ORDER
Order-12.
Date-03/01/2017.
Shri Pulak Kumar Singha, Member.
This is an application u/s.12 of the C.P. Act, 1986.
The complainant case, in short, is that the complainant entered into an agreement with O.P.-2 being the Developer and O.P.-1 being the confirming party on 20/12/2009 for purchasing a flat on the 3rd floor situated and constructed at 92, BamaCharan Roy Road, P.S. Behala, Kolkata-700034. The complainant paid total consideration amount of Rs.9,65,000/- by cheques on different dates in favour of O.Ps.-2 and 3. In the month of May-2010 O.Ps.-2 and 3 have handed over the flat on the 3rd floor of proposed building by way of handing over the keys thereof. But O.Ps. have not issued Possession Letter, NOC as well as Completion certificate as assured, issued by the Municipality. For obtaining electric connection the complainant recorded her name as occupier under the Assesse No.4112001103324 by paying statutory taxes and duties with the Kolkata Municipal Corporation and got electric connection and also paying monthly electric bill. The complainant in spite of personal requests times without number and visited to the office of the O.Ps. to deliver the completion certificate, deed of registration but O.Ps. did not pay heed. Finding no way the complainant appeared before this Forum with the prayer mentioned in the petition of complaint.
O.Ps.-2 and 3 appeared and contested the case by filing W.V. stating inter alia that O.Ps. have handed over the vacant possession of Flat No-3-B, on the 3rd floor by way of handing over the keys. Possession letter was laso handed over by the O.ps. and complainant has mutated the flat in question in her favour. Complainant has not paid registration charges to the O.Ps. The letter has no duty to execute and register the deed of conveyance of the flat in question to the complainant and cannot expect discharge of any service on their part. Complainant has paid Rs.9,65,000/- to O.Ps. for consideration amount and Rs.5,000/- to O.Ps. for mutation process. There is no deficiency in service on the part of the O.Ps. and O.Ps. prayed for dismissal of the case.
O.P.-1 in spite of received summon did not appear and contest the case. So the case is heard ex-parte against O.P.-1.
Point for Decision
- Whether the O.ps. are deficient in rendering service to the complainant ?
- Whether the complainant is entitled to get relief as prayed for ?
Decision with Reasons
We have carefully gone through the case record and documents, evidence, considered the arguments and BNA.
It appears from the complaint that complainant entered into an agreement with O.Ps.-1 and 2 who are the Owner and Developer for purchasing a flat measuring about 800 sq. ft. situated at 92, BamaCharan Roy Road, P.S. Behala, Kolkata-700034 from Developer’s Allocation. Accordingly the complainant paid Rs.9,65,000/- on diverse dates by cash and cheques. In the instant case O.P.-3 is the construction company of O.P.-2.
In the month of May-2010 O.Ps.-2 and 3 handed over the keys of the flat in question to the complainant without providing possession letter and completion certificate. But for necessity, the complainant has recorded her name with the Municipal Authority as Occupier by paying requisite fees and got electric connection at her own cost. O.Ps. have also admitted the version of the complainant in their W.V. but they have taken the only plea that complainant did not pay the registration cost. O.Ps. have handed over the flat almost six years ago but after receiving full consideration amount six years back O.Ps. are reluctant and never arranged for submission of possession letter, completion certificate to the complainant not even ever communicated for execution and registration of deed of conveyance of the said flat. On the other hand, complainant being a lady in spite of personal requests without number and visits to the office of the O.Ps. to deliver the possession letter, completion certificate and also registration of the deed of conveyance of the flat in question. But O.Ps. were very much reluctant and did not pay heed to the complainant.
O.Ps. have taken only plea in their W.V. that the complaint filed by the complainant has no cause of action but in the instant case O.Ps. have not discharge their part of obligation. So cause of action continues and the instant complaint is not time barred. Complainant has submitted some decisions of the Hon’ble NCDRC where Hon’ble NCDRC observed in a case Mop A Builders & Developers Pvt. Ltd. Vs. Unity Co-operative Housing Society Ltd. noted in 2011 (II) CPJ 71 NC, that possession given in 1995, complaint filed in 2007- Completion certificate and occupancy certificate not issued- Continue cause of action. So on the point of cause of action and limitation, the case of the O.Ps. have no leg to stand.
In view of the above discussions, we find that O.Ps. are clear deficient in rendering service and deliberately harassed the complainant and for which the complainant has been suffering mental pain, agony and also huge monetary loss and as such the complainant is entitled to get and order and compensation as prayed for.
In result, the case succeeds.
Hence,
Ordered
That the instant case be and the same is allowed on contest against O.Ps.-2 and 3 and ex-parte against O.P.-1.
O.Ps.-2 and 3 are jointly and severally directed to pay an amount of Rs.50,000/- as compensation for causing mental pain, agony, harassment and monetary loss apart from litigation cost of Rs.10,000/- within one month from the date of this order.
O.Ps.-2 and 3 are jointly and severally further directed to deliver completion certificate, possession letter and execution and registration of sale deed of the flat in question as per agreement in favour of the complainant within one month from the date of this order.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
