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Sk. Masihuzzaman v/s Shah Nawaz Khan & Others

    Complaint Case No. 71 of 2016

    Decided On, 27 December 2021

    At, West Bengal State Consumer Disputes Redressal Commission Kolkata

    By, THE HONOURABLE MRS. DIPA SEN (MAITY)
    By, PRESIDING MEMBER & THE HONOURABLE MR. SHYAMAL KUMAR GHOSH
    By, MEMBER

    For the Complainant: Sumita Roy Chowdhury, Advocate. For the Opp. Party: Sima Das, Indrani Chakraborty, Advocates.



Judgment Text

Dipa Sen (Maity), Presiding Member

The instant complaint is on behalf of intending purchaser Sk. Masihuzzaman against the OPs on the allegation of deficiency in service in respect of non execution and non registration of self-contained residential flat on the part of the builder in relation to housing construction.

The brief fact of the case is that the complainant has entered into a development agreement on 24th April, 2008 for purchasing of a flat being No. C on the North South East West portion of the third floor of the building measuring more or less 717 sq. ft. consisting of two bed room one kitchen/dining with hall, one drawing/living room two toilets and one balcony along with a car parking space together with undivided proportionate impartiable share in land and common areas at premises No. 31, Dr. Sudhir Basu Road, Kolkata- 23. As per that agreement it was also decided in between the parties that the subject flat will be handed over within 18 months from the date of executing of that agreement. That the total consideration amount for the said flat was decided as of Rs. 10,75,000/- and Rs. 2,00,000/- was decided for car parking space as such the complainant has to pay Rs. 12,75,000/- altogether for the flat and the car parking space. The complainant has started paying consideration amount in instalments as per agreement and till date they have already paid a total amount of Rs. 9,25,000/-. The complainant waited for the stipulated period of 18 months for the completion of the said flat and car parking space as promised by the OP. The complainant visited the office of the OP Nos. 1 and 2 to expedite of the construction work and the OP assured that they are trying to complete the construction very soon. and to keep the amount ready for balance payment and cost of registration of the deed. But the OP failed and neglected to complete the construction work by that stipulated period of time of 18 months. Subsequently, the OP 1 Mr. Shah Nawaz Khan could not contacted and the OP 2 candidly confessed that the construction of G4 storied building was somehow turned incomplete condition and not in habitable one. The OP 2 expressed his inability to complete the building and to make it habitable for living. Without keeping any other way the complainant at the request of the OP No. 2 to take possession of the said incomplete flat. After taking possession of the said flat they have done inside work of the flat to make it habitable which incurred huge amount for such work. Altogether they have paid Rs. 73,969/- towards the expense for completion of the incomplete internal work. Suddenly on 27.05.2015 the OP 1 sent a letter assuring that in complete construction work of the building will be completed as per terms and condition of the agreement for sale. But in spite of that the OP 1 did not take any further step to complete the incomplete construction work and other works of the said building. The registration of the deed of conveyance in respect of the said flat is still remain pending. The complainant is ready and willing to make payment of balance consideration amount and without keeping any other way, complainant approached before the Commission for redressal of his grievances with a prayer for direction upon the OP Nos. 1 and 2 :-

1. to pay a sum of Rs. 73,969/- only towards the expenses incurred by the complainant for completion of the incomplete work inside his flat;

2. to complete the incomplete the work of the building including car parking space;

3. to register the deed of conveyance in the name of the complainant and to hand over the completion certificate along with prayer for compensation for mental agony harassment and deficiency in service along with other prayer of litigation cost.

It appears from the record that OP Nos. 1 and 2 are the developers and OP No. 3 to 7 are the land owners. On 27.06.2016 the case was fixed ex parte against the OP Nos. 1 and 2 and after demise of OP No. 5 the name of OP No. 5 has been substituted with the name of his legal heirs, OP Nos. 5 and 6 in order No. 12 dated 10th March, 2018.

By filing W.V the OP Nos. 3 to 7 (landowners) have denied and disputed all allegations made against them. They have stated that they are the land owners of the said premises. Being landowners these OPs also entrusted upon the OP Nos. 1 and 2 (builders). and till this date the OP Nos. 1 and 2 did not comply the terms and conditions of the joint Venture Agreement dated 24th April, 2008 by and between them and did not yet complete the construction work of 50% of owner’s allocation and they are also suffering a lot for such act of the OP 1. The OP 1 and 2/developer have stopped making payment of monthly rent to the OP Nos. 3, 4 and 5. OP Nos. 1 and 2 deliberately not taking step to complete the incomplete work of said building and not handing over the possession to the OPs as per agreement to get the redressal of their own grievances, the OP/landowners filled application before DCDRF, Kolkata, Unit- I. The OPs have no knowledge about the transaction between the complainant and the OP Nos. 1 and 2. The complainant has no allegation against them and they are paying for dismissal of the said application filed by the complainant against them.

The case is taken up for hearing ex parte against OP No. 1 and 2. Heard the Ld. Advocate for the complainant. Perused all documents.

In this present case it appears to us that by filing written version the OP landowners has admitted the fact that the construction work of the said building is still incomplete and they have filed a complaint case against the developers. But it has been already decided by apex court in several cases that the conflict between the builders and landowners will not effect the interest of the consumers.

The builders OP No. 1 and 2 have not filed W.V but by filing interim Application they have admitted the fact that they have received Rs.7,25,000/- as part consideration amount against the subject flat and the construction work of the said flat is still pending.

The material on record clearly demonstrate that the complainant is a consumer u/s 2 (1) (d) of the C.P. Act, 1986, as the complainant has hired the services of the Developer OP Nos. 1 and 2 relating to housing construction. But the OPs did not complete the work of the said flat within stipulated period as per agreement dated 24th April, 2008. Registration of Deed of Conveyance and issuance of completion certificate from the appropriate authority is still pending.

The OP Nos. 1 and 2 (developers) did not file any written version as such the statements and averment made by the complainant remained uncontroverted and unchallenged.

Moreover, the developers OP No. 1 and OP No. 2 already admitted the deficiency by filing one Interlocutory Application on affidavit.

With the above discussions, we therefore, come to the conclusion that the OPs have deficiency in service and for such act of the OPs the complainant has to suffer huge financial loss as well as mental agony and unnecessary harassment.

As the complainant is enjoying the possession of the flat there is no separate order as to compensation.

With the above discussions, the complainant is allowed ex parte against OP No. 1 &2 with the following directions:-

1. The OP Nos. 1 and 2 are directed to complete the unfinished job to the specification as mentioned in the schedule of the Agreement dated within 90 days from the date of communication of the order.

2. The OP Nos. 1 to 7 are jo

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intly and severally directed to execute and registered the deed of conveyance in respect of flat No. C including car parking space as per the agreement dated 24.04.2008 within 90 days subject to payment of remaining balance consideration amount of Rs. 3,50,000/- (three lakh fifty thousand) only by the complainant. 3. The OP Nos. 1 and 2 are further directed to pay compensation of Rs. 1,00,000/- (one lakh) for mental agony and harassment along with litigation cost of Rs. 25,000/- (twenty five thousand) to the complainant. 4. The OP Nos. 1 and 2 are again directed to refund of Rs. 73,969/- (seventy three thousand nine hundred sixty nine) only along with interest @ 6% p.a. till realisation. The Registrar of the Commission is directed to send a copy of the same to the parties at once for information and compliance.
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