State Consumer Disputes Redressal Commission
Sri Suman Panja vs Subham Construction on 12 May, 2017
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/198/2014 1. Sri Suman Panja Vill. Kataliya, P.O. Nibra, P.S. Domjur, Dist. Howrah. 2. Smt. Rituparna Panja Vill. Kataliya, P.O. Nibra, P.S. Domjur, Dist. Howrah. ...........Complainant(s) Versus 1. Subham Construction Represented by Rajeshwar Shaw, 7Q, Kamardanga Road, P.S. Entally, Kolkata -700 046. 2. Smt. Suchna Saha Vill. & P.O. - Makardah, P.S. Domjur, Dist. Howrah. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Mr. Alok Mukhopadhyay Mrs. Tanusree Dhar Mr. Souvik Chatterjee , Advocate For the Opp. Party: Dated : 12 May 2017 Final Order / Judgement Date of filing : 11.06.2014 Date of hearing : 02.05.2017 The instant complainant under Section 17 of the Consumer Protection Act, 1986 ( for brevity, "the Act" ) is at the instance of an intending purchaser against the developer (OP No.1)and the land owner ( OP No.2) on the allegation of deficiency in service on the part of them in a consumer dispute of housing construction.
Cut short of details, complainants' case is that on 29.05.2013 they entered into a registered agreement for sale with the OP No.1 to purchase of a flat measuring about 800 sq.ft. super built up area on the 2nd floor Western Side (front side ) and one garage measuring about 100 sq. ft. at Village & P. O. - Makardah, P. S. - Domjur, District - Howrah at a total consideration of Rs. 20,60,000/-. The complainants paid a sum of Rs. 10,60,000/- at the time of execution of agreement for sale and subsequently they have further paid Rs. 5,88,000/- by virtue of a bank loan from HDFC Bank on 02.07.2013 and it was agreed that the rest of the amount will be paid by the bank on behalf of the complainants as per development of the said building. It was stipulated that the OP No.1 shall complete construction within three months from the date of agreement and shall deliver peaceful possession of the subject flat to the complainants. The complainants submit that on a number of occasions they asked the OP No.1 to hand over the physical possession of the flat and car parking space to them but it turned a deaf ear. Hence, the complainants approached this Commission with prayer for certain reliefs, viz - (1) to direct the OPs to hand over the possession of the flat and car parking space by way of registered sale deed ;(2) to pay compensation of Rs. 10,000/- etc. The OP No.1/developer by filing a written version admitted that he entered into an agreement with the complainants to sale the subject flat at a consideration of Rs.20,60,000/- and received an amount of Rs.16,48,000/- and the balance amount of Rs.4.12 lakhs is still due and payable by the complainants and due to non-payment of the said amount the flat in question could not be registered in favour of the complainants.
During hearing of the case, complainant no.1 Shri Suman Panja has tendered evidence on affidavit. He has also given reply against the questionnaire set forth by the OP No.1. However, OP No.1 has not adduced any evidence.
The OP no 2 /Land owner did not contest.
On the basis of the pleadings aforesaid, the following points are framed for adjudication:-
(1) Are the complainants 'consumer' as defined in Section 2(1)(d)(ii) of the Act ?
(2) Are the OPs deficient in rendering services to the complainant? and (3) Are the complainant entitled to the relief or reliefs, as prayed for ?
On the basis of materials on record, we shall proceed to discuss and see how far the complainants have been able to prove their case.
All the three points are taken up together to avoid repetition.
Admittedly, the OP is the owner of a piece of land measuring about 03 cottahs 07 chittaks and 08 sq. ft. lying and situated at Moza - Makardah, P. S. - Domur, District - Howrah. The land owner had entered into a development agreement with the OP No.1/developer for raising a multi-storied building thereon. Accordingly, the owner of the property executed a General Power of Attorney in favour of the developer.
Admittedly, on 29.05.2013 being emboldened with the power entrusted upon him by the land owner the developer entered into an agreement with the complainant to sell a residential flat measuring about 800 sq.ft. super built up area on the 2nd floor Western Side (front side ) and one garage measuring about 100 sq. ft. at Village & P. S. - Makardah, P. S. - Domjur, District - Howrah at a total consideration of Rs. 20,60,000/-. Admittedly, out of the total consideration amount, complainants have already paid Rs.10,60,000/- plus Rs.5,88,000/- totalling Rs.16,48,000/-.
It was stipulated that the developer shall complete the construction of the building within three months from the date of execution of agreement for sale but the materials on records speak that the OP No.1 could not keep his commitment. At the behest of the complainants, one Engineer Commission was appointed and from the report of the Engineer Commissioner it reveals that there are several matters which are yet to be constructed by the developer, which are -
A Common Area :-
i) Electrical work to be completed,
ii)Approach to the building /flats to be completed,
iii) Stair cases hand rails to be fitted,
iv) Main entrance doors not fitted,
v) Other flats doors and windows and Varandah are without any windows, doors and steel grills so that outsiders can enter the building,
vi) No water supply for the apartment buildings /flats,
vii) Common spaces, windows, steel grills not fitted,
viii) Common space, plaster of paris and painting not completed,
ix) Outside painting of the apartment building not done.
x)Roof treatment not done,
xi) Stair room incomplete,
xii) Sanitary pit not done and
xiii) Rain water pipes for the building not fitted.
The Engineer Commission has submitted a report that the flat and garage under reference are not suitable for habitation and it will be in habitable condition only after the above mentioned balance activities are completed fully for the flat, garage and the apartment building. According to the opinion of expert, the estimated cost for completion for the subject flat would be Rs. 3,25,000/-
On evaluation of materials on record and in view of our foregoing discussion the complainant is entitled to relief, as prayed for. In my view a direction upon the OPs to hand over the possession and to execute and register the Deed of Conveyance after receipt of balance consideration amount of Rs.4,12,000/- will be proper. The OP No.1 harassed the complainants which compelled them to knock the door of this Commission for redressal of their grievances and as such the OP No.1 must pay compensation of Rs.2,00,000/- and litigation cost of Rs. 20,000/- for harassment and mental agony of the complainants.
In view of the above, all the three points are decided and disposed of in favour of the complainants.
In the result, complaint succeeds in part. It is, accordingly, ORDERED that the petition of complaint is allowed on contest against OP No. 1 with costs of Rs. 20,000/- and exparte against OP Nos. 2 to /land owner without any order as to costs.
The OPs are jointly and severally directed to hand over the possession and to execute and register the Deed of Conveyance in respect of Second Schedule property as mentioned in the registered agreement for sale dated 29.05.2013 in favour of the complainants within three months from date after removal of the defects as mentioned by the Engineer Commissioner in his report dated 22.02 2016 and on completion of the same, the complainants must pay Rs.4,12,000/- as balance consideration amount at the time of delivery of possession and execution of the deed, otherwise the complainants will get the deed registered through the machinery of the Commission on depositing Rs.4,12,000/- in the State Consumer Welfare Fund of this Commission through a Bank Draft.
The OP No.1 is directed to make payment of Rs.2,00,000/- as compensation and Rs. 20,000/- as litigation cost within 30 days from date otherwise the amount shall carry interest @ 9% p.a. from this date till its realisation.
The Registrar of the Commission is directed to send copies of the judgement to the parties of the case at once free of cost for information and compliance. [HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER