Terai Infrastructures Ltd vs Soumen Bhattacharjee & Anr

IA/17066/2019 (CONDONATION OF DELAY)

Heard. In the interests of justice and for the reasons stated in the Application, the delay of 21 days in filing of the Revision Petition is condoned.

The Application is disposed of.

REVISION PETITION

Arguments on the Revision Petition are heard. Brief facts of the case are that the Petitioner had sold the subject flat to the Respondent (hereinafter referred to as "the Complainant") vide Registered Deed of Sale dated 19.11.2010. An agreement of sale of the flat was executed on 08.04.2009. According to the Complainant, he purchased the flat on believing the offer of the facilities including grilled windows, installation of power generators, health club and gymnasium, telephone security facilities etc. mentioned in the brochure of the Petitioner. After taking possession of the flat, he found that the grills on three windows were missing and the Complainant got them installed at his own expenses. He also found that the Complex did not have the generator facility, health club and gymnasium, telephone, security facility and thus he was deprived from enjoying those facilities, which were mentioned in the brochure by the Petitioner. He also noticed problems like wall soaking and water leakage through the sides of the window frames etc., which showed that the Petitioner had not constructed the flats properly. He consulted an engineer for assessment of the repair works and the engineer had assessed the cost of such repairs for Rs.64,085/-. Despite repeated requests by the Complainant, the Petitioner did not make any effort to remove the defects and pay the expenses, Complaint was filed alleging unfair trade practices and claimed refund of the repairing cost.

The defence of the Petitioner were several. It included that the Complaint was not maintainable in the present form and nature and that the District Forum did not have jurisdiction and also that there was no deficiency in service. The Petitioner took the stand that on receiving the Complaints, the representative of the Petitioner had gone to remove the defects by doing necessary repairs but the Complainant did not permit while the same defects found in other flats in the Complex were removed by the Petitioner by doing the repairs. While the Complainant led his evidence and also answered the questionnaire of the Petitioner, the Petitioner did not lead any evidence and did not examine any witness. After hearing the parties, the District Forum framed the following issues :

Is the case maintainable in its present form and nature?

Is the case maintainable on the point of jurisdiction or is barred by limitation as per provision of the C. P. Act, 1986.

Has there any deficiency in service against the complainants from the part of the OP?

Has there any unfair trade practice committed by OP upon the complainants?

Are the complainants entitled to get the relief/reliefs as prayed for?

District Forum decided all the issues against the Petitioner after perusing the evidences led by the Petitioner and perusing the answer to the questionnaire. It also observed as under :

"After purchase of the said flat while the complainants started to reside there they faced many difficulties as regards construction of the said flat the interior and outer walls started to be damaged and this picture of damage is palpably visible from the photographs as submitted before this Forum. It is admitted by the OP company by their letter dated 11.03.2013 that they sent one person for repair work in the flat of the complainants but complainants did not allow him to that repair work which contention has been opposed by the complainants through the letter dated 18.03.2013 to the OP company. In the written notes on argument OP company on one hand has said that there are total ninety (90) flats are there in the apartment which were sold out to different persons, but no one is there coming from those purchasers to depose before this Forum to substantiate the claim of the complainants, so it is the duty of the complainants to prove their allegation in respect of damaged walls as alleged in the complaint and at this juncture if we go through that contention of letter dated 11.03.2013 that from OP company side it is seen contended therein that one Mr. Sandeep representative of Dr. Fixit was appointed for repairing purpose to visit the flat of the complainants but complainants did not allow to start the repairing works then it brings a contradictory picture of the version of the OP company and in addition to that it is further written there in that letter that OP company completed at that occasion the repairing works in the apartment occupied by one Md. Khurshed Alam, Second Floor, Flat No. 'Q'. So, the factum of necessity of repairing work is admitted by the OP company which needs no extra proof from the side of the complainants but even in spite of that it has been proved by the complainants by the evidences as adduced and produced from their side. Accordingly, we are of the considered view that the complainants have been able to prove their case as alleged in the complaint and there remains no doubt about it that being consumers after purchase of flat with consideration amount properly and on assurances of different facilities within the apartment premises, the complainants made victimised of deficiency in service from the part of the OP which resulted this Forum to decide the above three issues in favour of the complainants and the question of adoption of unfair trade practice upon the complainants by the OP side is thus proved beyond doubt and in consequence of that it is determined that the complainants are entitled to get the relief as prayed for here in this case."

