DIST. CONSUMER  DISPUTES  REDRESSAL  FORUM

NORTH 24 Pgs., BARASAT.

                                        C. C.  CASE  NO. 405/2014

   Date of Filing:                 Date of Admission               Date of Disposal:

    22.07.2014                        31.07.2014                            31.10.2017                        

 PETITIONER                                 = Vs. =                            O.Ps.

Sri. Dipankar Chakraborty                                  1.M/S. Anima Enterprise,having  

S/o. Late Dinesh Ch. Chakrborty.                        its regd. office at Birnagar,

Halisahar Station Road,                                         Lockgate, P.O. Bengal Enamel,

P.O: Nabanagar                                                       P.S. Titagarh, Dist- North 24 Pgs.

P.S: Bizpur                                                               2.Smt. Anima Biswas,

Dist: North 24 Parganas                                        W/o. Rasamay Biswas,of

Pin-743136.                                                                         Birnagar Lockgate,

At present residing at Flat No:                             P.O.Bengal Enamel,

204 & 205                                                                 P.S. Titagarh, Dist- North 24 Pgs.

1^st floor of Anamika Dream Plaza                     3. Smt. Arati Roy,

101(60), Harisabha Road,                                               W/o. Late Utpal Roy,

Barrackpore,                                                           4.Smt. Manasi Debnath,

P.O: Nona Chandanpukur,                                  W/o. Sri Arun Debnath.

P.S: Titagarh,                                                           5.Sri Amitava Roy,

Dist: North 24 Parganas,                                      S/o. Late Utpal Roy,

Kolklata-700122.                                                    All of 94, Harisova Road,

                                                                                    P.O. Nonachandanpukur,

                                                                                     Barrackpore, P.S. Titagarh,

                                                                                     Dist- North 24 Parganas.

                                                                                    6.Smt. Tapasi Nath,

                                                                                    W/o. Sri Sujit Kr. Nath,of

                                                                                    Upper Ganges Sugur & Industries Ltd,

                                                                                    Seohara, Bijror, U.P, Pin-246746.

                                                                                    7. Smt. Atasi Debnath,

                                                                                    W/o. Prolay Kanti Debnath,of

                                                                        Bachurdoba, P.O. Jhargram,

                                                                        Dist- Midnapur(West), Pin-721507.    

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

                                      Sri. Siddhartha Ganguli ……………………………  Member.

                                      Smt. Silpi Majumder………………………………... Member.

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                               FINAL ORDER & J U D G E M E N T

Sri. Siddhartha Ganguli, Hon’ble member:

This is an application U/S-12 of the C.P. Act, 1986, r.w. Sec – 13 & 14 of the said Act, filled by the complainant Dipankar Chakraborty praying for directions upon the Ops to perform their contractual obligations as per agreement dated 15.02.2008 in respect of the Schedule – B flats with undivided proportionate share of land along with all facilities, amenities and privileges as agreed upon in favour of the complaint at the cost of the OP No : 2 and for other reliefs as prayed in the complaint  petition in details along with to pay compensation on account of mental agony, pain, anxiety and unnecessary harassment and litigation cost to the complainant.

          Brief facts of the case are that the complainant entered into with an Agreement for Sale with the OP No. : 1 & 2 on 15.02.2008 for purchasing two flats being No. 204 & 205 on the 1^st  Floor of the building, which was named as ANAMIKA DREAM PLAZA, measuring about 1603 Sq.ft., which is specifically described in Schedule – B of the complaint petition, for a consideration of Rs.16,73,000/- with common garage, which was being constructed on Schedule – A property as mentioned in the complaint petition, i.e. a piece and parcel  of ‘Bastu’ land measuring about 11 Cottahs 4 Chittack 12 Sq.ft. recorded in Sabek & R.S. Dag No.:- 1275, under R.S. Khatian No.:- 2053, Hal Khatian No.:- 5000,  under Mouza :- Chanak, J. L. No. :- 4, Re.Sh No. :- 39, Touzi No. :- 2998, within the limit of Barrackpore Municipality, Ward No. :- 7 within P.S. :- Titagarh, Dist. :- North 24 Parganas, having bounded North by :- Harisava Road, South by :- H/o. Late Sambhu Ghosh & Dakshina Ranjan Chowdhury, East :- by H/o. Ajit Roy & Usha Rani Roy and West by :- Basudev Apartment.

