w w w . L a w y e r S e r v i c e s . i n

Subrata Kumar Kundu v/s Gour Hari Saha & Others

    SC. Case No. : FA/328 of 11 (Arisen out of Order Dated 31.05.2011 in Case No. 150 of 2008 of District Consumer Disputes Redressal Forum North 24 Parganas)

    Decided On, 12 February 2013

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, MEMBER

    For the Appellant: Rajesh Biswas, Sibaji Sankar Dhar, Ld. Advocates. For the Respondents: Amalendu Das, Ld.Advocate.

Judgment Text

J. Bag, Ld. Member

1. The present appeal is directed against the Order dated 31.05.2011 passed by the Ld. District Consumer Disputes Redressal Forum, North 24 Parganas in CC Case No. 150/2008 whereby the Ld. Forum below allowed the petition of complaint on contest and gave direction upon the O.Ps to provide a lift to the flat owners , to complete the works as pointed out in the report of the Advocate Commissioner within 3 months from the date of the order and to pay Rs.5,000/- as compensation and Rs.2,000/- towards cost of litigation.

The Complainant’s case, in brief , was as follows:

2. The Complainant/Appellant entered into an agreement with O.P/Respondent Nos. 1,2 & 3 of whom O.P. Nos. 1 and 2 are joint owners of land and O.P. No. 3 is the Developer of the property. The Complainant, as stated in the petition of complaint, intended to purchase the entire second floor of the new building together with all essential rights a