Thereafter the District Forum issued the following directions :

"Hence, it is ordered that the instant Consumer Case No.140/S/2013 be and the same is allowed on contest in part against the OP company with cost.

The complainants are entitled to get the price/cost of repair of the wall of the unit i.e., Flat 'Q', 4 th Floor, Tower 'B', Amit Towers, Chiriamore, Kadamtala, Dist.- Darjeeling amounting Rs.64,085/- (Sixty Four Thousand Eighty Five rupees only) from Terai Infrastructure Ltd., the OP company of this case as well as the said OP company is also directed to compensate the complainants a further sum of Rs.20,000/- (Twenty Thousand rupees only) as against installation of three numbers of grill in the windows of bed room and kitchen together with that another sum of Rs.20,000/-(Twenty Thousand rupees only) as against losses and damages suffered by the complainants totalling Rs.1,04,085/- (One Lakh Four Thousand Eighty Five rupees only) and the OP company is directed to pay that amount within 45 days of this date of order failing which the complainants are entitled to get 9% interest per annum thereon till the date of full realization of the same.

OP company is further directed to pay a sum of Rs.10,000/- (Ten Thousand rupees only) towards cost of litigation to the complainants.

The complainants will be at liberty to put the decree/order in execution if the same is not complied with by the OP within above mentioned stipulated time."

This order of the District Forum was impugned by the Petitioner by way of Appeal before the State Commission wherein the impugned order has been passed, which is under challenge before us. The same contentions were raised by the Petitioner in the Appeal as were raised before the District Forum. The State Commission, after re-appreciating the evidences on their part and hearing the learned counsel for the parties, held as under :

"The main dispute after hearing both sides comes to our notice that three unit of grills at the time of possession was not provided in the flat of the respondent at the time of taking possession and at the time of registration of the sale deed. Another dispute is that respondent had to suffer during inhabitancy of the said flat in respect of water leakage and other inconvenience.

It appears also to this Commission that while the complainant/respondent started to reside in the flat he found the northern side of the wall portion was started to shocking of the wall and water leakage was there through window sides. Frames and more particularly this sufferance was exaggerated through the Monsoon period. The series of letters which was produced in this case on the part of the consumer complainant, It established beyond any doubt that such problems which were facing by the complainant was brought into the notice of the developer/appellant who has intentionally ignored the obligations which he undertaken at the time of execution of the agreement of sale of the said flat to the complainant. The Ld. Forum has relied upon the assessment report of one private Engineer Sri Kamal Kanta Roy who at the instance of the complainant has assessed the repair cost of the said defect of flat and assessment of cost on the part of Civil Engineer KK Roy was submitted by the respondent before the Ld. Forum where the Ld. Forum could not find any reasonable ground to disbelieve the said assessment report of the engineer. The said Engineer KK Roy was cross-examined by the appellant by putting questionnaires and the said engineer has furnished the replied against said questionnaires and ld. Forum has considered the said reply to questionnaires and accepted the report of the engineer which appeared to the Forum was genuine and acceptable.

After going through all the relevant documents placed before this Commission, it is also established beyond any doubt that while the complainant started to reside in the said Flat he faced many difficulties as regards poor construction work of the flat, the inner and outer wall started to become soaked, damaged and it was repeatedly brought of the notice to the appellant. The appellant tried to establish that he sent a person to the complainant who was entrusted to go through the said repairment work but he was not allowed by the respondent/complainant. The appellant/OP during the course of hearing before the Ld. Forum, had ample opportunity to adduce sufficient evidence to apprise the Ld. Forum that the appellant has intended shouldering the responsibility for removing all defects in the flat of the complainant/respondent. But no such evidences could be tendered before the Ld. Forum and as a result Ld. Forum was convinced with the evidences of the complainant side that the appellant company has intentionally overlooked the problems of a bone fide purchasers sufferings and his interest was not duly protected. At the time of argument, Ld. Advocate of the appellant mentions before this Commission that the possession of the flat was handed over to the complainant/respondent "as is where is basis". And in the sale deed the complainant has taken over the possession of the flat after certifying that there was no defects and for that reason, the consumer complaint was totally barred in law and he could not be given any protection under the provisions of Consumer Protection Act. Ld. Advocate of the respondent vehemently countered this argument referring the provisions of Section 28 of Indian Contract Act that in every agreement by any clause of such agreement if any party is restricted from enforcing his rights such clause to be treated as void to that extent of restrictions.