          It is the contention of the complainant that he is a  bonafide consumer of the  Ops. The OP No : 1 is a Proprietorship Firm  and OP No. : 2 is the Sole Proprietor of the said firm. Other Ops. are the landowners of the Schedule – A property. The OP No : 3 to 7 had entered into a Development Agreement with the OP No. 1 & 2 on 13.08.2007 for the purpose of development of Schedule – A property under certain terms and conditions and in terms of the Development Agreement and by virtue of General Power of Attorney the OP No : 1 & 2 started

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       raising construction of a multistoried building in and over the Schedule – A property and during the course of construction of such multistoried building, the OP No. : 1 & 2 invited the intending purchasers to purchase flat, garage etc. and the complaint who had dire need of his own accommodation, having heard the same, visited the OP No. : 1 & 2 and expressed his intention to purchase two flats measuring more or less 1500/1600 Sq.ft   and in response to such approach made by the complainant, the OP No. : 2 made the complainant aware of the fact that flats as per his choice was available and OP No :2 convinced the complainant by showing the Development Agreement and other documents that the OP No : 1 & 2 were lawfully empowered to Schedule – A property, in which the OP No.: 3 to 7 were the real landowners, and being satisfied primafacie the complainant agreed to purchase the aforesaid flats and accordingly, the complainant entered into an Agreement for Sale dated 15.02.2008.

          It is further contended by the complainant that as per terms & conditions of Agreement for Sale dated 15.02.2008 the Ops. were liable to sell out the aforesaid flats on ownership basis and to deliver the possession of the said flats in favour of the complainant on completion of full payment.  The complainant paid entire consideration money to the OP No. :-1 & 2 as per the agreed terms, but the OP No. : 1 & 2 were disinterested rather reluctant to complete the building and to finish the works of the flats in compliance with sanctioned building plan & specification as specially mentioned in the Agreement for Sale respectively and the complainant time and again requested OP No. :- 1 & 2 to complete the building within the stipulated period and to handover the schedule – B two numbers of flats in habitable condition to him, and in reply the OP No. : 1 & 2 assured them that the moment the building will be completed the OP No. :- 1 & 2 will get the completion certificate from the authority concerned and OP No. :- 1 & 2 will serve a Notice to  the complainant, in terms of the agreement.  The complainant further requested the OP No. : 1 & 2 to do the needful for early completion of the building as well as complete the flats in all respect, further that delivery of possession of the flats and execution and registration of the same cannot be for indefinite period of time.

          The complainant further stated that several months were elapsed, but he found that the OP No: - 1 & 2 were doing the construction works very slowly and all the intending purchasers including the landowners were very dissatisfied over activities and performances of OP No:- 1 & 2.  The complainant and other intending purchasers intimated the Ops that they were contractually liable to

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       perform their part and then the OP No:2 agreed to deliver possession of the flats in favour of the intending purchasers and some of the flats were handed over to the intending purchasers in incomplete condition of the entire building and some of the flats were registered by the Ops. The complainant got the possession of the flat on 07.06.2010 though the building was not completed. Deed of Conveyance was executed and registered in respect of the schedule flats on 02.06.2010 .

          It is further contended by the complainant that he had to pay in excess as per the compulsion of the husband of OP No :- 2 Rs.50,000/- on account of  corridor beyond the contract, which he is entitled to get back from the O.P No: 1 & 2.

          The main allegation of the complainant is that though the possessions of the flats were given in the year 2010 to the complainant and registration was done but the OP No : 1 & 2 have not done the inside and outside works of the building as per sanctioned building plan and have not taken municipal water connection.  The OP No : 1 & 2 did not make any provision for thunder protection / thunder earthen connection and fire proofing system in the entire building, which are essential for such a high rise building.

          Further, the OP No: 1 & 2 have not demarcated the space for common garage and possession of the same not yet been delivered.  Apart from that the OP No. 1&2 have not obtained the completion certificate from the authority concerned and no step is taken for society formation or association for the flat owners in terms of the agreement.  The complainant time and again requested the OP No: 1 & 2 to complete the unfinished works of the building but the OP No: 1 & 2 did not pay any heed to, rather they were taking dilly dallying tactics,  due to which the complainant is facing much trouble and also suffering mentally and financially.  An ad-hoc committee has been formed by the flat owners to solve the common problems.

