Hon’ble Mrs. Dipa Sen (Maity), Presiding Member
The instant complaint petition has been filed by the Complainant Dr. Prabal Pal against the Developer alleging deficiency in service in relation to housing construction.
The brief facts as set out in the complaint are that being an intending purchaser the Complainant has entered into an agreement for sale on 20th September, 2014 with the Opposite Party Sri Ashru Kumar Sinha, the sole owner of the land who carrying on business under the name and style M/s. Swabhumi Housing, construction company. The Complainant has booked one-self contained residential flat in an upcoming G+3 multi storied residential project “Swabhumi Housing” on the 1st floor being Flat No. B1 for a super built up area 1013 sq. ft. at an agreed consideration amount of Rs.30,00,000/- (Rupees Thirty lakhs) only along with a covered car parking space measuring 135 sq. ft. on the ground floor. Lying and situated at 504, Paresh Majumder Road, Kasba, within P.S-Kasba, now Garfa in Kolkata-700078. As per the said agreement for sale dated 20-09-2014 a Deed of conveyance was duly registered before the D.S.R, South 24 Pgs. Alipore on 19-01-2015. The said flat was handed over to the Complainant after registration on the very same day without given any proper and adequate opportunity to the Complainant for inspection of the flat prior to registration. That after taking possession of the flat the Complainant found that there are some defects which are required to be removed for enjoying the said flat in habitable condition. The completion certificate/occupancy certificate of the said flat was not handed over to the Complainant. No specific demarcated car parking space has been allotted to him as there are shortage of car parking spaces. In spite of several requests of the Complainant the Opposite Party did not hand over Completion Certificate/Occupation Certificate to the Complainant not even removed the defects of the subject flat. Moreover, there are severe water leakage/ seepage problems over the ceilings of the bathroom, dining hall and kitchen of the said flat. But in spite of several requests the O.P/Developer did not remove such defects of the subject flat. Without finding any other alternative the Complainant appeared before the Central Consumer Grievance Cell, Consumer Affairs Department, Govt. of W.B but no fruitful result has been came out to resolve the dispute between the parties and the Complainant was compelled to lodge a complaint before this Commission with the prayer for getting a direction upon the Opposite Party/Developer for removal of defects from the subject flat and to provide completion certificate and occupancy certificate of the said flat along with prayer for litigation cost and compensation for his harassment.
On the other hand no W/V has been filed the Opposite Party No.1 and ultimately the case was fixed for ex-parte hearing against Opposite Party No.1 on 15-12-2017 vide order No.3. Opposite Party No.1 has filed questionnaire only to test the veracity of the statement of the complaint.
O.P No.2 filed W/V but did not file any evidence on affidavit, questionnaire or reply in support of his case. Evidence on affidavit was filed on behalf of the Complainant. The Complainant has attached several documents i.e. copy of sanctioned plan, agreement for sale dated 20-09-2014 and copy of Deed of Conveyance dated 19-01-2015 in support of his case.
Opposite Party No.s.1 remain absent at the time of final hearing.
Ld. Counsel appearing for the Complainant submitted that the Complainant has made payment of entire consideration amount of Rs.30,00,000/- (Rupees thirty Lakhs) to the Opposite Party No.1 Land Owner/Developer for flat No.B1 in Swabhumi Housing Project. After receiving the said amount a Deed of Conveyance dated 19-01-2015 was registered before the D.S.R, South 24 Pgs., Alipore in respect of the said subject flat. Ld. Counsel for the Complainant has further submitted that the possession of the aforesaid flat was handed over to the Complainant hurriedly without giving any opportunity to inspect the said flat for detecting whether any defects are lies inside the said flat. The Complainant found severe water leakage/seepage of water is continuing over the bathroom, dining hall and kitchen of the subject flat. Moreover, in spite of several demand no completion certificate and occupancy certificate of the said flat/building was handed over to the company. Paper relating to connection of sewerage which is very much required for proper maintenance of the flat/building was not handed over to the Complainant. No specified demarcated car parking space has been allotted for parking his car. Finding no other alternative the Complainant lodged complaint before the Central Consumer Grievance Cell, Consumer Affairs Department, Govt. of West Bengal. Accordingly, one tripartite meeting was held to settle the dispute between the parties but the same was failed and the Complainant was compelled to approach before this Commission. Ld. Counsel for the Complainant has further argued that in W/V of the Opposite Party No.2, the K.M.C has submitted that no application has been filed for obtaining completion certificate or occupancy certificate from the appropriate authority and for that reason no such certificate could have been provided in respect of the said premises.
