Hon’ble Mrs. Soma Bhattacharjee, Member
Ld. Advocate for the complainant is present.
This is a case u/s 17 of the C.P. Act, 1986 with a prayer for direction upon the OPs to complete the incomplete and defective works of the premises mentioned in the agreement for sale dt. 18.04.2011 and providing completion certificate. There is also prayer for compensation of Rs. 10 lakh for mental agony and Rs. 50,000/- as litigation cost.
The fact of the case is in short like that the complainants were purchasers of a flat at premises no. 65 Suren Sarkar Road Block A 3rd floor South East side front portion Kolkata from the OP no. 1 /developer for total consideration price of Rs. 14,42,000/-. The OP no. 1 is the developer, OP no. 2 to 6 are landowners.
At the time of signing agreement Rs. 14,42,000/- was paid which would reveal from page no. 61 of complaint. The agreement for sale is at page 16 of the complaint.
Subsequently, a deed of conveyance was executed and registered on 13.05.2014 which is annexed with page 57 of the complaint. Possession was also handed over on the same date. It appears that total consideration of Rs. 14,42,000/- was paid to the OP no. 1. On the same date the OP no. 1 /developer put the complaint into possession of the alleged flat. There was a clause in agreement for sale that the developer shall arrange for the supply of the completion certificate.
Main grievance of the complainant is that the completion certificate has not been issued in his favour and although the lift was installed in the premises but it is yet to be operational.
The OP no. 1 contested the case by filing a W.V. the other OPs did not appear. So the case proceeded ex parte against them.
The OP no. 1 submitted that due to pendency of the proceedings before the Hon’ble High Court the construction work was delayed. But the OP did not disclose the case no. and did not get any order from the Hon’ble High Court. The OP no. 1 stated that although they have competed the construction as per sanctioned building plan but he failed to obtain any completion certificate from the competent authority. So the OP prays for dismissal of the case.
Both parties adduced evidence on affidavit. The complainant was cross examined by questionnaire filed by OP no. 1 and the complainant replied to such questionnaire. OP no. 1 also adduced evidence on affidavit. He was cross examined by the complainant by filing questionnaire. OP gave replies. It would reveal from the reply that he applied for CC but no such CC has been issued.
Now the points for consideration is that
- Whether the complainant is a consumer?
- Whether he has any cause of action?
- Whether there was any deficiency in service on the part of OPs/ developer?
- Whether the complainant is entitled to relief as prayed for?
- To what other relief or reliefs if any, the complainant is entitled to.
For the sake of convenience all the points are taken together for consideration.
The copies of agreement for sale, deed of conveyance mentioning the payment in memo of consideration are already on record. It appears that it is an admitted position that the CC has not been issued. So there is cause of action for filing the present case.
The Ld. Advocate for the complainant submitted that as per clause 10 of agreement for sale mentioned in page 13 of the same that one common lift was to be installed and lift power shall be provided from common portion of the building.
The evidence adduced by the complainant was not shaken in his cross examination. On the contrary the OP no. 1 admitted that the CC could not be obtained.
So, it appears from the discussion that the complainant is a consumer in terms of C.P. Act, 1986. He has cause of action to file the case and there is deficiency in service on the part of OP no. 1 and the complainant is also entitled to relief as prayed for.
So, the case succeeds on contest.
Hence it is ordered
The complaint case CC/655/2017 is allowed on contest against the OP no. 1 and ex parte against the rest with a litigation cost of Rs. 40,000/- payable by the OP no. 1 to the complainant along with compensation of Rs. 1,00,000/- also payable by the OP no. 1. The OP no. 1 is directed to arrange for supply of completion certificate to the complainant and to complete the formalities regarding the installation of lift within 90 days, failing which, it shall carry interest on the aforesaid amount @8% p.a. from this date till the payment of entire amount. The complainant is at liberty to put the order into execution after expiry of the stipulated period.
CC no. 655/2017 is hereby disposed of. Free copies of this order be supplied to all parties.