          It is further contented by the complainant that in the first part of June 2010, the O.P No: 1 & 2 insisted the complainant to get the flats registered without serving any notice as per clause 5 of the agreement for sale and as the building was not completed and no completion certificate was obtained by the O.Ps, the

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       complainant was disinterested to get the flats registered and then the O.P No: 1 & 2 being the developers intimated the complainant that if the complainant did not agree with the proposal made by the O.P No:1 & 2, in that case the complainant shall have no scope to get the garage and so in fact the complainant under compulsion had to get schedule-B flats with garage measuring 122.5 Sq.ft bearing No:103 registered and the complainant had to make payment of Rs.21,19,880/ to the O.P No: 1 &2 and accordingly the O.P No: 1 & 2 executed and registered the deed of Conveyance bearing No: 6230 dated 02.06.2010 in respect of Schedule flats and garage and later on the complainant got the possession of the flats and garage on 07.06.2010.  The complainants stated that the OP No: 1 & 2 are negligent  and deficient in service and they have been harassed and finding no other alternative, they filed this case and approached before  this Forum for proper redressal and prays for the following reliefs :-

      The complainants therefore pray for the following relief :-

i)   The Opposite Party No. 1 & 2 and the Opposite Party Nos. 3 to 7 jointly or severally be directed to finish the following unfinished works.

a) Complete inside and outside works of the building as per sanctioned plan.

2.  
3. Thunder earthing connection in entire building.
4.  
5.  
6.  
7. Handing over the building to the Association / Society to be formed.
8.  
9.  
10.  

ii)  The Opposite Party Nos. 1 & 2 and the Opposite Party Nos. 3 to 7 jointly or severally be directed to obtain completion certificate from Barrackpore Municipality or any other competent authority in respect of the building and to handover a copy of the same to the complainants.

iii) The O.P. Nos. 1 & 2 be directed to refund the excess amount of Rs.50,000/- to the complainant, which was realized by the O.P. Nos. 1 & 2 from the complainant against the cost of corridor beyond the contract

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iv) The Opposite Party No. 1 & 2 and the Opposite Party Nos. 3 to 7 jointly or severally be directed to perform their part as per terms of the Agreement for Sale as well as Development Agreement.

v)  The Opposite Party No. 1 & 2 and the Opposite Party Nos. 3 to 7 jointly or severally be directed to pay compensation on account of mental agony, pain, anxiety and unnecessary harassment to the complainant as per his prayer.

vi) The Opposite Party No. 1 & 2 and the Opposite Party Nos. 3 to 7 jointly or severally be directed to pay a sum of Rs.25,000/- or more to the complainants as litigation cost.

vii) The Opposite Party No. 1 & 2 and their men and agents be restrained by an interim order in the shape of injunction from raising any construction in or over the common space / land and from ousting the complainant from the Schedule-B flats and from doing any works beyond the sanctioned building plan and from doing any illegal acts in respect of the building and from doing any mischief in any manner till disposal of the instant case.

viii)   Any other relief to which the complainant is entitled to get under law, equity and natural justice.

      The complainant in order to prove his case filed the following Xerox documents :

1. Agreement for Sale dated 15.02.2008 containing 31 pages, in which the memo of consideration has been written on page – 31.
2.    Payment Schedule.
3. Money Receipt of Rs3,90,000/- dt. 15.02.2008.

4. Money Receipt of Rs.3,28,000/- dt. 13.03.2008.
5. Money Receipt of Rs. 3,00,000/- dt. 15.05.2008.
6. Money Receipt of Rs.2,00,000/- dt. 09.07.2008.
7. Money Receipt of Rs. 1,00,000/- dt. 10.12.2008.

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        The complainant further filed the copy of cheques as under:

1.Cheque amounting to Rs.1,00,000/dated 10.12.2008, drawn in favour of M/S     Anima Enterprise.

2.Cheque amounting to Rs. 2,00,000/dated 12.07.2008,drawn in favour of M/S

Anima Enterprise.

3.Cheque amounting to Rs.1,50,000/dated 15.05.2008 drawn in favour of M/S           Anima Enterprise.

4.Cheque amounting to Rs.1,50,000/dated 15.05.2008 drawn in favour of M/S  Anima Enterprise.

