CONSUMER DISPUTES REDRESSAL FORUM, HOOGHLY
CC CASE NO. 49 OF 2008
1. Sri Dilip Barai,
Flat no.3E, 3rd floor.
2. Sri Gobinda Mukherjee,
Flat no. 5D, 5th floor.
3. Sri Sujit Kumar Halder,
Flat no.5F, 5th floor.
4. Sri Biswanath Das,
Flat no.5E, 5th floor.
5. Sri Partha Pratim Maitra,
Flat no.4G, 4th floor,
6. Sri Naresh Dagga,
Flat no.3D, 3rd floor.
7. Sri Samir Chatterjee
Flat no.4D, 4th floor,
8. Smt.Sathi Dey,
Flat no.3C, 3rd floor,
9. Miss Shila Roy
Flat no.2H, 2nd floor,
10. Sri Subrata Mukhopadhyay
Flat no.2F, 2nd floor,
11. Smt.Tapati Ghosh,
Flat no. 5G, 5th floor,
12. Sri Ujjal Ranjan Basu
Flat no.3G, 3rd floor,
13. Smt.Bani Chakraborty (Mukherjee)
Flat no.3B, 3rd floor,
14. Sri Pratap Singh
Flat no.5B, 5th floor,
15. Sri Ganga Bishnu Shaw,
Flat no.2E, 2nd floor
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16. Sri Dilip Kumar Mondal
Flat no.2G, 2nd floor
17. Smt.Ruma Mitra
Flat no.4E
18. Smt.Sumana Dhirghangi
Flat no.5l
19. Smt.Mitali Chakraborty
Flat no.4B
All of Rishra Municipal Super Market
Complex, Unit no.l, P.O. & P.S.Rishra, Dist.Hooghly. …Complainants
-vs-
Sri Raja Ram Jalan, Director of M/s Dreamland
Construction Pvt.Ltd., 51 Dinen Bhattacharjee Sarani,
Rishra, Hooghly, residing at 51B, Rash Behari Avenue
Kolkata-25. …. Opposite Party
Judgement delivered on 21.12.2009
Present : D.K.Basu ….. President
S.Basu ….. Member
The fact of the complainants’ case is as follows :
The complainants Sri Dilip Barai, Sri Gobinda Mukherjee and 17 others have filed the instant case against the OP Sri Rajaram Jalan alleging that the complainants purchased their respective flats from the Op by the respective registration deeds of the apartment complex known as Unit no.I , Rishra Super Market Complex whereon clause F (I) , the agreement of Sale deed dated 19.1.2002 reflects that “ within six months from the delivery of all the units of flats/shops /office spaces comprised in the building or earlier the First party shall form or cause the owners to form an Association of Owners of the flats for the common purpose . Such Association shall have such Constitution, Rules and Regulations as be framed and shall be registered under the relevant laws.” It is also stipulated therein that every flat owners shall pay proportionate maintenance charges to the Vendor so long the said Flat owners Association is not formed . Till the date of filing this case the Op has not informed the flat owners whether all the flats in the Apartment have been sold or not and therefore, till date, no Association has yet been formed legally and /or officially. On 24.11.2002 in a meeting held by the owners of the flats , an
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informal committee was constituted and it was dissolved that the owners of the flats would deposit maintenance charge @ .40 paise per sq.ft. super built up area till the other system was formed or reduced. Sometime past the services of the OP towards supply of electricity, water, security services, lift services have become irregular and the complainants had to suffer badly. Instead of informing the fact of sufferance the Op did nothing. The Op has now totally stopped the sweeping service, withdrawn security service, stopped the lift facility on and from 1.3.2008 depriving the complainants from services and amenities. On 31.3.2008 the complainants sent an Advocate’s letter to the OP by registered post with A/d which returned with the postal remark ‘not claim’. By filing the instant case they have prayed a direction upon the Op to resume /render all amenities , services and facilities forthwith as per the terms of Deed of conveyance to the flat owners, a direction upon the Op to furnish the list of names of all the flat owners of the apartment , compensation of Rs.80,000/-, litigation cost of Rs.10,000/- and other reliefs.
The Op by filing a written version has contested this case denying all the material averments of the complaint contending inter alia that the complainants are the owner of the flats of the said apartment. Clause F (I) of the agreement for Sale deed dated 19.1.2002 manifest the formation of Association of the flats by the owners of the Flats. But the complainants did not comply with their duties postulated in the said terms of the agreement. On a meeting dated 24.11.2002 the flat owners themselves took over the work of maintenance of the building. On 22.12.2002 the Op handed over the paper of framed committee instead of Association all the accounts . The complainant no.l Sri Dilip Barai was appointed Secretary of the said committee who issued a notice on 21.10.2003 to stop common facilities due to non payment of maintenance cost by the flat owners. In a meeting in the chamber of the Chairman, Rishra Municipality on 31.7.2004 with the flat owners it was dissolved for formation of Association but due to pandemonium, the meeting could not be proceeded. Likewise, a meeting dated 31.10.2004 no decision could be taken by the flat owners. The Op further states that the main problem was there that the flats are of different sizes . The flat owners divided themselves into two classes ; the owners of the small flats and the owners of big flats. The owners of small flats went to pay on per sq.ft. basis . The owners of big flats went to pay equally with the small flat owners and a dispute cropped up as to the process of making payment. The OP has no deficiency in service and the Forum be pleased to decide as to basis of payment of essential common service on the basis of per sq.ft or on the basis of number of flats,he comply that direction.
