Consumer Commision judgement against Bengal DCL -- Must read!
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MalanchaOwnersGroup
Sep 4, 2012, 3:56:18 AM9/4/12
to bengal-dc...@googlegroups.com
Bengal DCL in the past
has tried to hide its own incompetence and poor management blaming HIDCO
for various undeliverables. The HON'BLE JUSTICE held BDCL responsible
for unfair trade practice and asked it to compensate the complainant adequately.
Original link:
http://164.100.72.12/ncdrcrep/judgement/40101104155639949CC%2057%202009.htm
THE ORDER:
State Consumer Disputes Redressal Commission
West Bengal
BHABANI BHAVAN (GROUND FLOOR)
31, BELVEDERE ROAD, ALIPORE
KOLKATA – 700 027
S.C. CASE NO. : CC/57/2009
DATE OF FILING : 10.08.2009 DATE OF FINAL ORDER: 03.11.201
COMPLAINANTS
Mr. Subhra Dutta
And
Mrs. Rumia Dutt
OPPOSITE PARTY
BENGAL DCL Housing Development Company Limited
Block DG 4
2nd Floor, Sector-II,
Salt Lake City
Kolkata-700 091.
BEFORE : HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT
MEMBER: MRS. S.MAJUMDER
MEMBER : MR. S.COARI
FOR THE PETITIONER / APPELLANT: Mr. B.Prasad, Ld. Advocate
FOR THE RESPONDENT / O.P.S.: Mr. N.R.Mukherjee, Ld. Advocate
The complainants namely Mr. Subhra Dutta and Mrs. Rumia Dutta, filed the present complaint case for compensation and other reliefs against the OP namely BENGAL DCL Housing Development Company Limited, thereby alleging unfair trade practice, deficiency in service in respect of a transaction entered into between the parties through a written agreement for the purpose of purchase of a flat by the complainants from the OP for valuable consideration.
The case of the complainants, in brief, is that in pursuance to an advertisement in the website and also from the printed brochure supplied by the OP the complainants became interested and purchased a flat for valuable consideration to the tune of Rs. 23,33,960/-. As per the advertisement the flat was provided with different types of facilities and amenities like landscape garden, children’s park, residents’ club, fire protection system and swimming pool. It is the specific case of the complainants that in spite of payment of the entire consideration money the Ops failed and neglected to handover the possession of the flat within the stipulated period. According to the complainants’ case, after the expiry of a prolong period when the flat was ultimately handed over to the complainants it was found not fully complete and unfit for habitable use. Moreover, the promised amenities were also not available. Besides that, according to the complainants’ case, the basic facilities like that of water supply, sewerage and drainage, telephone and cable T.V. connections and approach roads were found incomplete. There was also no Completion Certificate and the complainants after taking possession of the flat in question in such unfinished condition requested the OP to make amends by rendering and fulfilling the unfinished works as mentioned above, but the OP has intentionally avoided to do so and hence, the petition of complaint.
The OP contested the case by filing written version thereby denying all the material averments of the petition of complaint contending inter alia that there was no intentional laches and lacuna at the instance of the OP in handing over the possession of the flat within the stipulated period as the OP had to depend upon other approved institutions in the matter of supply of electricity, water connection, etc. and, therefore, there was some delay in handing over the possession of the flat in favour of the complainants within the stipulated period. The delay being not within the control of the OP question of negligence and/or deficiency in service as claimed by the complainants does not arise at all. According to the OP, the complainant was also guilty of not making the balance/residual payment within time and as such, the complainants are precluded from raising the point of unfair trade practice and/or deficiency in service in the matter of handing over the possession of the flat in favour of the complainant. The complainant intentionally delayed in taking possession of the flat in favour of the complainant. The present petition of complaint having been filed on all false and frivolous grounds the same is liable to be dismissed with cost.
Upon pleadings of the parties the following issues are framed for proper adjudication of the present case.