5.Cheque amounting to Rs.3,28,000/dated 03.03.2008 drawn in favour of Anima Enterprise.

6.Cheque amounting to Rs.1,00,000/ dated 15.02.2008 drawn in favour of Anima Enterprise.

7.Cheque amounting to rs.2,65,000/ dated 01.06.2010 drawn in favour of Anima Enterprise.

8. Cheque amounting to Rs.78,000/ dated 15.06.2010 drawn in favour of Anima Enterprise.

The complainant further filed the following documents in Xerox:

a) Letter of possession dt. 07.06.2010 issued by the Proprietor, Anima Enterprise to the complainant regarding handing over possession of flats being No: 204 & 205 measuring of 1628 sq.ft

b)Copy of deed of conveyance dated 02.06.2010.

 c)Joint Letter dated 03.02.2011 issued by the Flat owners to the Prop.Anamika Dream Plaza.

d) Resolution taken by the flat owners dt. 01.02.2011.

5. Letter dt. 15.07.2012 issued to the Proprietor, Anima Enterprise.
6. Letter of Anima Enterprise dt. 02.09.2012 to Smt. Arati Roy & Others.
7. Letter of Arati Roy, dt. 06.09.2012 to the Proprietor, Anima Enterprise.
8. Letter of Dilip Dhar dt. 19.11.2012 to the Proprietor, Anima Enterprise.
9. Joint Letter dt. 23.11.2012 sent to the Chairman, Barrackpore Municipality.
10. Letter of the Chairman, Barrackpore Municipality dt. 03.12.2012 addressed to the Proprietor, Anima Enterprise.
11. Joint letter dt. 19.06.2013 to the Chairman, Barrackpore Municipality.

• Letter to the Chairman, Barracpore Municipality dated 07.02.2013 by the Flat owners.
• Letter of Anima Enterprise dt. 20.06.2014 to the flat owners.

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    The OP No : 1 & 2 entered their appearance  in the case and filed W/V, on 03.03.2015 .  The other Ops, i.e. OP No. : 3 to 7 did not appear before this forum despite receiving Notices, and therefore the case is being proceeded Ex-parte against them.

          In the W/V, the OP No. : 1 & 2 denied all the averments of the complaint petition and stated that the OP No: 1 & 2 are Promoters and Developers by profession and they engaged in promoting and developing the land for the purpose of providing residential flats to the customers and they are doing business under the name & style M/s. Anima Enterprise, and OP No. : 2 is its Proprietor. 

      The OP No. 1 & 2 further stated that they have entered into a Development Agreement with the landowners, i.e. OP No. : 3 to 7 under certain terms and conditions on 13.08.2007 to develop to develop the land and raise multi-storied building in respect of Schedule – A land of the landowners, and the landowners have appointed the OP No. 1 & 2 as their constituted attorney through an unregistered Power of Attorney to exercise all such powers as embodied therein and the OP No : 1 & 2 after getting sanctioned building plan started construction works of a multi-storied building over the said land and after completion of the construction works of the said multi-storied building as per sanctioned building plan the OP No : 1 & 2 have started to sell out the constructed area to different buyers and they have also delivered the owners allocation.

      The OP No : 1 & 2 further stated that the complainant being inspected the area of flats and satisfied with all respect and relevant papers regarding the building and sanctioned plan and all its common other facilities of the said building have expressed his desire to purchase two complete flats and accordingly the complainant has entered into an Agreement for Sale of his  respective  two flat and garage dt. 15.02.2008, as stated in Schedule – B of the complaint petition.

      The OP No. : 1 & 2 further stated that they have done entire construction works over the flats of the complainant.  The  OP No. : 1 & 2 further stated that the execution and registration of the Deed of Conveyance  has done  on 02.06.2010 and possessions of the flats have been handed over to the complainant on 07.06.2010  and so they cannot be said negligent.  There was no delay or any illegal acts  done on the part of the OP No : 1 & 2,as they performed their duty on terms of the agreement.

      The OP No. : 1 & 2 further stated that they have done several extra works in the flats of the complainant and they performed their part of duties in respect of

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       agreement for Sale.  The OP No : 1 & 2 stated  further that the complainant filed this case for wrongful gain and the facts stated are false and fabricated one, and there is no deficiency in service on their part and prays for dismissal of the case.

