DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR,
KOLKATA-700 0144
C.C. CASE NO. __167_ _ OF ___2015
DATE OF FILING : 6.4.2015 DATE OF PASSING JUDGEMENT:20 .2.2019
Present : President : Ananta Kumar Kapri
Member(s) : Jhunu Prasad
COMPLAINANT : Prithwish Ranjan Ghosh, son of late Bhupen Chandra Ghosh ,P-23, Paschim Barisha Brojomoni Debya Road, P.S Thakurpukur, Kolkata-61.
O.P/O.Ps : 1. The Deputy Assessor Collector, Kolkata Municipal Corporation (S.S.Unit), 1 No. Diamond Harbour road, Kolkata-38.
2. The Assessor Collector, Kolkata Municipal Corporation, 5, S.N. Banerjee Road, Kolkata-13.
3. M/s S.P Construction, represented by
a. Sri Swapan Majumder, son of lateNani Gopal Majumder of P-3, Brojomoni Debya Road, P.S Thakurpukur, Kolkata-61.
b. Sri Paban Kumar Dutta ,son of late Monoranjan Dutta of P-69, Brojomani Debya Road, Kolkata-61.
4. Smt. Minati Ghosh, wife of late Nalini Ranjan Ghosh
5. Sri Deepanjan Ghosh, son of late Nalini Ranjan Ghosh
Both of Elina Apartment, Flat no.A-1, First Floor, Vivekananda Road, Sreepally, Palta, P.O Bengal Enamel, P.S Noapara, Pin-743122.
6. Smt. Ratna Das, wife of Sri Sibapada Das, daughter of late Bhupesh Chandra ghosh of 197/B, Beni Master Lane, Tentultala, P.O Sarsuna, P.S parnasree, Kolkata-61.
7. Smt. Archana Bhowmick, wife of late Himadri Sekhar Bhowmick, daughter of late Bhupesh Chandra Ghosh of 51, Haridas Dawn Road, P.S Behala, Kolkata-53.
8. Smt. Ananya Guha, wife of Sri Ranjit Guha ,daughter of late Bhupesh Chandra Ghosh of 6A, Chandranath Simlai Lane, P.S Chitpur, Kolkata-2.
9. Smt. Ranjana Sarkar, wife of Sri Bimal Sarkar ,daughter of Bhupesh Chandra Ghosh of village-Sreenagar, P.O Ichhapur, Nawabganj, Dist. North 24-Parganas.
10. Smt. Santana Sarkar, wife of Sri Goutam Sarkar, daughter of late Bhupesh Chandra Ghosh of 11C, Sahid Dinesh Gupta Road, P.S Behala, Kolkata-34.
__________________________________________________________________
J U D G M E N T
Sri Ananta kapri, President
Alleging deficiency in service on the part of the O.P/developer for not delivering the completion certificate of his flat to him ,the instant case has been filed under section 12, C.P Act, 1986 by the complainant.
The facts leading to the filing of the instant case may be epitomized as follows.
The complainant and the O.p nos. 4 to 11 are absolute owners of the property ,succinctly described in Schedule to the complaint. They entrusted the O.P-3 with the task of constructing a G+4 storied building on it after having complied with all due formalities. Building was constructed and the same was completed also by O.P-3 . Owner’s allocation was delivered in terms of the development agreement. Complainant has got possession of a flat on the first floor described succinctly in schedule to the complaint and his co-owners have also gifted that flat to him by registered gift deed. But , completion certificate is yet to be given to the complainant by the O.P no.3 even after constant persuasions. O.P nos. 1 and 2 have not also mutated the flat in the name of the complainant and, therefore, the complainant has filed the instant case ,praying for passing an order directing delivery of completion certificate , mutation and payment of compensation etc. . Hence, this case.
The O.P nos. 1 and 2 have filed a written statement ,wherein it is stated by them that mutation application was received on 14.3.2014 and mutation was done on 6.5.2015 in favour of the complainant. There is no deficiency in service on their part. The complaint is frivolous and speculative and ,therefore, it should be dismissed in limini.
The O.p-3 has also filed written statement ,wherein it is contended by him that he has no liability nor any obligation to hand over completion certificate to the complainant, because there is no such provision in the development agreement.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.P nos. 1 and 2 guilty of deficiency in service for not causing mutation of the flat in favour of the complainant?
- Is the O.P-3 guilty of deficiency in service for not delivering the completion certificate to the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
EVIDENCE OF THE PARTIES
Evidence on affidavit is led by the complainant, O.P nos. 1 and 2 and O.p-3. BNA filed by the O.p-1 is kept in the record.
DECISION WITH REASONS
Point no.1 , 2& 3 :
After filing of the instant case , O.P nos. 1 and 2 have caused mutation of the subject flat in favour of the complainant and this is also admitted by the complainant. So, taking into consideration the changed circumstances, we feel constrained to say that there is no deficiency in service on the part of the O.P nos. 1 and 2 and, therefore, the instant case should be dismissed against them.
The only grievance of the complainant which requires determination now is whether the developer i.eO.P-3 is bound to hand over the completion certificate to the complainant. It is the case of the O.P-3 developer that there is no provision in the development agreement requiring him to deliver completion certificate and, therefore, he is not under any obligation to deliver such certificate to the complainant . The fact remains that the completion certificate has not been delivered to the complainant by O.P-3. It is also the fact that there is no provision in the development agreement which requires the developer to supply completion certificate.
In the circumstances, it is to be seen whether the O.P-3 is bound to hand over completion certificate to the complainant.
In Faquir Chand Gulti Vs. Uppal Agency Pvt. Ltd. reported in (2008)10 SCC 345, there was a provision in the agreement that the developer would apply for completion certificate after the construction of the building was completed. The developer also applied for such certificate and thereafter did nothing more. When the complainant of that case demanded completion certificate from the developer, the developer pleaded that he had no obligation in terms of the agreement to hand over completion certificate to the complainant. In this regard, the observation of the Hon’ble Apex Court appears to be very pertinent. It was observed by the Hon’ble Apex Court therein that under the agreement, the builder is required to construct the flat in accordance with the sanctioned plan, specifications and terms of agreement reached between the owner and the developer. If the construction is part of a building, which in law requires a completion certificate, the builder is bound to provide the completion certificate ,nor can the builder contend that he is not bound to produce the completion certificate but only bound to apply for it. The obligation of a builder to secure a sanctioned plan and construct a building carries with it an implied obligation to comply with the requirement on Municipal and Building Laws and secure the mandatory permission/certificate.
In view of the law, as discussed above, and taking into consideration the facts and circumstances of the case, we are also inclined to say that the developer i.eO.P-3 will have to hand over completion certificate to the complainant. He cannot shirk off this implied obligation of him. The complainant is entitled to get the relief accordingly.
In the result, the case succeeds .
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P-3 with a cost of Rs.10,000/- and dismissed on contest against O.P nos. 1 and 2 and also dismissed exparte against the rest of the O.Ps without any cost.
The O.P-3 is directed to hand over the completion certificate of the building to the complainant within two months of this order ,failing which, the O.p-3 will have to pay a sum of Rs.5 lac as compensation to the complainant.
Let a free plain copy of this order be given to the parties concerned at once.
President
I / We agree
Member
Dictated and corrected by me
President