The Ld. Counsel for the Complainant further argued that by adopting unfair trade practice the Opposite Parties deliberately depriving the Complainant from their lawful rights and claims in terms of the said agreement for sale and Deed of Conveyance. Complainant is entitled to get relief as contemplated in the Consumer Protection Act, 1986.
Having heard the Ld. Counsel for the Complainant and on careful perusal of materials on record it clearly appears that Complainant is consumers as defined U/s. 2(1)(d) of C.P Act, 1986 as the Complainant hired services relating to housing construction from the Opposite Party/Developer after making payment of Rs.30,00,000/-(Rupees Thirty Lakhs) as total consideration amount.
On perusal of materials on record it clearly appears to us that as per the direction of this Commission one Mr. K.S. Bhatia, Ld. Engineer Commissioner has submitted his report on 04-02-2019 wherefrom it appears that there was percolation of water from the ceiling of the dining hall in southern side of the flat of approx.2.5 sq.ft. as such the ceiling was damaged. Water marks were also found in ceiling of bedroom of south east side corner in an area of 0.5 sq. mtr.
Every person usually buys residential flat for taking lifelong shelter. In the present case the Deed of Conveyance of the subject flat was executed on 19-01-2015 and the Complainant was compelled to appear before this Commission with allegation if seepage, leakage from the roof/ceiling of bedroom, dining hall etc. within a very short period of time i.e. within the year of 2017.
It also appears from the scrutiny of materials of record that one Agreement for Sale was executed in between the parties on 20-09-2014 and as per the said Agreement the Complainant has made payment of entire consideration amount of Rs.30,00,000/-(Rs.Thirty Lakhs). After that one Deed of Conveyance also executed in respect of the subject flat on 19-01-2015. In spite of that no completion certificate was handed over to the Complainant.
Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance to a contract or otherwise in relation to any service is defined as “deficiency” U/s. 2(1)(g) of the Consumer Protection Act, 1986. In the present case in spite of expiry of several years Opposite Parties did not provide completion certificate which we consider serious deficiency in service for which the Complainant has to suffer a lot.
The Hon’ble Apex Court in a case Samruddhi Co-operative Housing Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. has already decided that it is the duty of the Developer to hand over the completion certificate and as the same was not handed over till date we can consider that the cause of action is still continuing as failure to obtain occupancy certificate is a breach of obligation.
In view of the above discussion, we are of the view that the Opposite No.1/Developer has deficiency in service as did not provide completion certificate which create immense harassment and mental agony to Complainant and did not repair the defective works of the subject flat which dragged the Complainant and compelled the Complainant to approach before this Commission.
Considering the facts and circumstances the instant case is hereby allowed contested against O.P No.2 with the following directions:-
- The Opposite Party No.1 is directed to repair the subject flat after removal of defects as per the Engineer’s Commissioner report and to obtain completion certificate from the concerned authority of Kolkata Municipal Corporation and to hand over the same within 90 days from the date of communication of this order.
- The Opposite Party No.1 is further directed to pay Rs.1,00,000/-(Rupees One Lakh) only as compensation to Complainants for their mental agony and harassment along with litigation cost of Rs.25,000/-(Rupees Twenty five thousand) only.
The above payment must be paid to Complainant within 90 days from the date of communication of this order.
The Complainant is at liberty to put the order into execution for non-compliance of the above order.
Office is directed to hand over a copy of this Judgment to the parties free of cost.
