-DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _50_ OF ___2016_
DATE OF FILING : 31.5.2016 DATE OF PASSING JUDGEMENT: 8/08/2017
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Prabir Kumar Guha, son of late Parimal Kumar Guha of Swastik, Ananda Pally, Mahamayatala, P.S Sonarpur, Pin-700 084.
-VERSUS -
O.P/O.Ps : 1. M/s Uma Associates, 1/16A, Prince Golam Md. Shah Road, Kolkata-95.
2. Sri Subrata Gupta, Proprietor of M/s Uma Associates,s/o late Susanta Gupta of 51/2D, South Road, Santoshpur, near Trikon Park, Kolkata-75.
3. Smt. Manju Naskar, wife of late Balai Chandra Naskar
4. Sri Somenath Nskar, son of late Balai Chandra Naskar
Both of South Ghosh Para, P.O & P.S Sonarpur, Dist. South 24-Parganas,
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short case of the complainant is that he has already purchased a flat from the developer’s allocation and paid entire consideration money of Rs.8,50,000/- from time to time and the flat was purchased in terms of the development agreement dated 5th May,2009 with the land owner/O.P nos. 2 and 3. It has further stated that the land owner also had given registered power of attorney to the developer and developer proceeded for construction in terms of the building Plan no.152/PB/08/17 dated 28.7.2011 consisting of two blocks namely A and B approved and sanctioned by the Rajpur Sonarpur Municipality. The complainant purchased the flat measuring 790 sq.ft super built up area on second floor Block B and the developer issued possession letter on 19.10.2014 and after taking possession fo the said flat without completion certificate of the municipality the complainant has noticed that flat is not in habitable condition inasmuch as roof treatment has not yet been done, as a result of which rain water has been leaking outside the wall. The same was not quoted with prime and even without colouring, boundary wall has not been done, no proper passage for ingress and egress, no earthing has been made in connection with the electricity, for which, complainant is debarred from mutating his name in the municipality records. It has claimed that the leakage of rain water caused due to damage inside plastering and as a result outside iron rod has been exposed threatening early decay of the flat, for which, complainant and other flat owners repaired the same with the money of Rs.1 lac, particularly when the developer did not pay any heed to it. Hence, the complaint case with a prayer to construct boundary wall, to provide passage for ingress and egress as provide in the sanctioned plan, the cost of plastering in both inside and outside the flat and colouring, provide earthling to prevent damage of the building as well as to provide completion certificate and Rs.1lc towards repairing charges spent by the complainant with other flat owners , compensation of Rs.10 lacs, litigation cost Rs.20,000/- and other reliefs.
The O.P-1 and 2 ,the developers are not contesting the case .
O.P nos. 3 and 4 are contesting the case by filing written version and they claim that the case is not maintainable in its present forms and the allegation is motivated and harassing one and no cause of action arises. The answering O.Ps denied and disputed each and every allegations and/or contentions narrated in the said applications save and except which are specifically admitted herein and complainant has to put to the strict legal proof to prove the allegation. It has claimed that O.P-1 did not deliver possession of the owner’s allocation even in the said building violating the terms of the development agreement. It has also claimed that violating the development agreement dated 5.5.2009 developer,O.P-1, executed and registered several flats in favour of the purchaser without delivery of possession of the owners’ allocation which is mandatory in terms of the development agreement, for which, the land owners already revoked the registered general power of attorney dated2.4.2009 and cancelled and rescind the development agreement and published the same in the daily Bartaman paper on 25.11.2014 and also cancelled or rescind the development agreement dated 5.5.2009 by letter dated 12.8.2015 and took possession of the Schedule A property and three numbers of flats out of 12 number of flats in the building being Block no.B. Accordingly complaint is liable to be dismissed on the basis of the documents relied in Annexure A,B,C,D,E and F.
It should be mentioned her that against the O.P-1 and 2 the notice has been published in the daily newspaper but inspite of that they did not turn up for which case is running in exparte against O.P nos. 1 and 2.
Points for decision in this case is whether the O.Ps acted any deficiency of service or unfair trade practice towards the complainant or not.
Points for decision
Admittedly there was a development agreement by and between the O.P nos.3 and 4 as land owners and developer O.P nos. 1 and 2 and in terms of the said development agreement, complainant purchased one flat measuring 790 sq.ft super built up area situated in the second floor of Block B at a consideration of Rs.8,50,000/- and developer issued possession letter on 19.10.2014 to the complainant and possession was delivered in favour of the complainant as described in schedule B of the complaint petition. The development agreement was cancelled on 12.8.2015 by the land owners O.P nos. 3 and 4. So, it can be safely presumed that developer had power to deliver the same ,whether in terms of the development agreement not legal, which is matter of record, since land owner O.P nos. 3 and 4 did not file any separate complaint against the developer on a ground that without delivering possession of the land owners developer used to hand over the possession of the flats to the other intending purchasers including the complainant. So, it can be safely presumed that complainant impliedly has given consent but when the dispute was started between the land owner and the developer, the land owner cancelled the power of attorney by executing another deed of revocation. At this juncture a judgment of the Hon’ble National Commission is attractive ,wherein Hon’ble Apex Court has observed that an inter-se dispute between the land owners and the builders cannot be permitted to be used as a ploy to wriggle out of obligation under agreement and leave buyer in lurch.