      The complainant files affidavit-in-chief and adduced Evidence and further prays for local inspection and on the basis of his prayer an Engineer Commissioner has been appointed after hearing and the said Commissioner filed his report after holding commission works.

      The OP No: 1 & 2 further pray for treating their W/V, as evidence on their part. The arguments were heard and the complainant & OP No. : 1 & 2 filed their BNA respectively.

      Considering the complaint petition, W/V, evidence adduced by the parties and other materials on record, the following points have been framed :-

1. Is the complainants consumers ?
2. Is there any deficiency in rendering service towards the complainants by the Ops ?
3. Is the complainant entitled to get relief / reliefs as prayed for ?

-: Decision with Reasons :-

      All the points have been taken together for the sake of brevity and avoidance of repetition of facts.

It is the admitted position that the complainant and the O.P No: 1 & 2 had entered into an agreement for sale on 15.02.2008 for purchasing two flats being No: 204 & 205  on the 1^st  floor of the building, which was named as Anamika Dream Plaza, measuring about 1603 sq.ft, which is specifically mentioned in Schedule-B of the complaint petition for a consideration of Rs.16,73000/ with common garage, which was being constructed on Schedule-A property as mentioned in the complaint petition, owned by O.P No: 3 to 7.

The O.P No: 1 & 2 had entered into a development agreement with the O.P No: 3 to 7 dated 13.08.2007 and by virtue of the said agreement the O.P No: 1 & 2 raised a multi-storeyed building on/over Schedule-A property. The O.P No: 1 is a proprietorship firm and the O.P No:2 is the sole proprietor of the said firm. The O.P No: 1 & 2 confirmed the booking of the flats of the complainant and thereafter entered into an agreement for sale dated 15.02.2008,in which the memo. of consideration is written on its page-31 and as per payment schedule and money receipts, as filed by the complainant, it is clear that the O.P No: 1 & 2 received the entire consideration amount from the complainant. The O.P No: 1 & 2 handed

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over the possession of the suit flats to the Complainant on 07.06.2010 and the complainant are enjoying and possessing the same since occupation. The execution and registration of the flats has already been done on 02.06.2010 and it is seen from the deed of conveyance that the area of two flats measuring 1628 sq.ft with one garage bearing No:103 on the ground floor have been registered in favour of the complainant.

Therefore, the complainant is a consumer of the O.Ps as per the definition given U/S 2(1)(d) of the C.P Act.1986.

Now, in order to decide whether the O.Ps were deficient or not we have to look into the evidence of the parties.

From the complaint petition, w/v of the O.P No:1 & 2,evidence adduced by the parties and other materials on record, it is found that the Complainant had entered into an agreement for sale on 15.02.2008 with the O.P No: 1 & 2 for purchasing two residential flats along with a garage as stated above and the complainants paid Rs.16,73,000/ to the O.P No: 1 & 2 on various dates, which the O.P No: 1 & 2 acknowledged by issuing receipts. The complainant got the possession of the flats on 07.06.2010.The execution and registration of the flats have been done on 02.06.2010 and the complainant had to pay additional amount and he paid total amount of Rs.21,19,880/ .There is no dispute regarding payment of money between the parties.

The O.P No: 1 & 2 raised objection regarding payment of excess amount of Rs.50,000/ for cost of corridor beyond the contract as the complainant failed to produce any document regarding that matter. No document has been placed by the complainant regarding payment of Rs.50,000/ as cost of corridor to the O.P No: 1 & 2 and in absence of any such document we are unable to get any relief to the complainant. The O.P No: 1 & 2 stated that there were no latches on their part, because they already executed and registered the deed of conveyance in favour of the complainant and handed over the possession of the two flats..

Again, from the engineer commissioner’s report and other materials on record it is found that some common works of the building, as stated in detail in the report, is still incomplete.

The complainant prays for a direction to be given upon the O.P No: 1 & 2 to complete the same in terms of the agreement for sale and as per observation made by the engineer commissioner.

In reply, the O.P No:1 & 2 fairly submitted that the common works of the building is incomplete and they are agree to complete the outstanding works as per engineer commissioner’s report within the time framegiven by the Ld. Forum. The O.P No: 1 & 2 submitted that due to some unavoidable circumstances, they could not complete the works in time, but they hand over the possessions of the flats and issued possession certificate to the complainant.The O.P No: 1 & 2 further submitted that they will hand over the completion certificate to the complainant after obtaining the same from the concerned municipal authority.