1. Is the case maintainable in the present form?
2. Are the complainants consumers as per provisions of Consumer Protection Act?
3. Are there any deficiency/unfair trade practice and negligence on the part of the Ops as claimed by the complainants?
4. Are the complainants entitled to any relief as prayed for?
DECISION WITH REASONS
All the points are taken up together for the sake of convenience. At the time of hearing it has been submitted on behalf of the OP that in this case after putting various false and frivolous pretext ultimately the complainants have taken possession of the flat in question after payment of balance amount. According to the Ld. Advocate for the Ops, the delay in handing over possession of the flat in question occurred admittedly due to some practical difficulties faced by the Ops in that aspect. According to the Ld. Advocate, it is an admitted position that as the OP had to depend upon different agencies for providing a number of amenities to the flat in question like supply of water, sewerage facilities, construction of approach road, etc. it was not possible on the part of the OP to deliver the flat in question within the stipulated period. While elaborating on this point the Ld. Advocate for the OP has urged before us that the complainants are very much aware that in this respect HIDCO was entrusted to do the needful work. But as there was some delay on the part of HIDCO in rendering those amenities/facilities, there was obviously some unintentional delay in handing over the flat in question in favour of the complainants. According to the Ld. Advocate, for this unintentional delay the OP/Construction Company should not be held responsible and the case made out by the complainants in this respect is not at all maintainable under the law. The Ld. Advocate has urged before us that if there was any delay in handing over the possession of the flat in favour of the complainants the same was not within the control of the OP and thus there cannot be any willful negligence or laches and deficiency in service on the part of the OP in this regard. It has further been submitted on behalf of the OP that under similar circumstances a number of other flat owners of the said site are already residing and they have not made out any such case as by the present complainants. This aspect of the case clearly goes to show that the complainants have tried to put up false and fictitious allegations against the OP. According to the Ld. Advocate, the complainants by putting up all false and fictitious queries and pleas have intentionally delayed in taking possession of the flat in question, though the OP was always ready and willing to do the same. Moreover, according to the Ld. Advocate for the OP, the complainants never paid the final/balance payment in fulfillment of the contractual agreement between the parties. As there was abnormal delay on the part of the complainants to make the final payment, there was also some delay in giving possession of the flat in favour of the complainants. While concluding his submissions the Ld. Advocate for the OP has urged before us that on the face of the record it would be crystal clear that there was absolutely no deficiency in service at the instance of the OP as claimed by the complainants in the matter of giving possession of the flat in question to the complainants. According to the Ld. Advocate, the present complaint case having been filed on wild and vague allegation the same is liable to be dismissed with cost.
We have duly considered the submissions so put forward on behalf of both sides and also have gone through the pleadings of the parties and the materials on record including evidence led by the parties and find that in this case the complainants have put up a case to the effect that in spite of making full payment of the consideration money the OP has intentionally failed to deliver the possession of the flat in question within the stipulated period. Besides that, the amenities and facilities promised by the OP to be annexed with the flat were also wanting. In spite of complainants’ repeated requests and demands the OP has not done the needful in this aspect and hence, the petition of complaint has been filed for redressal. The OP, on the other hand, has tried to put up a case to the effect that the OP is not responsible in not supplying the necessary amenities like that of water facilities, sewerage connection and other amenities due to some delay at the instance of the other agencies like that of HIDCO who was entrusted to do the same. We have carefully gone through the materials on record and having considered the submissions so put forward on behalf of both sides we are of considered opinion that there is no escape of the OP from the admitted position that there was abnormal delay in giving possession of the flat in question in favour of the complainants and that in this aspect admittedly the OP could not give possession within the stipulated period as per the agreement entered into between the parties. In this perspective we also hold that in the present society there are innumerable instances like that of the present case where a person is allured by different advertisements at the instance of the construction companies thereby assuring different kinds of amenities annexed to the housing complex and under such circumstances, individuals are attracted to the fanciful allurements and fall pray at the hands of the promoters and/or builders. In the present case we find that the OP has taken a plea that it was HIDCO which was responsible for causing the abnormal delay and not making ready the infrastructure of the housing complex by completing the water facilities, sewerage system, club facilities, swimming pool, etc. In our opinion, in the present circumstances, there is no escape of the OP by taking such plea and that the OP must face the consequences. From the materials on record we are satisfied that the case as made out by the complainants are quite acceptable and accordingly we hold that the present petition of complaint is quite maintainable. The complainants are consumers in the true sense of the Consumer Protection Act and that there is deficiency and unfair trade practice at the instance of the Ops as claimed by the complainants. In view of our foregoing discussion we are of considered opinion that ends of justice would be met if the OP be directed to pay a compensation of Rs. 5,00,000/- (Rupees five lakhs only) towards deficiency in service and unfair trade practice and also be directed to complete the assured infrastructure annexed to the flat in question within two months from the date of this order.
Hence, it is ORDERED that the Complaint stands allowed on contest without any order as to cost. The OP is directed to pay compensation of Rs. 5,00,000/- (Rupees five lakhs only) towards deficiency in service and unfair trade practice and also is directed to complete the assured infrastructure annexed to the flat in question within two months from the date of this order, failing which penalty @ Rs. 500/- (Rupees five hundred only) per day shall be imposed upon the OP for the period of default.
