Hon’ble Mrs. Soma Bhattacharjee, Member

CC/364/2018 has been filed by Manoj Kumar Roy against the OP Samriddhi Construction, OP no.1 and Bivas Pradhan, OP no.2 / developer and OP no. 3 /landowner Rupa Saha. Smt. Shyamali Roy is the constituted attorney of Manoj Kumar Roy vide registered power of Attorney dt. 05.01.2016.

The complainant entered into an agreement for sale with the developer and the landowner who, was represented by her attorney, on 28.04.2015 for purchasing one flat out of the developer’s allocation measuring more or less 640 sq. ft. on the ground floor the scheduled premises being no. 125 /1 Chak Garia , Kolkata – 700084, for a total consideration of Rs. 23,00,000/-. The complainant paid a sum of Rs. 21,01,000/- out of the total consideration of Rs. 23,00,000/- to the developer / OP nos. 1 and 2 as per payment statement on page 97 of the case record, vide cheques and bank transfer.

In terms of clause 4 of the agreement for sale dt. 28.04.2015 the OP nos. 1 and 2 were bound to handover possession of the flat in a habitable condition within 18 months from the date of agreement i.e. by October, 2016. As per clause 6 of the agreement the OP nos. 1 and 2 were bound to pay interest @ 18% p.a. until handing over possession of the finished flat to the purchaser, for any delay.

The OPs 1 and 2 obtained sanctioned building plan from KMC on 20.04.2015. However, the developers neglected and failed to handover the flat in habitable condition to the complainant who sent a legal notice dt. 06.03.2018 calling him to complete the residual works of the flat and to execute the deed of conveyance on receipt of balance consideration. However, OP nos. 1 and 2 neglected to do so. Hence the complainant filed CC/364/2018.

The OP nos. 1 and 2 appeared and filed W.V. They also challenged the evidence filed by the complainant. In his questionnaire the complainant asked the OP nos. 1 and 2 whether they had received the completion certificate from KMC. OP no. 3 in her W.V has stated that he is willing to register the flat in favour of the complainant.

The case made out by the OPs is that since the complainant had asked for some extra work to be done in the scheduled flat the OPs were unable to get completion certificate from KMC which led to delay in handing over the flat. The OPs have incurred Rs. 1,24,310/- for extra work done within the scheduled flat but the complainant has refused to pay this extra cost incurred by the OPs. However, no money receipts regarding extra expenditure incurred by the Opposite Parties for undertaking extra work within the scheduled flat have been filed by the Opposite Parties.

In his argument the Ld. Advocate for the complainant cited :-

“2017 (3) CPR (NC) 729 : Builder who failed to complete project and deliver possession of apartment to complainant without any justifiable reason is guilty of deficiency in service as also unfair trade practice.”

“2018 (1) CPR (NC) 283 : Cause of action continues until conveyance deed is registered and completion certificate is obtained by OP in respect of the property in question.”

“2015(2) CPR (NC) 710: Failure to deliver possession being a continuous wrong it constitutes a recurrent cause of action.”

Heard both sides. Considered the documents available in the record. With due regard to the evidences, cross examination and replies of both parties and in terms of the position of law cited above, it is apparent that the OP nos. 1 and 2 are deficient in service to the complainant and the cause of action is still persisting in terms of Consumer Protection Act, 1986. The complainant is therefore entitled to relief as prayed for.

The CC/364/2018 succeeds and is allowed on contest.

Ordered

(i) Opposite Party nos. 1 and 2 are jointly and severally directed to handover possession of the scheduled flat to the complainant, on receipt of the balance consideration of Rs. 1,99,000/- ( Rupees one lakh ninety nine thousand) only.

(ii) Opposite Party nos. 1, 2 and 3 are jointly and severally directed to register the flat in favour of the complainant.

(iii) Opposite Party nos. 1 and 2 are jointly and severally directed to handover completion certificate in favour of the complainant.

(iv) Correlating with the mental agony and harassment of the complainant, the Opposite Parties nos. 1 and 2 are jointly and severally directed to pay compensation of Rs.1,00,000/- (Rupees one lakh) only in favour of the complainant.

(v) Opposite Party nos. 1 and 2 are jointly and severally directed to pay litigation cost of Rs. 20,000/- to the complainant.

All the directions are to be complied within 60 days of pronouncement of this order.

CC/364/2018 is disposed of on contest.

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