DIST. CONSUMER  DISPUTES  REDRESSAL  FORUM

NORTH 24 Pgs., BARASAT.

C. C. NO- 651/2015

Date of Filing:                                       Date of Admission:                         Date of Disposal:

24.11.2015                                               30.11.2015                                     09.10.2018

Complainant :-              1.       Sri. Sisir Ranjan Chakraborty,

S/o Late Ananta Kumar Chakraborty,

Ground Floor, Holding no-21,

New Gostho Behari Colony,

Premises no-24/A, Barada Kanta Road,

P.S.-Dum Dum, Kolkata-700 074.

=Vs=

Opposite Parties :-        1.       M/s. Banerjee Construction,

Propreitorship Firm, 11, A.P.C. Avenue,

P.S.-Dum Dum, Kolkata-700 030,

Represented by-

Sri. Shymal Banerjee,

S/o Late Paritosh Banerjee,

11, A.P.C. Avenue, Purba Sinthee,

P.S.-Dum Dum, Kolkata-30.

                                                2.       Sri. Prabir Kumar Kar.

                                      3.       Sri. Pradip Kumar Kar,

S/o Late Mukul Bhusan Kar,

24/A, Barada Kanta Road,

P.S.-Dum Dum, Kolkata-700030.

P R E S E N T  :-        Sri. Bankim Chandra Chattopadhyay………..…..President.

  :-       Smt. Silpi Majumder  ……………………………………Member.

 Final Order

This complaint is filed by the Complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not execute and register the deed of conveyance in connection of the flat in favour of the Complainant till filing of this complaint.

The brief fact of the case of the Complainant is that he is the intending purchaser, the OP-1-developer and the OP-2 and 3 are the land owners. The Complainant being intended to purchase one self-contained flat measuring an area of 800 square feet including super built up area more or less approached before the OP-1 and accordingly both parties entered into an agreement for sale on 02.02.2011.

Cont……………….2

:2:

The questioned flat consists of two bed rooms, one kitchen, one toilet and one balcony together with undivided impartible proportionate share of land and along with all civic amenities and facilities. The cost of the said flat was settled at Rs.13,40,000/- i.e. Rs.1630/- per square feet. Out of the total consideration amount the Complainant paid a sum of Rs.12,00,000/- to the OP-1 and upon receipt of the said amount had delivered the possession in the said flat long ago and he is in occupation of  his flat and has been enjoying the same since delivery of possession without any interruption. After taking possession the Complainant requested the OP-1 for issuance of the possession certificate in his favour, but the OP-1 refused to issue any possession certificate. Thereafter the Complainant took physical measurement of the said flat through the planner and after perusing the measurement the Complainant got mental shock as the OP-1 inspite of receipt of the cost of 800 square feet delivered him only 685 square feet i.e. shortfall of 115 square feet super built up area which amounting to Rs.1,87,450/-. The OP-1 knowing very well the actual measurement received the excess amount. Be it mentioned that after taking financial assistance from the friends and relatives the Complainant purchased the flat, but since possession till date the OPs did not bother to take any step to execute and register the deed of conveyance in respect of the questioned flat in favour of the Complainant. On several occasions the Complainant requested the OPs for registration of the sale deed, but to no effect. Subsequently the Complainant served legal notice to the OPs requesting as earlier, but inspite of receipt of the notices the OPs did not take any step, even they did not bother to reply the said legal notice. The Op-1 also did not take any step to refund the excess amount as received from the Complainant. Since possession till date the market value of the flat has been increased, so the Complainant has to incur enhanced registration cost due to failure and negligence of the OPs. As the completion certificate has not yet been obtained by the OP-1 from the concerned Municipality, hence the same could not be delivered to him and for this reason the Complainant is not in a position to mutate his name in respect of the said flat in the record of the concerned Municipality and municipal tax became due, which also created financial burden on him.  As the OPs did not take any positive initiative for redressal of the grievance of the Complainant before coming to the Court of Law, hence finding no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs to execute and register the deed of conveyance in respect of the flat in favour of the Complainant, to pay Rs.1,00,000/- towards financial loss, Rs.10,000/- as compensation due to harassment and mental agony, to pay the excess amount of Rs.1,87,450/- and litigation cost of Rs.15,000/- to him.

