DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

                                                                                 SOUTH 24-PARGANAES

                                                     AMANTRAN BAZAR, BARUIPUR, KOLKATA-700144

                                                                               C.C.NO. 208 of 2019

 

DATE OF FILING                                            DATE OF ADMISSION                      DATE OF FINAL ORDER

9/12/2019                                                                      19/12/2019                                                 28/4/2022

                                                             President   :       Hon’ble  Debashis Bandyopadhyaya

                                                             Member -  :        Hon’ble  Jagadish Chandra Barman

                                                             Member-            Hon’ble  Sangita Paul

 

                                                        Complainant:     - Arun Kumar Roy

                                                                 Son of Jiban Krishna Roy

                                                                 E-4, Indradhanu Apartment

                                                                53 H C Sarani

                                                                P. O.& P. S. –Sonarpur

                                                                 Kolkata-700150

 

                                                                           Versus

 

 

                                                         Opposite party-   1)   Subrata Nath

                                                         Son of late Birendra Kumar Nath

                                                         E-1, Indradhanu Apartment

                                                         53 H C Sarani

                                                         P. O.& P. S. –Sonarpur

                                                         Kolkata-700150

 

 

 

 

 

FINAL ORDER/JUDGEMENT

 

Sri Jagadish Chandra Barman, Member

 

The facts leading to the filing of the instant case by the complainant may be epitomized as follows:-

            This is a complaint case under Section 35 of the Consumer Protection Act 2019. The complainant, Sri Arun Kumar Roy, booked a flat of 793 sq. feet super built up area located under the Indradhanu Apartment , 4th floor south east  front side, in the ward no-13(12), holding no 53, H. C. Sarani, under Sonarpur police station, Rajpur-Sonarpur Municipality, Kolkata-700150 which is butted and bounded by:-

On the North :   house of Nath

On the South :-  part of Dr. Chittaranjan Mitra

On the East :-     H. C. Sarani [35 feet]

On the West: -   house of Sailen Das

                On 8/3/2009, the complainant made cash payment Rs. 1,50,000=00 only  and Rs. 2,00,000=00 only by means of  D. D., ICICI Bank vide no- 2706. He also paid  Rs. 3,15,150=00 only by D. D. Vide No- 793590 of UBI on 27/02/2012. Hence the complainant had paid Rs. 6, 65,150=00 only before signing the agreement for sale. The payment particulars are mentioned in page 19 of the Agreement for Sale. The flat consists of 2 bed rooms, 1 kitchen cum dining room, 2 toilets and 1 balcony. The total value was settled Rs. 8, 86,950=00 only.

             Accordingly, an Agreement for Sale was signed on 27th day February 2012 between the opposite party Mr. Subrata Nath for Friends Udyog Associates, here the Developer and the complainant, Mr. Arun Kumar Roy, as constitute Attorney of Smt. Kanan Bala Nath.

             As per para 8 of the Agreement for Sale, “the Dveloper shall complete  the entire construction and make the flat of the party /parties of the Purchasers ready for possession and shall give the physical possession of the flat within 30th April 2012 from the date of execution of this agreement and thereafter the parties of the Developer shall make Registration of the relative flat together with the undivided share  and interest of the demised land as well as common  rights and facilities in favor of the Purchasers subject to the payments…”

               The complainant paid remaining balance Rs. 2,21,800=00 only on 24/5/2013 vide  cheque no- 546990, U.B. I. /Kolkata. Particulars of full payment are clearly mentioned in page 21 of the DEED OF CONVEYANCE done on 24th day of May 2013 in favour of Sri Arun Kumar Roy and Smt. Sonali Roy, wife of Sri Arun Kumar Roy.

               The developer has issued Acceptance for possession letter on 24/5/2013 to the complainant and the complainant has taken over the possession of his flat as per statement mentioned in his prayer petition.

            As per statement and documentary evidence, the Complainant contacted to the opposite parties for several times for Completion Certificate. The Complainant also communicated with the opposite party by writing a letter on 13/11/2019 for Completion Certificate. But the O. Ps. did not pay any heed upon the anxiety, pension and agony of the Complainant. The opposite party did not procure the Completion Certificate from the appropriate Authority and hand over the same to the complainant till the date of submission of this instant case.

              Thereafter, the Complainant filed this instant case vide no- C.C.NO. 208 of 2019 before this Learned Commission on 9/12/2019. The case was provisionally admitted on   19/12/2019 and show cause notice was served to the O. P.. As per postal track report, notice was not served    satisfactorily. Hence he (complainant)   was directed to serve show cause notices again to the O. P. But show cause notice, as per postal track report, was again not served satisfactorily. Then, the complainant prayed for allowing him to publish the instant case in a renowned Bengali news paper.  The show cause notice was published in the daily newspaper ‘Bartaman’ on   13/11/2021   and copy is available in the office record. The opposite party was given an opportunity to file written version within or on 13/12/2021. But the O. P. neither appeared before the Ld. Commission nor filed the W. V. and the case has been Ex-party since then.

