Order-13.
Date-22/06/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that on the basis of an agreement to sale on 05-10-2005 with the owner of the land represented by their constituted attorney Mr. Swapan Paul, OP1 and developer M/s. Paxco represented by Biswajit Ghosh OP2, purchased a flat as per scheduled ‘C’ on payment of agreed consideration money and said agreement was signed by Swapan Paul and Biswajit Ghosh as constituted attorney of the landowners and on behalf of M/s. Paxco, the developer.
The superbuilt up area of the flat is 529 sq. ft more or less situated on the 4th floor of the North-East side of the premises consisting of one bed room, one dining/drawing space, 1 kitchen and 1 toilet with all easement right over the common area, staircase with undivided inclusive in particular variable proportionate share of land under the flat butted and bounded as per schedule ‘A’ of the complaint.
On full payment of the entire consideration that is Rs.7,90,000/- deed of conveyance was executed on 17-05-2006 under the signature of Swapan Paul and Biswajit Ghosh and as per deed of conveyance the possession of the flat was handed over but complainant after taking possession has been facing problem on the ground that OP has failed to handover completion certificate though complainant asked them to handover completion certificate and thereafter, complainant along with other flat owners issued an ultimatum notice to the OP vide their letter posted on 04-03-2013 requesting to provide the C.C. but OP failed to provide the said CC as yet for which the mutation is lying pending for years together for want of C.C. and family members of the complainant and the flat-owners are facing much inconvenience for the laches and negligence and deficient manner of service of the OP and for adopting such unfair trade practice and for which complainant has prayed for compensation and for directing OPs to handover the CC.
On the other hand, OPs by filing written statement submitted that the complaint is barred by limitation as same has not been submitted within scheduled time of two years of the date of registration and it is further submitted that in mutating their names in the Assessment Register of Kolkata Municipal Corporation because it is not mandatory to the flat owners at the time of mutation, they have an obligation under the statue to submit the CC. It is further submitted that complainant is the flat owner and she is aware of the fact that the premises no.70, Shyambazar Street, P.S. Shyampukur, Kolkata – 700 004 under ward no.8 has been subsequently included in the list of khatal premises though at the time of sanctioning the building plan, the said premises was not included in the KMC as Khatal Premises. As such without deleting the term khatal from the Assessment Register of Kolkata Municipal Corporation, no. C.C. can be issued in favour of the flat owners against the said premises, because Khatal Premises are under the jurisdiction of the Controller of Thika Tenancy Kolkata.
Moreover, flat owners never raised any complaint against building materials or any other matter as such the question of unfair trade practice and deficiency of service do not arise.
Fact remains OP already moved before controller of Thika Tenancy, Kolkata for deleting of the term ‘Khatal’ from the instant premises and the matter is lying pending under the jurisdiction of Ld. Controller of Thika Tenancy Kolkata for final adjudication. So, till such disposal it is impossible to handover C.c. and for which the present complaint should be dismissed.
Decision with Reasons
On careful study of the entire complaint including the written statement and also deed of sale it is clear that complainant has no grievance about the sale or other matter except non-receipt of the Completion Certificate in respect of premises in question.
No doubt OP has admitted that they are unable to get any completion certification on the ground the case premises has already been declared as Khatal Premises which is already under the Control of Controller of Thika Tenancy, Kolkata and without his clearance KMC cannot grant any completion certification though building plan had been sanctioned when it was not detected that it was a Khatal.
Considering the entire facts and circumstances and the submission of the OPs we are convinced to hold that practically the OPs somehow or otherwise managed to procure the sanctioned plan and after completion and sale of the all flats to the intended purchaser when prayer for completion certificate was filed it was detected that in the register of the KMC it was a Khatal land. So, completion certificate was not granted on the ground it is under the control of Controller, Thika Tenancy Act but moot question is whether the complainants shall have to suffer for the fraudulent act of OPs when complainant have already invested huge amount for purchasing the flat and when they are residing and their registered deed has already been executed. Then as per agreement and the sale deed it is the legal duty of the OPs to handover completion certificate and at the same time it is the duty of the OPs to collect mutation application of the respective purchaser of the flats and to take all such steps for mutate their name to the KMC after getting such clearance from Controller, Thika Tenancy Act and OPs cannot anyway shift their liabilities and responsibility upon the complainant because it is mandatory provision of law that at the time of sale deed in respect of a flat completion certificate must have to be handed over on that date but that has not been done but truth is that the OPs have already realized the entire amount of the flat but complainants have been passing their days with great tension and anxiety. The sweet has been enjoyed by the OPs by keeping the complainant to enjoy sour daily and that is the pain, sufferings and practically complainants are passing their days with heavy tension what would be the fate if Controller of Thika Tenancy takes possession of the same treating complainants as trespassers. No doubt after applying our all legal concept we are sure it is the liability of the OPs to handover the completion certificate to all the flat owners and it must be handed over to all the flat owners within three months otherwise for adopting unfair trade practice of the OPs they shall be imposed punitive damages @500 per day till handing over the mutation certificate in favour of the complainant and no doubt the OPs shall have to pay all such costs for preparing completion certificate and mutation in the name of the complainant and other flat owners.
In the result, the case succeeds as the deficient negligent act on the part of this OP is proved and at the same time the OPs have adopted unfair trade practice.
Hence,
Ordered
That the case be and the same is allowed contest against the OPs with a cost of Rs.5,000/- (Rupees Five thousand only).
OPs are jointly and severally directed to handover completion certificate and to mutate the name of the complainant and other flat owners in respect of the respective flats in the KMC within 3 months failing which after completion of the stipulated period each OPs shall have to pay Rs.500/- per day as punitive damages till handing over the completion certificate of the premises and mutation certificate in the name of the complainants and if the attitude of the OPs are found reluctant in that case also penal action shall be started against them u/s.27 of the C.P. Act and entire matter shall be monitored by this Forum for implementation of this order.
