West Bengal

Paschim Midnapore

CC/162/2014

T.Ram.Chandran - Complainant(s)

Versus

D.Mohan Rao - Opp.Party(s)

31 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

 

 Complaint case No.162/2014                                                                                           Date of disposal:  31/03/2015                               

 BEFORE : THE HON’BLE PRESIDENT :  Mr. Sujit Kumar Das.

                                                      MEMBER :  Mrs. Debi Sengupta.

                                                      MEMBER :  XXXXXXXXXXX

  

 For the Complainant/Petitioner/Plaintiff : Mr. T. Adhya, Advocate.

 For the Defendant/O.P.S.                       : Mr. K. Chattapadhyay, Advocate.                                   

          

 T. Ram Chandran, S/o Late T. Janardhan, C/o Suman Roy, Near Milan Mandir Club (Kharida),

 P.O. Kharagpur, P.S. Kharagpur (Town), Dist. Paschim Medinipur…………..Complainant

                                                           Vs.

1)D. Mohan Rao, S/o Late D. Shreehari.

2)Smt. D. Sharda Devi, W/o D. Mohan Rao, resident of 1194 B/143, Ward No.10, Kharagpur Municipality, Dhekia, Malancha Road, P.O. Nimpura, P.S. Kharagpur (Town),  Dist. Paschim Medinipur, PIN.721304.

                                    Present Address

Financial Consultance, 1018 A Barbatti, Kharida, Main Road, In front of DIG Office, P.O. Kharagpur, P.S. Kharagpur (Town), Dist. Paschim Medinipur, PIN.721301..……………Ops.

         The case of the complainant T. Ram Chandran, in short, is that a sum or Rs.5,00,000/- and Rs.9,00,000/- were paid on 02/08/2014 and 02/09/2014 respectively in favour of the OP against money receipts as per payment on account of Flat No.4 measuring 1110 sq. ft. in the 2^nd Floor with of parking space and common areas in the Sree Hari Presidency at a consideration of Rs.27,00,000/-and agreement to that effect was executed by the OP.  It was agreed by him that upon payment of the consideration money by the complainant, the OP shall handover Building Completion Certificate/Occupancy Certificate in respect of the said Flat.  It is alleged by the complainant that despite repeated request, the OP does not supply the said certificate.   Ultimately, Advocate’s notice dated 14/11/2014 was served upon the OP demanding the said documents and to execute sale deed upon receipt of balance amount or refund the part payment of Rs.14,00,000/-.  But the OP refused to do so and trying to sell out the said flat to outsider on due advertisement.  Eventually, the

Contd………………P/2

 

- ( 2 ) -

 

complainant came to know by RTI  report that no such certificate has still been issued by the Kharagpur Municipality.  Under the circumstances, the complainant has come before us with the prayer for direction upon the OP to refund of initial amount Rs.14,00 000/- with 12% interest on to execute sale deed on receipt of balance amount of consideration money of the said flat and for compensation of Rs.1,00,000/- with litigation cost of Rs.10,000/-. In this connection, copies of RTI report dated 08/11/2014, payment receipt No.221 dated 02/08/2014 and 223 dated 02/09/2014, agreement dated 06/08/2014 and Advocate’s Letter dated 14/11/2014.       

         The Op contested the case by filling written objection challenging that the case is not maintainable for want of cause of action as the OP was ready to handover the flat by 5^th February 2015.  According to the agreement, the complainant is liable to pay 15% of the total amount of the dues as liquidated damage for delay of complete payment and the OP is entitled to cancel the booking and to refund the booking money after deduction of 15 % thereof.  The OP further states in his case that in spite of repeated request the complainant failed to pay balance amount for Registration of Sale deed.  Rather, the complainant misbehaved with the OP who informed to him that the certificate in question will be issued by the Municipality. Only the OP can issue Possession Certificate upon key of the flat.  Thus, there is no deficiency of service on the part of the OP and as such the case should be dismissed.              

          Upon the case of both parties the following issues are framed.

Issues:

1)Whether the case is maintainable in its present from?

2)Whether the complainant has any cause of action for presentation of this petition of complaint?

3)Whether the complainant is entitled for getting relief as prayed for.?

 

Decision with reasons

Issue Nos.1 to 3:

              All the issues are taken up together for discussion as those are interlinked each other for the purpose of arriving at a correct decision in the dispute.