 The complainant has prayed for getting reliefs as below:-

To issue an order to provide ‘Completion Certificate’ to the complainant;

 To issue an order to pay arrear  maintenance charge Rs. 25,000=00 only and current monthly maintenance charge for his own flat located at 1st floor in the Indradhanu Apartment;

 To issue an order to refund the debt amount of  Rs. 1.5 lakh taken from the flat owners by the O. P. ;

 To issue an order to the O. P. to pay compensation amount Rs. …………for harassment, mental agony, pain etc. ;(not mentioned)

  To issue an order to pay litigation cost Rs. ……………;(not mentioned)

                 Hence, the content of the instant case is remained unchallenged and ‘Ex-party’hearing was heard on 9/3/2022. But due to some unavoidable circumstances, final order is delayed.

                   Upon the averments of the complaint petition, the following points are formulated:-

 

POINTS FOR DETERMINATION

1].    Is the complainant a consumer?

2]    Are the O. Ps.  guilty of deficiency of services and unfair trade practice as alleged by the complainant?

3]      Is the complainant entitled to get relief /relieves as prayed for?

 

EVIDENCE OF THE COMPLAINANT

 

              The complainant filed a petition on 19/01/2022    and requested the Ld. Commission to treat the complaint petition as evidence. His petition was considered and allowed.

 

DECICIONS WITH REASONS.

 

Point no. 1, 2, & 3.

 

               The complainant  paid on 8/3/2009 by cash  Rs. 1, 50,000=00 only and Rs. 2, 00,000=00 only by means of D. D., ICICI Bank vide no- 2706  and Rs. 3, 15,150=00 only by D. D. Vide No- 793590 of UBI on 27/02/2012. Hence the complainant had paid Rs. 6, 65,150=00 only. The payment particulars are mentioned in page 19 of the Agreement for Sale.

               The complainant paid remaining balance Rs. 2,21,800=00 only on 24/5/2013 vide  cheque no- 546990, U.B. I. /Kolkata. Particulars of full payment are clearly mentioned in page 21 of the DEED OF CONVEYANCE done on 24th day of May 2013 in favour of Sri Arun Kumar Roy and Smt. Sonali Roy, wife of Sri Arun Kumar Roy. Therefore, there is no doubt that the complainant is a Consumer under definition of Section 2 (7) of the Consumer Protection Act 2019.

        In relation to point for determination no 2 ‘’Are the O. Ps.  guilty of deficiency of services and unfair trade practice as alleged by the complainant?”, and point for determination no 3 “ Is the complainant entitled to get relief /relieves as prayed for? ”- it is relevant to say that in this instant case, the complainant had paid full consideration amount of Rs. 8, 86,950=.00 only as per terms and condition of the Agreement for Sale. But the O. P. did not take initiative to issue the Completion Certificate. However, the O. P. issued possession letter and physical possession of the said flat on 24/5/2013. The O. P.  also registered the DEED OF CONVEYANCE on 24/5/2013. But as per terms and conditions of the Agreement for Sale, it was the duty of the O. P./ Developer to hand over the possession and to register the Deed of Conveyance on/within 30/4/2012. The complainant did not pay the full amount within 30/4/2013 and therefore, the O. P. did not register the said flat within 30/4/2013.  The full payment was done   on 24/5/2013. Accordingly the said flat was registered on 24/5/2013. Therefore, deficiency of service and unfair trade practice are not occurred on the part of the O. P.. But Completion Certificate, which is a very essential document for the flat owners, is not issued till today.  Even after receiving the letter for demanding COMPLETION CERTIFICATE, dated 18/11/2019 from the petitioner, the O. P. did not response. The opposite did not take any step to collect Completion Certificate from the appropriate authority.

           Therefore, deficiency of service under Section 2(11) and unfair trade practice under Section 47 of the Consumer Protection Act have been occurred partly on behalf of the Opposite Parties.

          Hence, the O. P. is  liable to be penalized Rs.20, 000=00 only as litigation cost, Rs. 50,000=00 only as compensation amount to be paid to the complainant within 60 days from the date of issuing this order. Otherwise, 8% p. a. simple interest to be paid by the O. P. till to the realization. The opposite party  is liable to take initiative to get the COMMPLETION CERTIFICATE from the appropriate authority and hand over the same to the complainant within 60 days from the date of issuing this ORDER.

The complainant has mentioned as to arrear debt and maintenance charge of the O. P. but without any evidence. So no order is issued. 

     In the long run, the complaint case is succeeded. 

 

Hence, it is 

 

ORDERED

 

            That the complaint case be and the same is hereby allowed Ex-party against the opposite party with a cost of 20,000=00 (twenty thousand) only. 

           The opposite party is directed  to pay Rs. 50,000=00 (Rs. Fifty thousand) only as compensation amount for his  deficiency of service partly occurred under Section 2(11) and unfair trade practice partly occurred under Section 47 of the Consumer Protection Act 2019. Otherwise, 8% p. a. simple interest upon litigation cost and compensation amount to be paid by the O. P. till to the realization and it is from the date of issuing this Order.

             The opposite party is directed to take initiative to get the COMMPLETION CERTIFICATE from the appropriate authority and hand over the same to the complainant within 60 days from the date of issuing this ORDER. 

            The Complainant is at liberty to submit a Prosecution Case against the O. P.  before this Ld. Commission for non-compliance but after 60 days.

             Let copies of the order be supplied to all the parties concerned in either speed post /registered post free of cost as per rule.

 

            The final order be also available in www.confonet.nic.in  .

 

Dictated and Corrected by me.

 

 

  

( Jagadish Chandra Barman)                              

      (MEMBER)