Original link:
http://164.100.72.12/ncdrcrep/judgement/40101104155639949CC%2057%202009.htm
THE ORDER:
State Consumer Disputes Redressal Commission
West Bengal
BHABANI BHAVAN (GROUND FLOOR)
31, BELVEDERE ROAD, ALIPORE
KOLKATA – 700 027
S.C. CASE NO. : CC/57/2009
DATE OF FILING : 10.08.2009 DATE OF FINAL ORDER: 03.11.201
COMPLAINANTS
Mr. Subhra Dutta
And
Mrs. Rumia Dutt
OPPOSITE PARTY
BENGAL DCL Housing Development Company Limited
Block DG 4
2nd Floor, Sector-II,
Salt Lake City
Kolkata-700 091.
BEFORE : HON’BLE JUSTICE MR. P.K.SAMANTA, PRESIDENT
MEMBER: MRS. S.MAJUMDER
MEMBER : MR. S.COARI
FOR THE PETITIONER / APPELLANT: Mr. B.Prasad, Ld. Advocate
FOR THE RESPONDENT / O.P.S.: Mr. N.R.Mukherjee, Ld. Advocate
The complainants namely Mr. Subhra Dutta and Mrs. Rumia Dutta, filed the present complaint case for compensation and other reliefs against the OP namely BENGAL DCL Housing Development Company Limited, thereby alleging unfair trade practice, deficiency in service in respect of a transaction entered into between the parties through a written agreement for the purpose of purchase of a flat by the complainants from the OP for valuable consideration.
The case of the complainants, in brief, is that in pursuance to an advertisement in the website and also from the printed brochure supplied by the OP the complainants became interested and purchased a flat for valuable consideration to the tune of Rs. 23,33,960/-. As per the advertisement the flat was provided with different types of facilities and amenities like landscape garden, children’s park, residents’ club, fire protection system and swimming pool. It is the specific case of the complainants that in spite of payment of the entire consideration money the Ops failed and neglected to handover the possession of the flat within the stipulated period. According to the complainants’ case, after the expiry of a prolong period when the flat was ultimately handed over to the complainants it was found not fully complete and unfit for habitable use. Moreover, the promised amenities were also not available. Besides that, according to the complainants’ case, the basic facilities like that of water supply, sewerage and drainage, telephone and cable T.V. connections and approach roads were found incomplete. There was also no Completion Certificate and the complainants after taking possession of the flat in question in such unfinished condition requested the OP to make amends by rendering and fulfilling the unfinished works as mentioned above, but the OP has intentionally avoided to do so and hence, the petition of complaint.
The OP contested the case by filing written version thereby denying all the material averments of the petition of complaint contending inter alia that there was no intentional laches and lacuna at the instance of the OP in handing over the possession of the flat within the stipulated period as the OP had to depend upon other approved institutions in the matter of supply of electricity, water connection, etc. and, therefore, there was some delay in handing over the possession of the flat in favour of the complainants within the stipulated period. The delay being not within the control of the OP question of negligence and/or deficiency in service as claimed by the complainants does not arise at all. According to the OP, the complainant was also guilty of not making the balance/residual payment within time and as such, the complainants are precluded from raising the point of unfair trade practice and/or deficiency in service in the matter of handing over the possession of the flat in favour of the complainant. The complainant intentionally delayed in taking possession of the flat in favour of the complainant. The present petition of complaint having been filed on all false and frivolous grounds the same is liable to be dismissed with cost.
Upon pleadings of the parties the following issues are framed for proper adjudication of the present case.