Ld. Advocate for the complainant strongly submitted that the O.P No: 1 & 2 were negligent and deficient in service and they should be dealt with heavy hands and he has placed reliance the following case rulings in support of his contention.

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1. 2016(2)C.P.R 371 M/S Lakshmi Builders vs Kesavarapu Somesvvara Rao(NCDRC)
2. 2003(3) C.P.J 90 Leelawati Vs Dr. Sukhmal Jain ( NCDRC)
3. 2015(3) C.P.R 700 Ansal Properties & Infrastructure Ltd. Vs A.L. Baweja(NCDRC).
4. 2016(1) C.P.R 712 Ms. Shweta Kapoor Vs M/S Unitech Limited(NCDRC).
5. 2016(1) C.P.R 256 C.M. Nayar Vs M/S Unitech Ltd.(NCDRC).
6. 2015(3) C.P.R 562(N.C)  B.Subbarao Vs M/S Sun Pharmaceuticals Ltd. & Ors.
7. 2015(3) C.P.R 629 Emaar MGF Land Ltd. & Anr. Vs Dyal Singh.
8. 2016(2) C.P.R 805 Navneet Chabra Vs United Limited.
9. 2016(2) C.P.R 33  M/S Atul Realty Pvt. Ltd. & 2 others Vs E.P. Ramachadran.

      In the ruling cited by the Ld. Advocate for the complainant as referred in serial No:1, the Hon’ble National Commission  has been pleased to observe that “the unscrupulous act of the appellants/ builders should be dealt with heavy hands ,who after grabbing hard earned money of the purchasers go on enjoying their money but do not hand over the possession, on one pretext or the other. The appellants/builders want the respondentNo:1/purchaser to run from one forum to other, so that the appellants can go enjoying respondent No:1’s money without any hindrance. No leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless appeal. Equity demands that  such un scrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands.  Unscrupulous builders like appellants, who after taking substantial amount from the purchasers do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders, that National Commission is not helpless in such type of matters. The appeal is dismissed with punitive damages of Rs.1,00,000/”.

       The Ld. Advocate for the O.P No: 1 & 2 raised objection against the aforesaid ruling by saying that the facts and circumstances of the case is not identical with the present case in hand. The O.P No: 1 & 2 raised the building after receiving money from the complainant and handed over the possession to him in the year 2010. There is no question of grabbing and/or cheating of money of the complainant. The O.P No:1 & 2 in terms of the agreement handed over the possessions of the respective flats to the complainant. There were no latches on the part of the O.P No: 1 & 2 and they are not negligent in rendering service.

      In view of the above, we are of the opinion  that the facts and circumstances of the above cited case is not identical with the present case in hand and therefore the ratio of the cited  case is not applicable in this present case.

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       In the ruling cited by the Ld. Advocate for the complainants as referred in serial No:2, the Hon’ble National Commission allowing the revision, has been pleased to hold  that “the report of local commissioner was quite clear about deficiency in construction of road and hence it is the responsibility of the Consumer Forum to be alive and sensitive to the need, to ensure, that if deficiency is noticed then relief is given”.

      Ld. Advocate for the complainant submitted that in this present case engineer commissioner has been appointed for local inspection and he filed report, wherefrom it is clear that there were some deviation of works and some common works have not been completed.

      Ld. Advocate for the O.P No: 1 & 2 also conceded that some common works of the building is still incomplete and they are ready to finish the same within the timeframe given by the Forum.

      In view of the above, we are of the opinion that the cited case ruling supports the complainant’s case to some extent.

      In the ruling cited by the Ld. Advocate for the complainant, as referred in serial No: 3 the Hon’ble National Commission, after dismissing the revision petition filed by the petitioner/O.P, has been pleased to observe that” registration be done without payment of any cost within 45 days from today, otherwise penalty will be imposed upon the O.P in the sum of Rs.500/ per day, subject to the condition that this order will not be in respect of any other liability or rights”.

      Ld. Advocate for the complainant submitted that the O.P No; 1 & 2 are deficient in service and direction be issued against them to pay cost and in default penalty be imposed.

