District CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 PARGANAS, BARASAT.
C. C. CASE NO. 667/2014
Date of Filing: Date of Admission Date of Disposal:
09.12.2014 17.12.2014 29.05.2015
COMPLAINANT = Vs. = OPPOSITE PARTIES
Sri Manas Brahma 1. M/s Everest Construction
S/o. Lt. Makhanlal Brahma Sri Swapan Dutta
of “Makhan Lal Apartment”, S/o. Lt. Shudhangshu Dutta
Noapara Manasatala Road, Shalbagan, P.O.-Noapara
P.O. & P.S-Barasat, P.S.-Barasat,
Dist-North 24 Parganas, Nearby Swimming Pool,
Kolkata-700124. Govt. Colony,
Dist- North 24 Parganas.
2. Sri Parbir Dey
S/o. Lt. Netai Chandra Dey
Shalbagan, P.O.-Noapara
P.S.-Barasat,
Nearby Swimming Pool
Govt. Colony,
Dist- North 24 Parganas.
For Complainant : Sri Indranil Moulik, Advocate.
For Opposite Parties : Sri Tapan kr. Chakraborty, Advocate.
Sri Sankar Moni Dutta, Advocate.
P R E S E N T :- Smt. Bandana Roy President
:- Smt. Chandrima Chakraborty Member
:- Sri Rabideb Mukhopadhyay Member
J U D G E M E N T
Filtering out the unnecessary details in the complaint, the Complainant’s case may be summarized thus :-
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C. C. Case No. 667/2014
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In epigrammatic, the case stated in the complaint, is that, being the Owner in respect of ¼ share of the land, the Complainant entered into an Agreement upon mutual conveniences on certain terms and conditions for constructing a new building with the Opposite Parties. The construction of the building was completed in the year of 2008.
Another Agreement for Sale was executed between the Complainant and the Developers Opposite Party No. 1 & 2 for purchasing an adjacent flat of 100 sq. ft. area, being No. C 2 on the 2nd floor and also executed a Deed of Conveyance on 10.02.2009 and the actual possession of the said flat was also handed over to the Complainant, but Opposite Parties deliberately failed and neglected to deliver the ‘Possession Certificate’ and the ‘Completion Certificate’ in favour of the Complainant for which the Complainant was unable to proceed to apply for mutation application and also unable to record his name B.L. & L.R.O. The Developers Opposite Party No. 1 & 2 had already sold out their Developer’s allocation with the consent of the Complainant and other Owners.
Ultimately, the Complainant sent a letter on 12.11.2014 requesting the Developers Opposite Party No. 1 & 2 to issue the ‘Possession Certificate’ and the ‘Completion Certificate’ in favour of the Complainant which was duly received by the Opposite Parties and replied on 28.11.2014 wherein they admitted that they had not yet supplied the said ‘Possession Certificate’ and the ‘Completion Certificate’ to the Complainant, what amounts to negligence and deficiency on part of the Opposite Parties and caused mental agony and harassment to the Complainant for which he asked for compensation. Hence, this case is filed seeking adequate redressal.
Resisting the complaint, both the Opposite Parties No. 1 and 2 by filing Written Version denying all the contentions and all material allegations made by the Complainants in the petition of complaint and stating inter alia, that the Complainant has no cause of action, the case is not maintainable and is barred by limitation.
The specific case of the Opposite Parties No. 1 and 2, in terse, is that, the present Opposite Parties had entered into an Agreement with the Complainant and other land Owners to construct a building but the Owners had given a Notarized ‘Power Of Attorney’ instead of registered ‘Power Of Attorney’, for which the Developers had to face many difficulties in case of selling the flats of Developer’s allocation.
Written & Typed by me. Contd3/-
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The Developers severally requested the Owners to register the said ‘Power Of Attorney’, but the Owners were very much reluctant to do the same. After completion of the construction work of the said building the Opposite Parties had already delivered the Owner’s allocation and the said flat No. C 2 on the 2nd floor to the Complainant on time, which proves that the Developers Opposite Parties No. 1 & 2 had rendered their service without any fault and/or negligence. Thus, the Opposite Parties denied any kind of negligence or and deficiency in rendering service towards the Complainant by them and so they prayed for dismissal of this case.
