1. Mr. Tapas Karar Proprietor of T.K. Construction, DE - 184, Baguiati, P.S - Baguiati, Narayantala (East), Kolkata - 700 059. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Joysankar Mukherjee Ms. Somasree Saha , Advocate For the Opp. Party: Mr. Rajesh Raja Sheikh, Advocate Dated : 13 Nov 2017 Final Order / Judgement Date of Filing -27.07.2015 Date of Final Hearing - 02.11.2017 The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an intending purchaser against the developer on the allegation of deficiency in services on the part of Opposite Party in a consumer dispute of housing construction.
In a nutshell, Complainant's case is that on 13.11.2013 he entered into an Agreement for Sale with the OP to purchase of a self-contained flat measuring about 1070 sq. ft. super built up area being Flat No.A-1 on the 4th floor in a building named 'Souvik Tower' at Holding No. G/A-10, Rabindra Pally, Jyangra, P.S.- Baguiati, Kolkata - 700059, Dist- North 24 Parganas within the local limits of erstwhile Rajarhat-Gopalpur Municipality at a consideration of Rs.31,03,000/-. On payment of entire consideration amount, the OP executed and registered the Sale Deed on 03.02.2014 and handed over the possession of the same. The complainant has stated that he has been residing in the said flat with their family but there are several defects in such construction like - (a) most of the marbles are cracked and of poor quality, (b) damped/water seepage in many areas especially two bed-rooms, (c) poor plumbing work resulting leakage in pipe line of bath-room and toilet, (d) individual electric meter has not been provided for the flat and (e) electrical fittings are of poor quality which are mostly broken resulting in unsafe condition. Moreover, the OP has not finished so many unfinished works mentioned in Schedule 'B' to the application. The complainant engaged one chartered engineer to ascertain the actual damage and after inspection, the engineer assessed the substantial expenses for incomplete works at Rs.19,18,000/-. The complainant has also stated that despite repeated requests and demand, the OP has not yet obtained the Completion Certificate from the Municipality. Hence, the complainant approached this Commission with prayer for several reliefs, viz. - (1) to direct the OP to remove the defects mentioned in the schedule of the petition of complaint; (2) to direct the OP to handover Completion Certificate; (3) to pay compensation of Rs.5,00,000/- for harassment and mental agony; (4) to pay litigation cost of Rs.50,000/- etc. The Opposite Party by filing a written version has stated that the complainant illegally engaged the alleged chartered engineer to ascertain the damage without consent of OP and submitted false report. However, OP has admitted that the Baguiati P.S. has already started a case against him for violation of West Bengal Municipal Act, 1993 in construction of building.
On behalf of complainant, Complainant himself has filed evidence through affidavit. He has also given reply against the questionnaire set forth by the OP. The OP has also tendered evidence through affidavit. He has also given reply against the questionnaire put forward by the complainant. Besides above witnesses, Sri Anupam Bhattarcharjee, Chartered Engineer has also given evidence as PW-2. Apart from oral evidence, the parties have relied upon some documentary evidence also. The parties have also filed brief notes of arguments in support of their case.
Admittedly, the complainant with intent to own a flat of his own, entered into an agreement with the OP/developer to purchase of a self-contained flat measuring about 1070 sq. ft. super built up area being Flat No.B-2 on the 4th floor in a building named 'Souvik Tower' at Holding No.G/A-10, Rabindra Pally, Jyangra, P.S.- Baguiati, Kolkata - 700059, Dist- North 24 Parganas within the local limits of erstwhile Rajarhat-Gopalpur Municipality at a consideration of Rs.31,03,000/-. On payment of entire consideration amount, the OP executed and registered the Sale Deed on 03.02.2014 and also handed over the possession of the same in favour of the complainant.
From the contents of the written version itself, it has come to surface that the OP/developer did not construct the building in accordance with the sanctioned building plan obtained from the office of Rajarhat-Gopalpur Municipality for which the Municipality issued a notice to the OP under Section 220 of W.B. Municipal Act, 1993 on 27.12.2013. Subsequently, one criminal case being Baguiati P.S. Case No.82/2014 dated 20.02.2014 under Sections 200/201/202/203/204A/220 of W.B. Municipal Act has been started against the OP for violation of Municipal Rules during the period of construction of the building in question. Accordingly, OP has failed to obtain Completion Certificate.
Needless to say, handing over completion certificate is one of the main obligations of the developer after accepting the entire consideration amount and unless the same is fulfilled, the cause of action is a continuous one and further on this score alone, the developer/builder must be held deficient in rendering services as 'service-provider'.
