Hon’ble Mrs Dipa Sen (Maity), Presiding Member
The instant complaint U/s. 17 of the C.P.Act, 1986 has been filed at the behest of intending purchasers Sri Badal Chandra Samadder and his wife Smt. Madhuri Samadder against the Developers alleging deficiency in service relating to housing construction.
The Brief fact of the complaint case is that being intending purchasers after pursuing the sanctioned plan and other related documents from the Opposite Parties/Developers Complainants have expressed their intention to purchase a flat in a proposed upcoming project “Saajher Pradeep Apartment” on 3rd floor being No.3A measuring about 1317 sq. ft. super built up area in the South West side together with one car parking space measuring about 187 sq. ft. super built up area on the ground floor of the proposed building at Dum Dum, Cossipore Road, P.S-Dum Dum, Kolkata-74. In that respect an agreement for sale dated 31-05-2009 was executed by and between the Complainants and the Developer/Opposite Party No.1 M/s. Landscape (India) represented by its two partners Opposite Party No.2 Sri Ashis Ghosh and Opposite Party No.3 Sri Ashim Ghosh. As per the said Agreement dated 31-05-2009 the total consideration amount was decided as Rs.12,00,000/- (Rupees Twenty lakhs) only for the subject flat and car parking space. Complainants have paid the agreed entire consideration amount of Rs.12,00,000/- (Rupees Twelve lakhs) only to the Opposite Party Nos. 1 to 3. The Opposite Party Nos. 1 to 3/Developers after receiving the said amount, handed over the physical possession of the said flat including garage to Complainants but the construction work including installation of the lift of the building was still remained incomplete at that time. After several requests Deed of Conveyance for the said flat was executed and registered on 27-12-2011. The registering authority had assured the market value of the said flat and car parking space as Rs.24,82,954/-(Rupees Twenty four lakhs eighty two thousand and nine hundred fifty four). But in spite of several requests of Complainant lift was not installed and the completion certificate was not handed over to them. Without finding any other way the Complainant approached before Central Consumer Grievance Redrassal Cell, Consumer Affairs Department,West Bengal and without getting any fruitful result ultimately compelled to approached this Commission for Redressal of their grievances.
It appears from the case record that even after proper service of notices none appears on behalf of the Opposite Parties, no W/V has been filed by them. As such the case was proceeded ex-parte.
On the other hand Complainants have filed evidence on affidavit along with several documents i.e. copy of the development agreement dated 18-08-2006, copy of agreement for sale dated 31-05-2009, copy of Deed of Conveyance dated 27-10-2011 and BNA in support of their cases.
Ld. Counsel for Complainants has submitted that one development agreement between the Developers (Opposite Party Nos. 1 to 3) and the land owners (Opposite Party Nos.4 and 5) was executed on 18-08-2016. As per the said development agreement the Developers/(Opposite Party No. 1- 3) have full and absolute power for implementation of the said building project and to deal with flats therein except the owners allocation. The developers constructed the said building as per the sanctioned building plan No.199 dated 10-12-2017. The Complainants after receiving possession and registration of Deed of Conveyance requested to Opposite Partiess for several times and send letters dated 17-03-2016, 04-07-2016, 09-03-2016, 30-03-2016 and thereby requested to complete the unfinished works of the building including installation of lift and for obtaining completion certificate from the South Dum Dum Municipality. But the Opposite Parties /Developers by adopting unfair practice did neither complete the unfinished work nor obtain the building completion certificate from the concerned Municipality. The Ld. Counsel for the Complainant further argued that by adopting unfair trade practice the Opposite Parties deliberately depriving the Complainants from their lawful rights and claims in terms of the said agreement for sale and Deed of Conveyance. Complainants are entitled to get relief as contemplated in the Consumer Protection Act, 1986. Complainants have attached one case law, in between Samruddhi Co-operative Housing Vs. Mumbai Mahalaxmi Construction Pvt. Ltd of the Hon’ble Supreme Court in support of their case.
Having heard the Ld. Counsel for the Complainants and on careful perusal of materials on record it clearly appears that Complainants are consumers as defined U/s. 2(1)(d) of C.P Act, 1986 as Complainants hired services relating to housing construction from the Opposite Parties/Developers after making payment of Rs.12,00,000/- as total consideration amount.
On perusal of materials on record it clearly appears to us that one Agreement for Sale was executed in between the parties on 31-05-2009 and as per the said Agreement the Complainants have made payment of entire consideration amount of Rs.12,00,000/-(Rs.Twelve Lakhs). After that one Deed of Conveyance also executed in respect of the subject flat on 27-12-2011. In spite of that no completion certificate was handed over to the Complainants.
Any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service is defined as “deficiency” U/s. 2(1)(g) of the Consumer Protection Act, 1986. In the present case in spite of expiry of several years Opposite Parties did not provide completion certificate which we consider serious deficiency in service for which the Complainant has to suffer a lot.
It appears from the scrutiny of record that even after proper service of notices none appears on behalf of the Opposite Parties, no W/V has been filed by them. As such the statements made by Complainants remained unchallenged and uncontroverted.
The Hon’ble Apex Court in a case Samruddhi Co-operative Housing Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. has already decided that it is the duty of the Developer to hand over the completion certificate and as the same was not handed over till date we can consider that the cause of action is still continuing as failure to obtain occupancy certificate is a breach of obligation.
In view of the above discussion, we are of the view that the Opposite Parties have deficiency in service as they did not provide completion certificate which create immense harassment and mental agony to Complainants which dragged them and compelled them to approach before this Commission.
Considering the facts and circumstances the instant case is hereby allowed ex-parte with the following directions:-
- The Opposite Party Nos.1 to 3 are directed to complete the incomplete work and to obtain completion certificate from the concerned South Dum Dum Municipality and to hand over the same within 90 days from the date of communication of this order.
- The Opposite Party Nos. 1 to 3 are further directed to pay Rs.75,000/-(Rupees Seventy five thousand) only as compensation to Complainants for their mental agony and harassment along with litigation cost of Rs.25,000/-(Rupees Twenty five thousand) only.
The above payment must be paid to Complainants within 90 days from the date of communication of this order.
The Complainants are at liberty to put the order into execution for non-compliance of the above order.
Office is directed to hand over a copy of this Judgment to the parties free of cost.
