Date of Filing: 28/01/2022

Date of Judgement :  02/01/2024

Sri Sudip Niyogi, Hon’ble President

                                                               BRIEF FACTS

Complainants, in order to buy one flat and one car parking space together with the right to use and enjoy the common areas etc.  as mentioned in the schedule to the complaint, had entered into an agreement on 16/11/2019 with the OP, who had undertaken to develop one G+3 storied building at premises No. 216/3 Madurdaha within P.S. Tiljala and the consideration was fixed at Rs.43,50,000/- Subsequently, they paid the entire amount of consideration and thereafter one deed of conveyance was executed and registered in their favour on 6/2/2020 and possession of the said flat was also delivered.  But the possession of the car parking space was not handed over.  They also alleged that the common caretaker room, as shown on the ground floor on the north-east portion in the annexed site plan in the said deed of conveyance was not delivered to the flat owners including the complainant and OP claimed that he would use the said caretaker room as his office.  Apart from this, the completion certificate of the said flat was also not delivered.  They also issued notice through their advocate requesting the OP to deliver possession of the caretaker room on the ground floor and also to deliver the completion certificate, car parking space etc.  One reply was issued through the advocate of the OP.  But nothing was still done.  So, this case was filed by the complainants seeking several reliefs.  OP did not appear to contest the case.  So, it was heard exparte.

Now, the point for consideration is, whether the complainants are entitled to any relief(s) in this case?

                                                               FINDINGS

On the Prayer of the complainants, the petition of complaint was treated as evidence on their part.  They also produced the copies of the documents namely – deed of conveyance in their favour, Advocate’s letters etc.

What we find, the complainants have already been given possession of their flat on payment of the consideration and also by way of execution of a deed of conveyance in their favour, on 6/2/2020.  It is found that in the petition of complaint, complainants prayed for providing a copy of the completion certificate, possession of the common caretaker room and renewal of elevator.  But during argument, it was made clear by the complainants that they are not pressing about the prayer for renewal of elevator and they only prayed for completion certificate and the common caretaker room.

It is found that, in the letter of reply issued on behalf of the OP, it was claimed that the issuance of completion certificate is under process since 13/11/2019 when application was made for the same with the concerned authority.  Though OP claimed to have applied for the completion certificate, but it is surprising to see that since 2019 after so many years have elapsed, but without getting any completion certificate.  This shows, there may be laches on the part of the OP to procure it from the concerned authority and handed over the same or the copy thereof, to the complainants.  Regarding the common caretaker room in the ground floor, it was said that the same was not mentioned in the sale deed in favour of the complainants.

On the other hand, Ld. Advocate for the complainants claimed that the common caretaker room is the part of the amenities attached with the flat sold by the OP.  As the same was not handed over to the complainant or for that matter, to the other flat owners, they are not being able to use the same for the purpose for which it was made.  This apart, it was said that this common caretaker room is also shown in the sketch map attached with the deed of agreement.  So, OP cannot withhold delivery of possession of the said caretaker room and use for himself.  OP failed to refute the aforesaid contention of the complainants.

We find from the deed of sale executed and registered in favour of the complainants on 6.2.2020, that it had been agreed between the complainants and the O.P. that the scheduled flat alongwith car parking together with proportionate undivided share in the land and common areas, facilities and amenities would be sold.  And accordingly the said deed of conveyance was made in favour of the complainants.  Not only that, the site plan annexed with the said deed of sale specifically show the caretaker room alongwith flat etc. 

Needless to mention it is, the caretaker room was made for the purpose of and also for the benefit and security of all the flat owners in the building.  The right to use the said caretaker room falls within the meaning of enjoyment as embedded in the terms `common areas’, `facilities’ and `amenities’ etc. which were used in the deed.  So, the developer had no right, but to deliver possession of the same to the flat owners.

So, following the unchallenged testimonies of the complainants, we find that complainants are entitled to the relief(s) in this case and they are also entitled to cost of litigation.

Accordingly, it is

                                       ORDERED

That the instant case is allowed exparte against the OP.

OP is directed to deliver the possession of the caretaker’s room/booth as mentioned/shown in the site plan attached with the sale deed dt. 06.02.2020 in favour of the complainants so that they alongwith the other flat owners in the building can use and get the benefits of the said room fulfilling the purpose for which it was made.

OP is also directed to supply completion certificate or a copy thereof to the complainant.

OP is also directed to pay cost of litigation of Rs.6,000/- to the complainant.

All the aforesaid directions are to be complied within 45 days from the date of this order, failing which, the complainant shall be at liberty to proceed in accordance with law.

Dictated and corrected by me

PRESIDENT