The complainant in order to prove defects or incompletion of construction at his own appointed one Sri Anupam Bhattarchrjee, PW-2 as Chartered Engineer to ascertain the defects. The report filed by the Ld. Chartered Engineer has been admitted in evidence. The said report indicates details of estimate for the construction of unfinished works of the disputed building (Souvik Tower) where PW-2 assessed the estimated cost of Rs.19,18,000/- including the cost of four passenger lift amounting to Rs.4,50,000/- and silence generator amounting to Rs.6,50,000/- and other costs. The report indicates that no estimate has been submitted with regard to the points as mentioned above (Schedule 'A' to the application) i.e. in respect of defects or damage of flat of the complainant.
Mr. Anjan Dutta, Ld. Advocate with the assistance of recorded Advocate has placed before me three decisions of Hon'ble National Consumer Commission reported in - (1) 2010 (1) CPR 132 (The General Secretary, Royale Garden Residents Welfare Association - Vs. - The Managing Directior, M/s. Padimini Infrastructure(I) Ltd.); (2) I (2011) CPJ 109 (D.S. Yadab - Vs. - Indian Railway Welfare Organisation & Anr.) and (3) 2017 (I) CPR 533 (M/s. Kapil Properties & Anr. - Vs. - Om Prakash & Ors.) and submitted that the developer is under obligation to provide defect free constructions and structures and as the report of the Ld. Engineer Commissioner speaks volume about the miserable conduct of the OP and further OP has not raised construction in accordance with the terms of Agreement for Sale, the complainants are entitled to an order for direction upon the OP to complete the unfinished works within time frame or to pay the estimated costs assessed by the Ld. Engineer Commissioner.
The interpretation and scope of Section 12(1)(c) of the Act was the subject matter of adjudication before Three-Member Bench of the Hon'ble National Consumer Commission reported in I (2017) CPJ 1 (Ambrish Kumar Shukla & 21 Ors. - vs. - Ferrous Infrastructure Pvt. Ltd.). While dealing with the scope of Section 12(1)(c) of the Act, the Hon'ble Commission has observed thus -
"The primary object behind permitting a class action such as a complaint under Section 12(1)(c) of the Consumer Protection Act being to facilitate the decision of a consumer dispute in which a large number of consumers are interested, without recourse to each of them filing an individual complaint, it is necessary that such a complaint is filed on behalf or for the benefit of all the persons having such a community of interest. A complaint on behalf of only some of them, therefore, will not be maintainable. If for instance, 100 flat buyers/plot buyers in a project have a common grievance against the Builder/Developer and a complaint under Section 12(1)(c) of the Consumer Protection Act is filed on behalf of or for the benefit of say 10 of them, the primary purpose behind permitting a class action will not be achieved, since the remaining 90 agreed persons will be compelled either to file individual complaint or to file complaints on behalf of or for the benefit of the different group of purchasers in the same project. This, in our view, could not have the legislative intent. The term 'persons interested' and 'persons having the same interest' used in Section 12(1)(c) means the persons having a common grievance against the same service provider. The use of the words 'all consumers so interested' and 'on behalf of or for the benefit of all consumers so interested', in Section 12(1)(c) leaves no doubt that such a complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking common relief and consequently having community of interest against the said service provider".
In the instance case, the complainant has neither moved an application under Section 12(1)(c) of the Act nor he has pleaded that he is pursuing complaint on his own behalf as well as on behalf of other flat owners of the building so interested in the complaint. Therefore, the report filed by the chartered engineer assessing the amount of Rs.19,18,000/- as estimated cost for the construction of incomplete or unfinished work of the entire building (Souvik Tower) cannot be entertained for not approaching the Commission in accordance with Section 12(1)(c) of the Act.
However, when it was statutory obligation on the part of the developer to handover the completion certificate after execution of Sale Deed but the developer has shown masterly inactivity in this regard even after four years of such transactions, certainly the complainant has suffered huge mental agony and harassment for which he is entitled to compensation which I assess at Rs.1,00,000/-. The overt act on the part of developer compelled the complainant being 'consumer' within the meaning of Section 2(1)(d) of the Act to approach this Commission and as such he is entitled to litigation cost which I quantify at Rs.10,000/-.
Consequently, the petition of complaint is allowed on contest in part. The OP is directed to hand over Completion Certificate to the complainants within 90 days from date otherwise the complainants shall have liberty to get the order executed through this Commission. The OP is further directed to pay Rs.1,00,000/- as compensation and Rs.10,000/- as litigation cost aggregating Rs.1,10,000/- within 30 days from date otherwise the amount shall carry interest @ 8% p.a. from date till its realisation.
The Registrar of the Commission is directed to send a copy of the order to the parties at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER