Per Hon ble Member Partha Kumar Basu

The instant consumer case has been instituted by the complainant u/s 35 of the Consumer Protection Act, 2019 against the Opposite Parties praying for reliefs like handing over of completion and possession certificate alongwith compensation and cost.

To sum up the matter, it is adduced on affidavit in the complaint petition that OP no 1 and OP no 2 are the developers and OP no 3, OP no 4, OP no 5, OP no 6, OP no 7, OP no 8 and OP no 10 being the landowners. The property in dispute as per schedule ‘B’ of the complaint petition is a residential flat at Block A, 4^th floor, north-east side, admeasuring 500 square feet approximately on super built up area basis on a piece of plot at JL no 32, Touzi no 267, Khatian no RS 262 , 585, at LR 661/1, 661, 1590 at dag no 403 on a 14 katha bastu land at mouza: Subuddhipur, PS: Baruipur, South 24 pgs at holding no 62 under ward no 2 of Baruipur municipality as per schedule ‘A’ of the complainant petition.

The complainants entered into an agreement with the OP no. 1 and OP no 2 developers on 23.12.2021 for purchasing the above said flat which was to be constructed by the developers on the land of the OP3 to OP10 landowners on the strength of a development agreement. The total consideration money as per the said sale agreement for Rs. 9,00,000/- was paid by the complainants in full and the physical possession was given to the complainants by the OP developers. The Deed of conveyance was registered on 24.01.2022 by the OP3 to OP 10 landowners through a general power of attorney dated 18.01.2016. But no possession letter was given to the complainants. Neither the completion certificate and the occupancy certificate were supplied by the developers to the complainants and in resultant the complainants state that they are unable to obtain the holding number and also not able to pay tax in want of a separate assessee number.

The complainants also exhibited a demand notice of property tax for Rs 4,45,434/- for the period 2023-24.

The complainants further state that there are some issues on unfinished work by the developer in respect of the boundary wall, roof tar felting, space constraint for parking, encroachment of common areas, security room et cetera  and apprehend that problems in respect of sewerage, water supply and drainage that may occur in future in want of completion and occupancy certificate. It is the case of the complainants that these shortcomings have been communicated to the OP developers from time to time but they failed to comply with and remained silent regarding compliance. The complainants, thereafter approached the office of the C.A & F.B.P, Baruipur but the OP developers did not pay any heed. The complainants therefore filed the instant complaint petition for gross negligence and deficiency in service on the part of the OP developers for getting proper relief/reliefs as prayed for.

S/Rs were completed in respect of all the OPs. W/Vs were filed by OPs except for OP1 and the order no 4 dated 08.01.2024 reveals that the case had proceeded ex-parte against OP 1 as no written version was filed.

The arguments as advanced by both the sides were heard at length and in full on 18.11.2021. Perused all records and documents. Considered the submissions of the Ld. Advocate.

Ld. Advocate appearing for the complainants argued that the complainants have entered into sale agreement with the OP1 and OP2 developer on 23.12.2021 for purchasing the flat and as per terms and conditions of the said agreement, the complainants have paid the consideration money in full to OP1 and OP2 developer company and received physical possession of the suit property. The Ld. Advocate further submitted that neither any possession letter nor the completion certificate and occupancy certificate were handed over to the complainants by the developers for which the complainants are unable to get holding number and also not able to pay tax for want of separate assessee number. The complainants stated further that there are some unfinished work by the developer in respect of boundary wall, roof tar felting, shortfall to park 2 wheelers, encroachment at common places/areas and unavailability of security room and there might be problems about sewerage, water supply and drainage in future for want of CC and occupancy certificate.

Upon careful perusal of copy of the agreement dated 23.12.2021, it appears that the complainants have entered into an agreement with the OP1 and OP2 developers in respect of purchasing the flat as per the schedule in the complaint petition. While the developers have physically handed over the flat in pursuant to the aforesaid agreement and the deed of conveyance was also got registered, it is apparent that the possession letter and CC are yet to be handed over to the flat buyer inspite of realising consideration money in full.

It is on record that the agreement has already been executed and it is the admitted position of the complainants that delivery of possession and the execution and registration of the flat has been completed by OPs. But the possession letter and the completion certificate has not yet been handed over to the complainants till date.

Regarding the progress in the balance work, it appears that nowhere from the four corners of the records, any cogent proof is available in support of their contention. As the petition of complaint was challenged by the OP2 developer, hence there is every reason to prove the testimonies of the petition of complaint since the burden of proof lies on the complainants. Regarding incomplete work, neither any evidence has been filed by complainant nor there was any prayer for appointment of any engineer commissioner. The plaintiff has to stand or fall on his/her own feet and they can not take the aid of the commission to collect evidences as approached in the complaint petition. Moreover there are a lot of elements in the complaint petition regarding alleged incomplete work which are anticipatory and hypothetical in nature not having much evidentiary value. As such no order for relief can be passed in favour of  the complainants on this account and at this stage.

As the complainants cannot be expected to wait for getting CC and the possession letter of the suit flat for indefinite period of time so an order should be passed in favour of the complainants to meet the ends of justice.

Be that as it may, keeping in view of the above observations and for finality of the litigation, we think that there is a deficiency in extending services on the part of OP1 and OP2 developers and accordingly we are constrained to allow the instant consumer case against OP no 1 on contest and against OP no 2 on ex-parte basis with costs.

Hence,

 It is

                                                                                          ORDERED

That the Opposite party no 1 and Opposite party no 2, jointly and severally, are directed to arrange for handing over of copy of completion certificate and possession certificate issued by the local authorities and hand over possession letter of the suit property to the complainants within 8 weeks from the date of this order.

That the Opposite party no 1 and Opposite party no 2, jointly and severally, are further directed to pay a litigation cost of Rs. 5,000/- (Rupees Five thousand) only to the complainants within 8 weeks from the date of this order.

In case of non-compliance of this final order by the OPs within stipulated period of time, the Complainants are at liberty to put the order into execution.

Thus the consumer case stands disposed of with above directions.

Note accordingly.

The Registrar of this commission is directed to upload this final order in www.confonet.nic.in at once

Dictated and corrected by me.

     Partha Kumar Basu

           Member