Judgment : Dt.8.9.2017
Shri S. K. Verma, President.
This is a complaint made by one Mr. Kailash Mondal, son of Biswanath Mondal, residing at Mohan Garden, ¾, Sauri Kamal Gazi, Narendrapur, Kolkata-700 103 against Rajkumar Gupta, son of Late Ghashiram Gupta, Director of M/s Sitaram Ghashiram Construction Pvt. Ltd., having its registered office at 75/3, Sultan Alam Road, P.S.-Charu Market, Kolkata-700 033, OP No.1, Smt. Sushila Bala Barui, wife of Sri Durgapada Barui, OP No.2, Sri Dhirendra Nath Barui, OP No.3, Sri Sachindra Nath Barui, OP No.4, Sri Ramendra Nath Barui, OP No.5 – all are sons of Durgapada Barui of 18/3, Banerjee Para Road, P.S – Haridevpur, Kolkata-700 041, The Commissioner, Kolkata Municipal Corporation, 5, S.N.Banerjee Road, Kolkata-700 013, OP No.6 and The Executive Engineer, Building Department, Kolkata Municipal Corporation, South Suburban Unit, Behala, Kolkata-700 034, OP No.7, praying for a direction upon the O.P., particularly OP No.1, to supply or hand over ‘Occupancy Certificate’ in respect of the schedule A property after collecting from the office of Kolkata Municipal Corporation, and a direction upon the OPs, particularly OP No.1, to pay compensation of damage to the tune of Rs.14,931/- and from December, 2013 till handing over of ‘Occupancy Certificate’ and also a direction upon the OP, particularly OP No.1, to give compensation of Rs.14,931/- per month for non-supply of ‘Occupancy Certificate’ and any other relief or reliefs which the Forum may pass.
Facts in brief are that Complainant purchased a flat covering 745 sq.ft. super built up area from the OP No.1. OP Nos.2 to 5 transferred the schedule flat to the Complainant. Complainant, further, has stated that at the time of purchase, OP assured Complainant that he will give ‘Occupancy Certificate’ in respect of the flat within six months. Complainant has also stated that relying on such assurance, Complainant purchased the flat No.C-1 situated at ground floor on the four storied building. Complainant submits that OP No.1 is a developer and after showing sanction plan sold the flat to the Complainant. Complainant requested the OP No.1 to remove the barrier in access passage but OP No.1 did not do it. Complainant requested the OP No.1 on several occasions to issue ‘Occupancy Certificate’. But OP No.1 did not oblige. So, Complainant filed this case.
OP No.1 did not contest the case by filing written version and so the case is heard ex-parte against OP No.1.
OP Nos.6 & 7 contested the case and filed written version. It is submitted by OP Nos.6 & 7 that the instant complaint is filed by the Complainant alleging deficiency in services against OPs of Kolkata Municipal Corporation. Further, they have stated that they are working under Kolkata Municipal Corporation. They have also stated that completion certificate has not been delivered by the Kolkata Municipal Corporation. But, till date no application for completion certificate before the authority has been filed. Kolkata Municipal Corporation inspected the building and found that the building entrance lobby is 900 mm wide for ingress and egress of the southern side of the flat at the ground floor. Developer did not apply for completion certificate and so no certificate was issued. Further, these OPs have stated that other facts are matter of record.
Decision with reasons
Complainant filed a petition for treating the complainant as affidavit-in-chief and the prayer was allowed. Thereafter, OPs did not file questionnaire. OP Nos.6 & 7 stated that they will not file evidence. So, it appears that except OP Nos.6 & 7 none of the OPs contested this case.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that Complainant has prayed for supply of ‘Occupancy Certificate’. Further, it appears that a xerox copy of the sale deed is filed, which reveals that in 2nd paragraph in page No.5 the consideration paid by the Complainant that means purchaser to the developer Rs.24,90,000/- i.e. this Forum ceases its jurisdiction to pass any order or to provide any relief to the Complainant.
Accordingly, we are of the view that the Complainant is not entitled to the relief of a payment upon the OP No.1 for occupancy certificate and for other compensation which has been sought for.
Ld. Advocate for Complainant referred to a decision of NCDRC in order to fortify his contention that completion certificate is the obligation of the developer to give to the purchaser. There is no doubt in it. But, since this Forum loses its jurisdiction the order upon the OP No.1 for a direction to handover ‘Occupancy Certificate’ cannot be granted.
Hence,
ordered
CC/114/2017 and the same is dismissed on contest against OP Nos.6 & 7 and ex-parte against other OPs.
