Date of filing : 24.5.2017
Judgment : Dt. 9.3.2018
Mrs. Balaka Chatterjee, Member
This petition of complaint is filed under section 12 of C.P.Act, 1986 by (1) Sri Sudip Narayan Ghosh, (2) Sri Pulak Kumar Bandopadhdaya and (3) Smt. Sarbani Mukherjee alleging deficiency in service on the part of the opposite parties (1) M/s Appease Apartment, (2) Sri Tamal Pal and (3) Sri Tapas Kanti Ukil.
Case of the Complainant in brief is that the opposite party Nos.2 & 3 being the partner of OP No.1 partnership firm and owners of a piece of land situated at Mouza – Behala, J.L.NO.2, r.s. No.83, Collectorate Touzi No.346, Pargana – Balia being the portion of C.S.Dag No.4194, corresponding to R.S.Dag No.13403, appertaining to C.S.Khatian No.1964 corresponding to R.S.Khatian No.7550 under P.S.-Behala (now Parnasree) South 24 Parganas, decided to develop their land by constructing a multi-storied building and accordingly applied and obtained sanctioned building plan from the Kolkata Municipal Corporation in 14.05.1992 in respect of above mentioned plot a 63 Pathakpara Road, P.S.-Parnasree, Kolkata-700 060. It is further stated by the Complainants that being desirous to have their own accommodation, the Complainants contacted the opposite parties (OP hereinafter) and agreed to purchase flats by paying consideration amount of Rs.1,90,000/-, Rs.60,000/- and Rs.1,91,086.37 respectively and registration of Deed of Sale was executed on 26.8.1994, 12.11.1993, 8.12.1993 respectively.
The Complainant have further stated that they had to pay Rs.36,000/- as property tax which had been lying due since 60 years i.e. from 1937 to 1992 and which was to be paid by the OPs. It is further stated by the Complainant, the OPs tried to sell out the roof right and common space which is actually belonging to the flat owners and observing such activity of the OPs, the Complainants protested but the opposite parties paid no heed to that and the Complainants filed title suit being No.2429 of 204 before Ld. Civil Judge, 5th Court and an order of injunction is in force. Further the Complainants have stated that the OP did not handover the Completion Certificate to the Complainants and such inaction on the part of the OPs amounts to deficiency in providing services and non-delivery of completion certificate deprived the Complainants from availing Bank Loan and thus caused monetary loss.
The Complainants have filed this case praying for direction upon the OPs to collect the completion certificate from KMC by paying all dues, to refund of entire amount which the Complainants have paid to KMC towards dues, to pay Rs.12,00,000/- towards compensation, to pay Rs.2,25,000/- for special damages and cost.
The opposite parties have contested the case by filing written version denying and disputing all the material allegations stating inter alia that completion certificate was not mandatory for mutation of property, sanction of Bank loan, water connection, electrical connection, etc. at that point of time i.e. in the year 1992-1995 and, therefore, since the Complainants have mutated their names before KMC, the relationship of consumer-service provider ceased to be exist.
The OPs have further stated that no injunction order has been passed in title suit No.2429/14.
Both parties adduced evidence followed by cross examinations in the form of questionnaire and reply thereto.
The Complainants annexed photocopy of Deed of Sale dt.26.8.1994, 6.2.1992, 8.12.1990.
Deed of Indenture dt.12.11.1993.
Advocate’s letter dt.14.11.2014, 27.7.2016.
The OPs annexed photocopy of sanctioned building plan and other documents.
In course of argument Ld. Advocate for the Complainant reiterated the facts mentioned in the petition of complaint.
Ld. Advocate for the OPs stated that the Complainants did not file any document showing that they had applied for Bank Loan, etc. which had been repudiated on the ground of non-availability of completion certificate. Ld. Advocate also stated that no dues were lying with KMC.
Ld. Advocate for OP relied upon Section 18 of Limitation Act, 1963 and decision reported in (1) 2017 (1) CLJ(Cal) [State of WB and ors Vs Bajjora Ashan Alo and Ors.], (2) AIR 1979 SUPREME COURT 1937 Civil Appeal No.1295 of 1969 [Valliama Champaka Pillai vs Sivathanu Pillai and ors], (3) (2004) 12 Supreme Court Case 360 [Food Corpn. Of India vs Assam State Co-Operative Marketing & Consumer Federation Ltd. & Ors.]
Points for determination
- Whether the case is barred by limitation?
- Whether there is deficiency in providing service on the part of the OP?
- Whether the Complainant is entitled to get relief as prayed for?
Decision with reasons
Point No.1
The Complainants have alleged deficiency in service on the part of the OPs/ land-owner cum Developer for non-delivery of completion certificate in respect of a building at where the flats in respect of which they have hired housing construction service from the OPs are situated. It is stated by the Complainants that they have entered into agreement for sale with the OPs in 1992 and registration of Deeds of sale was executed in 1993 & 1994. The defence of the OPs in this regard is that as the instant case has not been filed within the statutory period of two years from the date of cause of action, the same is barred by limitation. In support of such contention, the OPs relied upon the decisions of Hon’ble Supreme Court as mentioned hereinbefore. Admittedly, the completion certificate in respect of the property in dispute has not been delivered to the Complainants – purchasers so far.
However, delivery of completion certificate to the flat owners after completion of building where the said flats are situated is statutory obligation of the builder as it contemplated under various acts and rules including CMC Act 1980 and CMC Building Rules 1990 and, therefore, it is evident that non-discharge of statutory obligation so far creates cause of action continuing in nature.
The decisions of Hon’ble Apex Court as relied by the OPs are not applicable to the instant case since in all the decisions the point of limitation, where the cause of action was not continuing, were dealt and in the instant case, the cause of action is continuing.
Since it is evident that delivery of completion certificates to the purchasers of flat is statutory obligation on the part of the builder the OPs of the instant case are also under such obligation. The OPs however, have stated that the partnership farm which was constituted by them for the purpose of development of a piece of land owned by them by constructing a building thereon and to sell out separate apartments constructed therein has already been dissolved and, therefore, they are not under obligation to provide completion certificate to the Complainants. It is settled that liability of partners of a partnership firm exists even after dissolution of firm in respect of obligation as accrued during the course of existence of partnership firm. In the instant case the obligation of delivery of completion certificate to the Complainants/flat owners was arose in course of the time of existence of partnership firm and, therefore, the partners of the said partnership firm are liable for non-delivery of completion certificate till now.
In such view of the matter, we are of opinion that the OPs shall deliver the completion certificates in respect of the said building issued by the KMC within 3 months.
It is, however, observed that the Complainants started making communication to the OPs in 2014 vide a letter dt.14.11.2014 and subsequently another letter dt.27.7.2016 and during the period from execution of sale deed on 1994 no correspondence in writing has been done.
Considering the circumstances, we are not inclined to allow other relief as prayed for by the Complainants.
All points are decided accordingly.
Hence,
ordered
The OPs are directed to handover completion certificate issued by KMC within 3 months from the date of this order, alternatively, if they find it is not possible they shall pay Rs.2,00,000/- to each of the Complainants within aforesaid period.