It is also settled principle of law that even if there is any obstantee clause in the agreement of sale then also the buyer has the protection to raise the difficulties before the service provider while he came to realise the deficiencies after living there. Ld. Advocate of the appellant challenged the authenticity of the estimation report. Engineer Kamal Kanta Roy as because, the Ld. Forum did not ask the said Engineer to have an assessment report and nor it was referred to him for expert opinion. It is not acceptable report as because the complainant/respondent during the course of hearing did not submit any prayer before the ld. Forum for having an expert opinion regarding the difficulties he was facing and quantum of damages to be assessed by any expert . The Suo motu assessment of an Engineer on the part the complainant/respondent was not acceptable in law. Ld. Forum has failed to understand the actual position of law and the finding of the Ld. Forum on the basis of report of Engineer K K Roy is defective one and the entire findings and decision of the Ld. Forum is baseless and based on surmise and conjecture and liable to be dismissed.

After going through the report of civil Engineer K.K Roy of 30/12/2013 and the reply to the questionnaires of the appellant from the end of the said Engineer the commission find that the Ld. Forum had the ample scope to rely upon the said document and finding of the Ld. Forum appears to us in this regard justified one.

In conclusion of hearing the appeal, the Commission find that the respondent/complainant had to endure huge sufferings due to deficiency of service on the part of the appellant and for that reason, the adjudication of the Ld. Forum goes in favour of the complainant/respondent and this Commission find no infirmity or irregularity in the order of the Ld. Forum and this Commission also do not find any reason to make interference upon the order of the Ld. Forum to this score.

Thus, the appeal appears to be devoid of any merit."

This order is impugned before us. It is argued that there was no deficiency in service and that there was no evidence before the fora below to assess the quantum and the amount awarded to the Complainant was without any basis.

We have heard arguments and perused the relevant record. The admitted facts of the case are that while the Complainant has led the evidence and also duly answered the questionnaire of the Petitioner, the Petitioner/Opposite Party did not lead any evidence. The only evidence to determine the deficiency is the evidence of the Complainant and on the basis of which, the fora below have concurred that there was deficiency in service on the part of the Opposite Party. Even otherwise, from the contentions raised in the written version filed by the Petitioner to the effect that while other flat owners allowed the Petitioner to remove the defects by carrying out the repairing work, the Complainant did not permit to do so, conclusively show that the flats were suffering from defects, which necessitated the repairs and this fact is sufficient to hold that there was deficiency in service on the part of the Petitioner. Even otherwise, the Hon'ble Supreme Court in the case of "Rubi (Chandra) Dutta Vs. United India Insurance Co. Ltd. - (2011) 11 SCC 269" has clearly held that this Commission under Section 21(b) is not permitted to re-appreciate or re-assess the evidences and give its findings on the facts of the case, especially when there are concurrent findings on the facts. If on the basis of evidences, the findings given by the fora below is a probable conclusion, it cannot be substituted by this Commission in exercise of jurisdiction under Section 21(b), the Hon'ble Supreme Court has held as under :

"23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora".

Same view is reiterated by Hon'ble Supreme Court in "Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286", wherein it has been held as under:

"17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."

We find no reason to disturb the concurrent finding of the fora below that there was deficiency in service on the part of the Petitioner. The argument of learned Counsel for the Petitioner that there was no evidence before the fora below to assess the damages awarded to the Complainant also is of no merit. The record shows that the relief is given on the basis of the evidences before the fora below.

We find no reason to interfere with the impugned order. The Revision Petition has no merits and the same is dismissed.