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d proportionate undivided share of land measuring an area of 4 cottahs 13 chaittak and 25 square ft at a consideration of Rs.40,00,000/-. The construction of the second floor of the building was allegedly incomplete, but the O.P. insisted on payment of entire consideration. After receiving the said amount the O.P. Nos. 1 and 2 sold the said property to the Complainant and O.P. No.3, the developer, also executed and registered the deed of sale as a confirming party. The deed of conveyance was registered on 12.02.2008. In spite of repeated requests for completing the unfinished works the O.Ps did not pay any heed. Hence the Complainant filed a complaint case with prayer for directions upon the O.P.s (a) to take immediate measures for ‘having main electrical service from the State Electricity Board’, (b) to take up /complete an eleven point unfinished / pending works including making arrangement for the sewerage line, fixing doors, windows, grills and window glasses and other works etc., in respect of the entire second floor flat , being the Schedule ‘A’ to the Sale Deed apart from providing garage space and (c) to pay compensation of Rs. 50,000/- for causing mental pain , agony , harassment and injury for being deprived of use and occupation of the flat and garage.3. The complaint was contested by the OP /Respondents by filing written version wherein all the material allegations were denied. The O.Ps prayed for rejection of the petition of complaint stating , interalia , that the deed of sale was duly executed by the OPs and the same was registered (Paragraph 16 of the Written Version ), that the petitioner has been possessing and enjoying the flat with his family members (Para -17 of the Written Version) and that there being no agreement with regard to the sale and purchase of the garage space (Para. 22 of the Written Version ) the OPs have no liability to execute any deed with regard to such garage.4. The Ld Forum below observed that the Deed of Conveyance has been registered on 18th February , 2008 and, having relied upon the report of the Advocate Commission appointed for the purpose of enquiry, noted that ‘several construction works are yet to be done namely arrangement of sewerage line in suit building , the construction work of stair case , installation of lift in the suit building , inside painting in the suit building , floor drainage system in the complainant’s flat etc.’ The Ld. Commission’s report not being challenged in any manner by the O.P. the Ld. Forum below, was convinced about the deficiency on the part of the O.P. and accordingly issued some directions upon the OPs which did not satisfy the Complainant / Appellant .5. Being aggrieved by and dissatisfied with the impugned order the Complainant/Appellant has come up before this Commission with the submissions that the second floor has been remaining unfinished and unfit for use and occupation , that the deed of conveyance in respect of the garage space has not been registered in spite of payment of Rs.3,50,000/- , that though he has spent Rs, 1,78,725/- for making the flat habitable , the said amount has not been ordered to be adjusted against the balance consideration money , that a total 2500 sq. ft area on the second floor only has been delivered in place of the agreed area of 3000 sq. ft.on the second floor , that the Ld . Forum below did not consider the issue of payment of Rs. 3,50,000/- towards purchase of garage and that the Ld Forum below should have passed order for payment of compensation of more than Rs. 5000/-.Decision with Reasons :6. We have gone through the appeal together with the order passed by the Ld. Forum below, amended complaint No. 150/2008 ,written version of the O.P./Respondents , final report of the Advocate Commission and the Memorandum of Agreement apart from the deed of conveyance executed on 18.02.2008 and other documents including examination-in -chief of the complainant etc. BNA has not been submitted by either of the parties. BNA has not been filed by either of the parties . Ld. Advocates appearing for both the Appellant and the Respondents have been heard at length.7. It appears that the Ld Forum below after due consideration of materials on record and submissions of Ld. Counsel for both parties directed the OP/ Respondents to provide lift in the building and to complete the works as pointed out in the Advocate Commission’s Report .8. The Ld. Advocate Commission’s Report reveals that several items of work , namely, arrangement of sewerage line in the suit building , finishing of staircase , finishing of internal doors/balcony side grills in the second floor flat of the Appellant , making of floor drainage system , completion of main entrance to the building , installation of lift , providing fire safety security measures , completion of internal pavement of the suit building , inside painting of the suit building , providing light in the staircase / along boundary/at main gate ,lift lobby or roof top of the building and some other works have not been carried out and the said Commission’s report not being disputed , the Ld. Forum’s order relating to that issue stands as it is , particularly in view of the fact that no cogent ground / evidence to the contrary could be produced by the OP/ Respondents.9. The Ld. Advocate Commission’s Report also revealed that ‘there is arrangement for taking from electricity board main electrical service for the said multistoried building . There is a transformer installed where the petitioner got the electricity connection’. Ld. Forum below, accordingly, appears to have not issued any direction on that point which , in the absence cogent reasons , we prefer not to interfere with.10. On the point of floor area of the second floor flat as purchased by the Appellant / Complainant it is seen that in the Deed of Conveyance as well as in the Agreement for Sale the super built up floor area of the flat has been noted as 3000 sq. ft. , but the Appellant / Complainant has been given possession of 2500 sq.ft. area . The contention of the Appellant in this regard goes well with the report of the Ld. Advocate Commission. Ld. Forum below appears to have remained silent about the point at issue .11. The contention of the Appellant that the OP/ Respondents neglected in delivering ‘possession of garage in the ground floor measuring about 270 square feet in spite of payments of Rs. 3,50,000/-(three lacs fifty thousand ) only out of total consideration money of Rs. 4,00,000/- (four lacs ) as agreed by the respondent and as such LD Forum below should have allowed’ the DFC 150 0f 2008 in full, appears to have been supported by a hand written note dated 31. 12. 2007 expressing commitment towards sale of 135. 53 sq. ft. garage space to the Appellant at a price of Rs. 4,00,000/- ( Four lacs) and a money receipt dated 12. 02. 2008 for Rs. 3.50,000/- . Ld. Forum preferred to make no observation on that issue which has been brought up in the present appeal.12. Another contention of the Appellant as presented in the appeal and agitated over by the Ld Advocate appearing on his behalf during hearing that he spent a huge amount from his own fund, total Rs. 1,78, 725/-, not being considered by the Ld. Forum below , has been made out with some vouchers . Whether such expenses were incurred by the Appellant / Complainant with the consent of the OP/ respondents or on the basis of any understanding for future reimbursement /adjustment is not spelt out in any manner.Now , going by the facts and circumstances supported by materials on record and evidence produced we are inclined to hold that the appeal succeeds in part on contest and do order as follows:13. Further to the compliance of the directions issued by the Ld. Forum below the Respondent/O.P.s shall give possession of (three thousand square feet as assured and recorded in the deed of conveyance minus 2500 square feet as already given in possession =) 500 square feet as remaining part of the 3,000 square feet- second -floor - flat and shall arrange to execute and register the garage space of 135 square feet on the ground floor at the agreed price of Rs.4,00,000/- (four lakh) only.14. The impugned order stands modified accordingly,15. The directions here above combined with the directions of the Ld. Forum below shall be complied within 45 days from the date of this order failing which the Appellant shall be at liberty to seek lawful remedies in execution case. There shall be no order as to costs.

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