Here, in the instant case identical case has already happened due to the dispute between the land owners and the developer. However, we hold that the complainant has right to redress before this Bench. Objection of the land owner as unfolded has no leg to stand upon. Thus the complaint case is maintainable.
Now, the question is whether the complainant will get the remedies claimed. It should be mentioned here that developer is no contesting the case ,but the land owners, O.P nos. 3 and 4, have filed a written objection, copy served to the Ld. Advocate of the complainant, wherein it has been specifically mentioned in para 3 that land owners who are in legal possession of the land denies and disputes each and every allegations and/or contention narrated in the said application save and except those which are specifically admitted herein and the complainant has to put to the strict legal proof to prove the allegation. We are aware that the allegation of the complainant is that construction of boundary wall, providing passage of ingress and egress as provided in the sanctioned plan, plastering both inside and outside wall and colouring, proper earthling to prevent damage of the building and completion certificate have not been provided.
But it is unfortunate to point out that complainant only mentioned the said allegations in their written complaint, but no step is taken to prove the same, when the land owners raised objection on the said allegations, by filing one separate petition for appointment of Building Expert to show that said works as claimed by the complainant in para 7 of the complaint petition have not been done. Moreover, the amount of Rs.1 lac was paid by the complainant and other owners for repairing the same and whether any outside iron rod has been exposed threatening early decay of the flat, all these allegations are required to be examined by an independent Building Expert, particularly when it has not been admitted by the O.P nos. 3 and 4 , the contesting O.Ps being land owners in whose possession, after cancellation of the development agreement and power of attorney, the building is now exist ,for which the said prayer cannot be considered by this bench due to fault of the complainant by not proving the same in light of the observation made in above.
Apart from that it is well-known to us that from the complaint application as well as the written version of the land owners we find that many flats have already been handed over and deed of conveyances have also been registered by the O.Ps and they did not come to this bench for pointing out such dispute. Moreover, if there is no ingress and egress how the purchaser is entering the flat. All these things are really unfortunate. It is true that until and unless completion certificate is provided, mutation of the flat cannot be possible and complainant has admitted that he is unable to mutate the said flat and we are aware that nowadays completion certificate is required for mutation of the flat and for this reasons for registration of the flat and for completion certificate practically this case has been filed and somehow exaggerated including some allegations ,that is why, complainant did not take any steps to prove the same.
With that observation we find that there is deficiency of service on the part of the O.Ps, specially the developer for not handing over completion certificate and for not taking initiative for registration of the said flat.
With that observation it is,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed in part on contest against O.P nos.3 and 4 and in exparte against O.P nos. 1 and 2.
The O.P nos. 1 and 2 are hereby directed to provide completion certificate to the complainant wherein necessary cooperation which are required by the land owner O.P nos.3 and 4 must be given by them and the said completion certificate is tobe handed over to the complainant within 60 days from the date of this order.
The O.P nos. 3 and 4 , the land owners, are hereby directed to execute and register the deed of conveyance of the said flat, as they cannot shut their liabilities on the ground of cancellation of development agreement and they are still binding to register the same , within 45 days from the date of this order, failing which compensation of Rs.1 lac each has to be paid by the O.P nos.3 and 4 in toal Rs.2 lacs .
The O.P nos. 1 and 2 are directed to pay compensation of Rs.1 lac to the complainant within 45 days from the date of this order.
The litigation cost is assessed at Rs.10,000/- to be borne by all the O.Ps jointly and/or severally within 45 days from the date of this order.
The other prayers of the complainant is not accepted in light of the observation made in above and the same is rejected.
If the O.Ps failed to comply the above orders in toto ,then the complainant is at liberty to execute the order through the executing bench and in that event Ld. Advocate Commissioner will be appointed ,of course on the prayer of the complainant, to execute and register the deed of conveyance in favour of the complainant in terms of the agreement for sale.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the application under section 12 of the C.P Act, 1986 is allowed in part on contest against O.P nos.3 and 4 and in exparte against O.P nos. 1 and 2.
The O.P nos. 1 and 2 are hereby directed to provide completion certificate to the complainant wherein necessary cooperation which are required by the land owner O.P nos.3 and 4 must be given by them and the said completion certificate is tobe handed over to the complainant within 60 days from the date of this order.
The O.P nos. 3 and 4 , the land owners, are hereby directed to execute and register the deed of conveyance of the said flat, as they cannot shut their liabilities on the ground of cancellation of development agreement and they are still binding to register the same , within 45 days from the date of this order, failing which compensation of Rs.1 lac each has to be paid by the O.P nos.3 and 4 in toal Rs.2 lacs .
The O.P nos. 1 and 2 are directed to pay compensation of Rs.1 lac to the complainant within 45 days from the date of this order.
The litigation cost is assessed at Rs.10,000/- to be borne by all the O.Ps jointly and/or severally within 45 days from the date of this order.
The other prayers of the complainant is not accepted in light of the observation made in above and the same is rejected.
If the O.Ps failed to comply the above orders in toto ,then the complainant is at liberty to execute the order through the executing bench and in that event Ld. Advocate Commissioner will be appointed ,of course on the prayer of the complainant, to execute and register the deed of conveyance in favour of the complainant in terms of the agreement for sale.
Let a plain copy of this order be served upon the complainant free of cost and one copy be sent to the O.P through speed post.
Member Member President