In view of the above facts the only point to be considered is whether there was any deficiency in service on the part of the Op for rendering amenities and facilities of the said apartment to the flat owners as per clause F of the agreement of the Conveyance deed.
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FINDINGS WITH REASONS:
The learned lawyer of the complainant has argued that the agreement contents that each of the flat owners shall pay the proportionate service charge as per sq.ft. they are possessing . The OP has claimed that the flat owners make payment of the service charges as per their Unit of sq.ft. in possession. According to the agreement there is no dispute as to that matter.
The learned Advocate of the Op has argued that it was in the agreement that the flat owners would form an Association who would /will look into the matter of the flats for the common purpose. That Association would be formed within six months from the delivery of all the flats . Three flats remains vacant till the date. In a meeting held in 2002 the flat owners agreed to give charge 60 paisa per sq.ft. He has further argued that the flat owners continue to pay the service charges at the same rate of 60 paisa per sq.ft and a direction may be given for forming the association within three or four months by the flat owners.
The Xerox copy of notice filed by the OP reflects that on 24.11.2002 at the first floor at 11.0 a.m. a notice was served upon the flat owners for formation of Association of flat owners and the resolution of that meeting reflects that Shyama Prasad Mukherejee became the Chairman of the said meeting and a committee comprising of Sri Indrajit Chakraborty, President, Sri Dilip Barai, Secretary and other seven persons became the committee members .
The Xerox copy of the proceedings of a meeting held on 22.12.2002 at 3.0 p.m. reflects that 19 flat owners who remain present in that meeting took a resolution “it was decided that the expression “Flat Owners Committee” should be used by M/s Dreamland Construction (Pvt.) Ltd. in lieu of Flat Owners Association in all correspondence and paper to avoid any misunderstanding whatsoever.The Xerox copy of the resolution of the meeting held on 7.9.2003 in presence of Sri Dilip Barai and 16 others it disclosed that some members namely Mr.M.K.Daga and Ors proposed for levying equal service charges and “after some arguments on this matter , some members went away . However, at the end of the meeting in the presence of a few member most among them being the committee members, on the basis of present monthly bill of expenditure which is about approx Rs.12,000/- per month it was decided that each member would pay Rs.300/- per month”.
The Xerox copy of the minutes of the meeting held on 30.11.2003 divulges that Smt.S.Dirghangi, Sri Samir Chatterjee and 24 Ors remain present and the meeting was presided over by Mr.Indrajit Chakraborty wherein it was discussed as to the withdrawal of the outside guard and also the process of making payment to the outside guard.
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The copy of proceeding of a meeting held on 31.7.2004 in presence of Chairman, Rishra Municipality divulges that the Chairman requested the flat owners to form the association at the earliest.
The general meeting of the flat owners held on 29.8.2004 transpires that “the meeting requested all Members to continue payment of their monthly dues as usual and also clear their past dues immediately”.
The Xerox copy of the letter issued by Naresh Daga , flat no.3D, Jhantu De, flat no.3 C and 10 others intimated the Director, Dreamland Construction Pvt.Ltd. “as after a committee of flat owners took over the management of the flat complex from you about three and a half years ago, a dispute arose between the bigger and smaller flat owners over payment and monthly charges to meet the expenses for maintenance and various services in the flat complex. While the smaller flat owners wanted all expenses to share as Sq.ft. rate as per the flat size, the bigger flat owners demanded that the cost , maintenance of the complex be shared as sq.ft. rate but the cost of various common services which are commonly used by all the flat owners without any restriction irrespective of flat size should share equally by all flat owners.”
The abovecited resulations clearly transpires that the flat owners formed a committee among themselves for managing the expenses of the apartment for cleaning and guarding the same. Besides with the intervention of the Chairman, Rishra Municipality, in a meeting it was requested to the flat owners to form an Association for managing the expenses as enumerated in the agreement for the flats.
The letter dated 27.2.2006 written by Naresh Daga, flat no.3D, Jhantu De, flat no3C and 10 others transpires that in a meeting the flat owners make division among themselves as small flat owners and big flat owners and they failed to come into definite conclusion as to raising the fund for maintenance of the flats namely sanitation, guard, electricity etc.
The above Resulations further reveal that the owners of the flat themselves failed to make any Association among themselves as per the terms and conditions for maintaining of the flats.
In view of the above aspect we find no deficiency in service of the Op as alleged.
The submission of the learned lawyer of the Op that a direction may be given to the flat owners for forming the Association . In our considered view , this Forum suffers lack of jurisdiction as to giving such type of direction pursuant to Section 14 of this Act.
It has further argued by the learned lawyer of the OP that the flat owners are paying 60 paisa per sq.ft. and an order be issued directing on the flat owners for making payment at the same rate.
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The prayer of the complainant does not concede with the prayer for continuing to make payment at the rate of 60 paisa. Hence, we pass no order as to this point.
We have already decided that we find no deficiency in service on the part of the Op . Thus the case of the complainant fails to succeed.
Hence ordered
That the instant case is dismissed on contest without any cost.
Hand over a copy of this order to the parties free of cost.
The case is disposed of beyond the statutory period as the post of President
remain vacant for a considerable period.
Dictated and corrected by me
President Member President