Points for Determination
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
We have carefully considered the submission made before us by the Ld. Advocate for the Complainants and the Ld. Advocate for the Opposite Parties and also critically perused all the material documents on record.
The main dispute between the Complainant and the Opposite Parties is that whether the Opposite Parties are liable to pay compensation for not delivering the ‘Possession Certificate’ and the ‘Completion Certificate’ to the Complainant or not.
We have carefully considered the submission made before us by the Ld. Advocate for the Complainant and also the Ld. Advocate for the Opposite Party No. 1 and 2 and also critically perused all the material documents on record.
On overall evaluation of the argument advanced by the Ld. Advocates of both the parties appeared and contested and on critical appreciation of the case record,
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C. C. Case No. 667/2014
it is admitted by the both parties that an Agreement was executed by and between the Complainant and other Owners and the Opposite Parties No. 1 and 2 for constructing a new building on the land of the Complainant and other Owners.
Manifestly, it is admitted by the both parties that the Complainant had already been got the actual possession of his specific flat from the respective Owner’s allocation as handed over by the Opposite Parties.
Moreover, it is evident from the photocopies of the documents filed by the Complainant that the Developers Opposite Party No. 1 & 2 had not yet been delivered the ‘Possession Certificate’ and the ‘Completion Certificate’ to the Complainant for which the Complainant was unable to proceed to apply for mutation application and also unable to record his name B.L. & L.R.O. yet and as such the Complainant suffers a financial loss.
It is revealed from the photocopies of the documents on record that an unregistered notarized ‘Power Of Attorney’ was executed by the land Owners in favour of the Developers Opposite Party No. 1 and2 and it is evident from the letter dated 12.11.2014 the Complainant requested the Developers Opposite Party No. 1 & 2 to issue the ‘Possession Certificate’ and the ‘Completion Certificate’ in favour of them which was duly received by the Opposite Parties and it is also found from their reply dated 28.11.2014 that the Developers Opposite Parties had gave a condition to the Complainant that if the Complainant executed a registered ‘Power of Attorney’ in favour of the Developers Opposite Parties, then the Opposite Party No. 1 & 2 would deliver the said ‘Possession Certificate’ and the ‘Completion Certificate’ to the Complainant. So, from the letter dated 28.11.2014 it is crystal clear that the Developers Opposite Party No. 1 & 2 had have deliberately reluctant and negligent to deliver the said ‘Possession Certificate’ and the ‘Completion Certificate’ in favour of the Complainant and still liable to deliver the same.
So from the above analysis, in the considered unanimous view of the Forum is that though the Opposite Parties deliberately failed to deliver the said ‘Possession Certificate’ and the ‘Completion Certificate’ to the Complainant for which the Complainant had/have to suffer a lot, the Opposite Parties are still liable and obliged to deliver the ‘Possession Certificate’ and the ‘Completion Certificate’to the Complainant and also liable to pay the compensation in favour of the Complainant, within the stipulated period fixed by the Forum.
Written & Typed by me. Contd.5/-
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Therefore, in light of the above analysis, we are inclined to hold that the Complainants are entitled to get the relief as above from the all Opposite Parties and consequently the points for determination are decided in affirmative.
In short, the Complainants deserve success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Parties with cost of Rs. 5,000/- only payable by the Opposite Parties to the Complainant within one month from the date of this order.
That both the Opposite Parties are directed to deliver the said ‘Possession Certificate and the Completion Certificate’regarding the said flat and said building to the Complainant, within a period of one month from the date of this order.
That both the Opposite Parties are directed to pay a sum of Rs. 5,000/only to the Complainants, as compensation for suffering harassment and mental agony, within one month from the date of this order.
In the event of non compliance of any portion of the executable order by the Opposite Parties within the above specified period, the Opposite Parties shall have to pay a sum of Rs. 200/per day from the date of this order till its realization, as punitive damages, which shall be deposited by the Opposite Parties in the State Consumer Welfare Fund.
Let the copy of the order be supplied to the parties free of cost when applied for.
Member Member President
Written & Typed by me.