1. Is the case maintainable in the present form?
2. Are the complainants consumers as per provisions of Consumer Protection Act?
3. Are there any deficiency/unfair trade practice and negligence on the part of the Ops as claimed by the complainants?
4. Are the complainants entitled to any relief as prayed for?
DECISION WITH REASONS
All the points are taken up together for the sake of convenience. At the time of hearing it has been submitted on behalf of the OP that in this case after putting various false and frivolous pretext ultimately the complainants have taken possession of the flat in question after payment of balance amount. According to the Ld. Advocate for the Ops, the delay in handing over possession of the flat in question occurred admittedly due to some practical difficulties faced by the Ops in that aspect. According to the Ld. Advocate, it is an admitted position that as the OP had to depend upon different agencies for providing a number of amenities to the flat in question like supply of water, sewerage facilities, construction of approach road, etc. it was not possible on the part of the OP to deliver the flat in question within the stipulated period. While elaborating on this point the Ld. Advocate for the OP has urged before us that the complainants are very much aware that in this respect HIDCO was entrusted to do the needful work. But as there was some delay on the part of HIDCO in rendering those amenities/facilities, there was obviously some unintentional delay in handing over the flat in question in favour of the complainants. According to the Ld. Advocate, for this unintentional delay the OP/Construction Company should not be held responsible and the case made out by the complainants in this respect is not at all maintainable under the law. The Ld. Advocate has urged before us that if there was any delay in handing over the possession of the flat in favour of the complainants the same was not within the control of the OP and thus there cannot be any willful negligence or laches and deficiency in service on the part of the OP in this regard. It has further been submitted on behalf of the OP that under similar circumstances a number of other flat owners of the said site are already residing and they have not made out any such case as by the present complainants. This aspect of the case clearly goes to show that the complainants have tried to put up false and fictitious allegations against the OP. According to the Ld. Advocate, the complainants by putting up all false and fictitious queries and pleas have intentionally delayed in taking possession of the flat in question, though the OP was always ready and willing to do the same. Moreover, according to the Ld. Advocate for the OP, the complainants never paid the final/balance payment in fulfillment of the contractual agreement between the parties. As there was abnormal delay on the part of the complainants to make the final payment, there was also some delay in giving possession of the flat in favour of the complainants. While concluding his submissions the Ld. Advocate for the OP has urged before us that on the face of the record it would be crystal clear that there was absolutely no deficiency in service at the instance of the OP as claimed by the complainants in the matter of giving possession of the flat in question to the complainants. According to the Ld. Advocate, the present complaint case having been filed on wild and vague allegation the same is liable to be dismissed with cost.
We have duly considered the submissions so put forward on behalf of both sides and also have gone through the pleadings of the parties and the materials on record including evidence led by the parties and find that in this case the complainants have put up a case to the effect that in spite of making full payment of the consideration money the OP has intentionally failed to deliver the possession of the flat in question within the stipulated period. Besides that, the amenities and facilities promised by the OP to be annexed with the flat were also wanting. In spite of complainants’ repeated requests and demands the OP has not done the needful in this aspect and hence, the petition of complaint has been filed for redressal. The OP, on the other hand, has tried to put up a case to the effect that the OP is not responsible in not supplying the necessary amenities like that of water facilities, sewerage connection and other amenities due to some delay at the instance of the other agencies like that of HIDCO who was entrusted to do the same. We have carefully gone through the materials on record and having considered the submissions so put forward on behalf of both sides we are of considered opinion that there is no escape of the OP from the admitted position that there was abnormal delay in giving possession of the flat in question in favour of the complainants and that in this aspect admittedly the OP could not give possession within the stipulated period as per the agreement entered into between the parties. In this perspective we also hold that in the present society there are innumerable instances like that of the present case where a person is allured by different advertisements at the instance of the construction companies thereby assuring different kinds of amenities annexed to the housing complex and under such circumstances, individuals are attracted to the fanciful allurements and fall pray at the hands of the promoters and/or builders. In the present case we find that the OP has taken a plea that it was HIDCO which was responsible for causing the abnormal delay and not making ready the infrastructure of the housing complex by completing the water facilities, sewerage system, club facilities, swimming pool, etc. In our opinion, in the present circumstances, there is no escape of the OP by taking such plea and that the OP must face the consequences. From the materials on record we are satisfied that the case as made out by the complainants are quite acceptable and accordingly we hold that the present petition of complaint is quite maintainable. The complainants are consumers in the true sense of the Consumer Protection Act and that there is deficiency and unfair trade practice at the instance of the Ops as claimed by the complainants. In view of our foregoing discussion we are of considered opinion that ends of justice would be met if the OP be directed to pay a compensation of Rs. 5,00,000/- (Rupees five lakhs only) towards deficiency in service and unfair trade practice and also be directed to complete the assured infrastructure annexed to the flat in question within two months from the date of this order.
Hence, it is ORDERED that the Complaint stands allowed on contest without any order as to cost. The OP is directed to pay compensation of Rs. 5,00,000/- (Rupees five lakhs only) towards deficiency in service and unfair trade practice and also is directed to complete the assured infrastructure annexed to the flat in question within two months from the date of this order, failing which penalty @ Rs. 500/- (Rupees five hundred only) per day shall be imposed upon the OP for the period of default.
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