Judgment : Dt.16.8.2017
This is a complaint made by one Shri Hironmoy Das, son of Late Tulsi Charan Das, residing at Block-T, 3A, 3rd floor, Baisnabghata Patuli Township, P.S.- Patuli, Kolkata-700 094 against – (1) Shri Subhash Chandra Ghosh, residing at 1/1, Chittaranjan Colony, House of Late Anil Chakraborty, Baghajatin, P.S.- Jadavpur, Kolkata- 700 032, OP No.1 and (2) Shri Tushar Kanti Majumder, son of Late Brojeswar Majumder, 30A, Jadav Ghosh Road, Sarsuna, P.S.- Thakurpukur, Kolkata-700 061, OP No.2, praying for a direction for arranging to provide the completion certificate to the petitioner, for the residual works, payment of Rs.85,000/-, make payment of Rs.13,680/- for expenditure incurred by the petition for completion of works and make payment of Rs.1,61,733/- 10% interest for 16 months which Complainant lost, make payment of Rs.1,28,205/- being house rent paid by the Complainant for occupation of Govt. flat during the period 1.3.2013 to 31.1.2016 and payment of Rs.1,00,000/- for harassment and mental agony and Rs.10,000/- as litigation cost.
Facts in brief are that as per agreement dt.20.11.2012, the schedule date of physical possession of the flat was fixed within 28.2.2013. OP No.1 did not complete the construction work within 28.2.2013 and so Complainant served a letter with a request to complete the construction work and hand over the physical possession as because Complainant was residing in a rented accommodation. OP No.1, even after receiving the 98% of the consideration money delayed the construction work and ultimately the Complainant took delivery of the incomplete flat on 2.7.2014, after 16 months of the schedule date of physical delivery of possession. OP No.1 executed the deed of assignment instead of deed of sale violating the condition of the agreement dt.20.11.2012. Moreover, OP did not provide six items violating the agreement – (1) two exhaust fans in two toilets, (2) four taps in two toilets, (3) Godrej brand lock in entrance door, (4) one coat premier in inside wall and ceiling, (5) mosaic flooring of stair case, (6) illumination of front side and back side of the boundary area of the building and the Complainant could not shift from the rented Govt. Quarter and had to continue to pay monthly rent of Rs.3,663/- p.m. Complainant having no other alternative after investment of his entire retirement benefit served a letter dt.30.9.2014 through Ld. Advocate Sudhansu Kumar Dutta. OP No.1 prevented the petitioner to get access of the flat. Thereafter, through his Advocate sent a letter dt.18.3.2015. But, OP did not pay any heed to that. So, Complainant filed this case.
OP No.1, Subhash Chandra Ghosh filed written version and denied all the allegations of the complaint. Further, OP No.1 has stated that Tushar Kanti Mazumder is neither as promoter nor there is any development or joint venture agreement in existence. There exists no relationship between Complainant and OP No.1. OP No.1 has further stated that he is also a retired Govt. employee and he was friendly with Complainant and they used to discuss for their independent residential units and enjoy life and Complainant paid a token sum and in terms of agreement, it was decided that Complainant shall pay the balance Rs.10,90,000/- to the OP No.1 as per the payment schedule, but, Complainant did not pay. Further, Complainant has state that the allegations brought are not the part of the agreement. OP approached for CC. But, KMC did not hand over it. So, OP is not in a position to hand over the Completion Certificate to the Complainant.
OP No.2 also filed written version. Further, OP No.2 has stated that this proceeding is bad for non-joinder of OP, allegations are of baseless and false. Further, OP No.2 has stated that the relief sought by Complainant are not at all justified. So, this OP No.2 has prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief to which OP filed questionnaire and Complainant filed affidavit-in-reply. Similarly, OPs filed affidavit-in-chief to which Complainant filed questionnaire and OPs filed reply.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint, it appears that Complainant h as prayed for arranging for providing the Completion Certificate to the Complainant.
In this regard, it is submitted by OPs that they had approached the KMDA. But they could not procure the Completion Certificate. Further, their contention, that they are not developer and so the Complainant has no right to ask Completion Certificate from them.
The second prayer of Complainant is completing residual work or payment of Rs.85,000/- as cost.
In this regard, Complainant has stated in his complaint petition and mentioned that Complainant was compelled to complete the six points i.e. and spend Rs.85,000/-. However, on perusal of the agreement, it appears that there is no such terms and conditions where OP No.1 was bound to provide the six items as mentioned in the complaint. Accordingly, we are of the view that the claim of Rs.85,000/- is not justified.
Third prayer as prayed for payment of Rs.13,680/- for expenditure incurred by the Complainant for completing the works at Sl. No.1, 3 & 4, as already stated, the agreement does not reveal any type of terms and conditions and so the claim of Complainant appears to be groundless.
Complainant has also claimed Rs.1,61,733/- as 10% interest for 16 months. In this regard, it is stated that if at all the agreement for sale is accepted, it is an agreement between two individuals and this Forum does not have any jurisdiction upon any agreement entered into between two individuals. Such agreements are to be specifically enforced by filing suit before the Civil Court.
Accordingly, the question of allowing this prayer also does not arise. Furthermore, it appears that a conveyance deed was made in favour of the Complainant. But, that deed is not a sale deed, but a deed of assignment.
We are of the view that anything related with the deed of assignment or its modification is not covered under the Consumer Protection Act. This dispute has to be taken before the Civil Court.
As such, we are of the view that the prayers made by the Complainant are groundless.
Complainant has also prayed for compensation and litigation cost. Since Complainant is not a consumer for the purpose of this complaint and this Forum does not have any jurisdiction to deal with such dispute, such deed is a deed of assignment, we are of the view that the question of allowing compensation or litigation cost do not arise.
Hence,
ordered
CC/418/2016 and the same is dismissed on contest.