              Ld. Advocate for the complainant made his argument that the pert payment of Rs.14,00,000/- has already been paid by the complainant in favour of the OP who thereupon executed an agreement for sale dated 06/08/2014.  But the Registration of sale deed upon due supply of Completion Certificate and acceptance of balance amount towards the total consideration for the flat is not being done by the OP.  In this connection, Ld. Advocate for the complainant has referred to the relevant provisions of The West Bengal Municipal Act 1993 and

Contd………………P/3

 

- ( 3 ) -

 

 explained that no person can occupy or use any flat until necessary permission granted by the Municipal Authority in accordance with its rules and regulations as applicable in this behalf.  The OP hereof has not taken any steps in terms of Section 212 of the said Act for the purpose of collection of Completion Certificate from the said Authority. In order to prove the conduct of the OP, the RTI report collected by the complainant is produced before the Forum.  So, for want of statutory requirement, the complainant cannot take delivery of possession of the flat in question upon payment of balance amount of the consideration money.  Since, it is the duty of the OP for supply of Completion Certificate before Registration of the sale deed and the OP fails to supply the same, it is fair and reasonable for the Ld. Forum to hold that the OP is liable for deficiency of service as alleged.

             Objection raised by the Ld. Advocate for the OP through his argument that the complainant already failed to make complete payment within the stipulated period as formulated in the agreement for sale dated 06/08/2014 even after completion of the flat.  The complainant, rather, managed to justify the delay in making payment of balance amount of consideration money motivatedly on the plea of Completion Certificate.  Ld. Advocate further pointed out that issue of Completion Certificate is not subject of the OP/Developer but of the Municipal Authority.  The OP already applied for collection the Completion Certificate.  Pending this certificate, other purchasers have already taken delivery of possession of 32 flats.  So, the complainant has no valid ground for raising the allegation of deficiency in service against the OP/Developer.  Thus, the case should be dismissed.

                  We have carefully considered the case together with the submission of Ld. Advocates appearing for the respective parties and the documentary evidence on record.  It appears that Booking money amounting to Rs.14,00,000/-  was paid in two phases on 02/08/2014 & 02/09/2014 in favour of the OP who, amidst the said payment,  has executed an agreement for sale dated 06/08/2014.  But only question is that, the execution and registration of the sale deed with delivery of the flat in question even upon its completion is still not in progress.  The substantial reason for disagreeing for purchase of the flat as exclaimed by the complainant appears to be the non-delivery of Completion Certificate in respect of the said flat.  For this reason, the Completion Certificate as formulated by Municipal Laws is basically a statutory requirement.  So, there is no otherwise avenue to bye pass or violet the said statutory requirement for the purpose of allowing the parties for transaction of the said flat.  Here in this case, the dispute stands on a very small and vital issue of availability of Completion Certificate which ultimately leads and directs the particularity and specific decision in the glaring dispute raised in the case. Vocabularily to speak that if the Completion Certificate remains to exist, transfer of the flat is statutorily permissible.  In this matter,

Contd………………P/4

 

- ( 4 ) -

 

 it is of the volition of the complainant who may wait and go on passive insisting to the OP keeping him into an obligation for delivery of  Completion Certificate as for the OP is not for the time being the authority to issue Completion Certificate but to take necessary steps for procurement of the same procedurally before the appropriate authority.  Thus, we have sufficient ground to urge the OP to take necessary steps in terms of provisions of the Municipal Act in the matter of collection of Completion Certificate as early as possible.

              In view of the observation made above, we may constitute our opinion to suggest that the

 parties are to render necessary cooperation each other for the purpose of materialization of the transaction of the Flat in question upon the Completion Certificate and payment of balance amount within 3 (Three) months without prejudice to the rights and contention of the parties in this behalf.

             Under the facts and circumstances, all the issues are disposed of accordingly.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                          

             Hence,

                           It is Ordered,    

                                                 that the case be and the same is allowed on contest without cost in terms of giving the direction to the OP who shall execute and register a sale deed in respect of the flat in question in favour of the complainant upon due service of the copy of Completion Certificate and by receiving balance amount towards the consideration money thereof without any interest for the incidental delay within three (3) months from this date of order, in default, the complainant is entitled to get refund of entire money with 9% interest payable by the OP.

                 The parties shall extend their respective cooperation each other without prejudice.

Dictated & Corrected by me

              

         President                          Member                                    Member                             President

                                                                                                                                           District Forum

                                                                                                                                      Paschim Medinipur.