The petition of complaint has been contested by the OP-1 by filing written version contending that considering the condition of the Complainant the OP-1 delivered the possession in the said flat, but as the Complainant did not pay the entire consideration amount, possession certificate could not be issued in his favour.

Cont……………….3

:3:

Before handing over the possession the Complainant took measurement of the said flat and being satisfied in all respect he expressed his willingness to get possession from the OP-1. Therefore at this juncture the Complainant has no right to raise dispute regarding measurement of the flat. The OP-1 has further stated that the OP-2 and 3 being the landowners never executed any register power of attorney in his favour, rather the land owners only gave him power of attorney so that the OP-1 can execute and register the deed of conveyance in favour of the intending purchasers. After getting the owner’s allocation the landowners refused to execute any register power of attorney in favour of the OP-1, for this reason the OP-1 is not in a position to make application for completion certificate before the concerned Municipality. As the landowners have refused to put any signature in the registration of the sale deed, hence the OP-1 could not take any step in this regard. As the OP-1 is always ready to register the sale deed in favour of the Complainant, hence there is no deficiency in service on behalf of this OP and therefore prayer is made by the OP-1 for dismissal of the complaint.

The OP-2 and 3 have contested the complaint by filing written version stating that as the OP-1 had failed to construct the construction of the building within the stipulated period, hence these OP2 has revoked the power of attorney executed in favour of the OP-1. The cost of the new power of attorney by the OP-2 in favour of the OP-1 is for Rs.60,000/-. The OP-2 is ready to give half of the amount, but the OP-1 has refused to pay the balance amount, for this reason power of attorney could not be executed, rather due to laches of the OP-1 earlier one has been revoked. For this reason registration of the sale deed in favour of the Complainant is not possible until the power of attorney become ready. So the responsibility casts on the shoulder of the OP-1 and the OP-3 is ready to put his signature for registration of the flat. As there is no deficiency in service on behalf of these OPs, hence the OPs have prayed for dismissal of the complaint with cost.

The Complainant, OP-1 and 3 have adduced respective evidences on affidavit. The Complainant has filed WNA.

Upon careful consideration of the record and documents as well as the pleading of both parties it is seen by us that during pendency of this complaint on 14.02.2017 deed of conveyance has already been executed in favour of the Complainant in respect of the said flat. The Complainant has also intimated that there is also no difference money for shot area as the OP-1 had already adjusted. Therefore now the dispute is only that the OP-1 did not provide the occupancy certificate and the completion certificate to the Complainant. Due to such non-supply of completion certificate the Complainant is not in a position to mutate his name in respect of the flat in the record of the concerned Municipality. In our considered opinion that though no such prayer is made in the prayer portion of the complaint, but as the Complainant has purchased the flat from the OP-1 by making

Cont……………….4

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payment of the entire consideration, the possession has already been delivered and registration of the sale deed executed, hence the OP-1 is legally under the obligation to provide the completion certificate to the Complainant in respect of the said building. Moreover very recently the Higher Forum/Commission has passed an order wherein it is observed that without the completion certificate possession in the flat/building cannot be provided. Therefore as to whether there is any specific prayer or not in this respect the OP-1 is legally bound to provide the completion certificate to the Complainant. When the OP-1 had delivered the possession in the said flat to the Complainant then what prevented him not to provide occupation certificate to the Complainant. As no specific prayer is made by the Complainant, inspite of this we are inclined to allow this prayer, hence we are not at one to impose any litigation cost compensation on the OPs.

Going by the foregoing discussion hence it is ordered that the complaint is allowed on contest in part without any cost. The OPs are directed to take step so that the Complainant can get the completion certificate in respect of the said building within 60 days from the date of passing of this judgment, in default the Complainant will be at liberty to put the decree in execution as per provision of law.      

Let plain copy of this order be given to the parties free of cost as per the CPR, 2005.

Member                                                                                                                          President

Dictated & Corrected by