      On the contrary, Ld. Advocate for the O.P No: 1 & 2 submitted that the O.P No: 1 & 2 though received the amount  the cost of the flats and  they executed and registered the deed of conveyance in favour of the complainant and handed over the possession of the flats, therefore the O.P No: 1 & 2 can’t be termed as ‘deficient’. The O.P No: 1 & 2 has had no other intention. However, Ld. Advocate for the O.P No:1 & 2 submitted that the ruling cited above is not in consonance with the present case in hand and therefore the ruling is not applicable in this case. The Ld. Advocate for the complainant relying the above judgment submitted that compensation be awarded due to deficiency of the O.P No: 1 & 2.

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       Ld. Advocate for the O.P No: 1 & 2 submitted the same as stated above.

      In view of the above submissions, we are of the view that the context of the cited case will not support the complainant’s case.

      In the ruling cited by the Ld. Advocate for the complainant, as referred in Serial No: 4,the Hon’ble National Commission has been pleased to direct the O.Ps that” they should deliver the possession of the flat booked by the complainants within one year from the date of order and if failed, the O.Ps should pay compensation  along with other directions made therein”.

      The Ld. Advocate for the complainants relying the above judgment submitted that compensation be awarded due to deficiency of the O.P No: 1 & 2.

      Ld. Advocate for the O.P No: 1 & 2 submitted the same as stated above.

      In view of the above submissions, we are of the view that the context of the cited case to will not support the complainant’s case.

In the ruling cited by the Ld. Advocate for the complainants ,as referred in Serial No: 5, the Hon’ble National Commission, after allowing the appeal, has been pleased to hold the view that “the sale deed has been executed but the complainants were aggrieved because there was delay in handing over premises in dispute and non  issuance of  occupancy certificate and hold the view that justice delayed is not only justice denied, it is also justice circumvented, justice mocked and system of justice undermined”.

       “ The builders can’t prefer to adopt Fabian policy and in such a case directions has been issued to the OPs to pay 15% interest for delayed period and to give occupancy certificate”.

      The Ld. Advocate for the complainant stressed on this ruling and submitted that the O.P No: 1 & 2 should be burdened with interest for the delayed period and non issuing of occupancy certificate.

      On the contrary, Ld. Advocate for the O. No: 1 & 2 submitted that the flats in dispute has already been handed over to the complainant and the occupancy certificate/completion certificate will be handed over to the complainant after obtaining the same from the concerned municipality and the case cited above has no resemblance with the present case in hand.

       In view of the above, we are of the view that the cited ruling will support the complainant’s case to some extent.

Dictated & Corrected by me.                                                         Cont……P/14

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       In the ruling cited by the Ld. Advocate for the complainants, as referred in serial No:6, the Hon’ble National Commission after allowing the revision petition held that” the Consumer Fora is entitled to award not only value of goods or services but also to compensate consumer for injustice suffered by him due to deficiency in service in sale of goods or rendering of service”.

       Ld. Advocate for the complainant iterated the submissions made above and on the other hand the Ld. Advocate for the OP No: 1 & 2 submitted that there was no deficiency of service on the part of the O.P No : 1 & 2 as they handed over the possession of flats to the complainant and the present case will not help the complainant’s case in any way as the facts and circumstance of the referred case is not identical with the present case in hand.

      In our view the case referred by the complainants will help the complainant to establish their case to some extent.

      In the ruling cited by the Ld. Advocate for the complainant, as referred in serial No: 7,the Hon’ble National Commission has been pleased to held that” non delivery of physical possession of apartment within the stipulated period of time, as mentioned in the agreement, not only amounts to deficiency of service on the part of the builders but also guilty of indulging into unfair trade practice, if there is no explanation cited as to why the builders failed to deliver possession within the time frame”.

      Ld. Advocate for the complainant basing on this ruling submitted that punitive damages be imposed upon the O.P No: 1 & 2 .

            On the other hand, the Ld. Advocate for the O.P No: 1 & 2 submitted that regarding the question of possession, the O.P No: 1 & 2 have already given the possessions of the two  flats to the complainant and therefore there should not be any order for paying punitive damage basing upon the case ruling.

      In our view, the complainant will not get any extra millage through the decision of the Hon’ble National Commission as the facts and circumstances of the referred case is not similar with the case in hand.

      In the ruling cited by the Ld. Advocate for the complainants, as referred in serial No: 8,the Hon’ble National Commission has been pleased to held that  “justice delayed is not only justice denied. It is also justice circumvented, justice mocked and system of justice undermined”.

      By relying the citation, Ld. Advocate for the complainant  submitted that the O.P No:1 & 2 be directed to pay heavy cost due to their deficiency.

Dictated & Corrected by me.                                                           Cont……P/15

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        Ld. Advocate for the O.P No:1 & 2, on the other hand submitted that principle or the ratio of the referred case is not at all applicable in respect of the present case.

      In our view the facts and circumstances of the referred case is not similar to the facts and circumstances of the present case and hence the ruling will not help the complainant’s case

      In the ruling cited by the Ld. Advocate for the complainant, as referred in serial No:9,the Hon’ble National Commission has been pleased to observe that “unscrupulous builders like appellants who after taking  substantial cost of apartment do not perform their part of obligation ,should  not be spared. A strong message is required to be sent to such type of builders, that this commission is not helpless in such type of matters. Hon’ble National Commission held that the appeal is nothing but gross abuse of process of law and same is required to be dismissed with punitive damages. Hon’ble National Commission dismissed the appeal with punitive damages of Rs.50,000/”.

      Ld advocate for the complainant submitted that as the O.P No 1 & 2 did not perform their part in full they should be penalized taking into account the referred case law.

      On the other hand, Ld. Advocate for the O.P No: 1 & 2 submitted that the possessions of the  two flats in dispute have already been given to the complainant.  The registration of the flats has been completed.

             There was no negligence on the part of the O.P developers. Therefore, there is no question of awarding any punitive damages so far as the present case is concerned. The cited ruling is not applicable in the present case.

      In our view the cited ruling is related to not handing over the possession of flat, which is not in consonance with the facts and circumstances of the present case in hand and therefore this will not help the complainant to support of his case.

       However, the Ld. Advocate for the O.P No: 1 & 2 did not file any case references to counter the Complainant’s Advocate.

       Ld. Advocate for the O.P No: 1 & 2 further submitted that, the O.P No: 1 & 2 will complete the common works of the building as per the Engineer commissioner’s report within the time frame given by the Ld. Forum.

      However, considering the evidence of both sides, submissions made by the parties as well as the materials on record, we are of the view that the O.P No: 1 &

Dictated & Corrected by Me.                                                       Cont……P/16

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    2, are deficient in rendering service towards the complainant and therefore, the case of the complainant is succeeded as he is able to prove his case and the complainant is entitled to get relief.

      Regarding the quantum of compensation and litigation cost, we quantify the compensation and litigation cost at Rs.20, 000/ and Rs.5,000/ respectively, considering the nature of the case and keeping in mind the loss and sufferings of the complainant.

      All the points, therefore, have been discussed elaborately and go in favour of the complainant.

                                                      Hence

       It is ordered that the C.C No: 405 of 2014 is allowed on contest against the O.P No: 1 & 2 and Ex-parte against the O.P No: 3 to 7 but in part.

       The O.P No: 1 & 2 are directed to  complete and finish the pending common works of the building as per the Engineer Commissioner’s report dated 28.08.2015 within 05 months from the date of this order.

      The O.P No: 1 & 2 are further directed to handover the completion certificate to the complainants within the period of 5 months(five months) from the date of this order. The other O.Ps i.e the Land owners are directed to cooperate with the O.P No: 1 & 2 in order to obtain the completion certificate from the Municipality concerned.

      The O.P No: 1 & 2 are further directed to pay compensation to the tune of Rs.20,000/ and litigation charge to the tune of Rs.5,000/,totalling Rs.25,000/ to the complainant within 3 months(three months) from the date of this order, failing which the O. P No: 1 & 2 are directed to pay Rs.100/ per day as punitive damages from the date of this order till realization, which shall be deposited to the Legal Aid Account of this Forum by the O.P No: 1 & 2.

      In default, the complainant is at liberty to file an Execution Application under the provisions of the C.P Act,1986  for execution of this order.    

 Let free copies be given to the parties concerned in view of the C.P.Rules & Regulations.

Member                                 Member                                                   President

Dictated & Corrected by

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