MRS. FIROZA KHATOON, PRESIDENT
The facts of the case as narrated by the complainant that she entered into an agreement for sale dated 21.08.2017 with the opposite party to purchase a flat being No.1A, on the first floor, Southern side measuring about 940 square feet super built up area at premises no.4, Principal Khudiram Bose Road, P.S.- Burtalla, Kolkata-700006 at a consideration of Rs.49,35,000/- (Rupees forty nine lakhs thirty five thousand) only. It is alleged that the opposite party has not completed certain works as mentioned below:-
- Boundary wall of the premises is not completed.
- Staircase lobby is open (without window) and grill beside the staircase not properly installed which may cause serious accident.
- Lift of the building not yet installs.
- Plastering of the insides and outside wall of the building is incomplete which cause damage of the flat.
- Painting of the building is not done.
- Top floor staircase room not covered as a result at the time of rain entire staircase is floated by the water.
- Roof is incomplete.
- Flooring on ground floor is incomplete.
- No C. C. certificate and even letter of possession certificate has not yet been given.
- The main gate key which is kept to the staff of the opposite party as a result the complainant has to face with a trouble in time of entering into the premises.
- Car parking space of the ground floor of premises in full of garbage. So, it is impossible for ingress and egress from these premises.
- Illegal and unauthorized car parking space has been given to the others.
- No electric meter box was provided.
The complainant submits that on payment of full consideration amount the opposite party being the developer/constituted attorney of the landowner executed a registered Deed of Conveyance dated 29.01.2019 in favour of the complainant though not completed the above mentioned work of construction. That a part, completion certificate of the building and letter of possession of the flat also not handed over to the complainant in spite of repeated demands. Such act of the opposite party tantamount to deficiency in service. Hence this case.
The opposite party by filing written version on 30.12.2021 admits that the complainant booked one flat as mentioned and on payment of full consideration amount a registered Deed of Conveyance was executed on 29.01.2019 in favour of the complainant and the complainant upon satisfaction took possession of the flat. The opposite party categorically states that the boundary wall of the premises is complete. The staircase window and grill are damaged due to lack of proper maintenance by the flat owners. Lift has already been installed. The attic room is complete. The work of the roof as per Kolkata Municipal Corporation guidelines has been completed. The completion certificate of the building is yet to be issued by the Kolkata Municipal Corporation. All other allegations are demanded by the opposite party. According to opposite party there is no deficiency in service on the part of the opposite party as such the complaint is liable to be dismissed.
Points for decision
- Is the complainant is a consumer in terms of the Consumer Protection Act, 2019 ?
- Is there any deficiency in service on the part of the opposite party as alleged ?
- Is the complainant entitled to get relief as prayed for ?
Decision with reasons
Point nos.1, 2 & 3
For the sake of brevity and convenience all the above three points are taken up together for consideration and discussion.
From the evidence of the parties and material on record we are of the opinion that the complainant is a consumer in terms of section 2(7) of the Consumer Protection Act, 2019.
It is admitted by opposite party in her written version that though the Deed of Conveyance was executed in favour of the complainant in respect of the flat mentioned in the second schedule of the said deed but the completion certificate of the building was yet to be issued by the Kolkata Municipal Corporation. Therefore, it is apparent on the face of the record that privity of contract between the parties in terms of Agreement for Sale dated 21.08.2017 has not ended. Prior to obtaining construction completion certificate from the Kolkata Municipal Corporation the opposite party executed the Deed of Conveyance and delivered possession of the flat in favour of the complainant.
Non issuance of completion certificate by Kolkata Municipal Corporation clearly indicates on the date of execution of deed of conveyance the construction of the building was not completed. Therefore, it can safely be presumed that at the time of handing over possession of the flat to the complainant, the work of construction was not fully completed by the opposite party.
In course of argument Ld. Advocate for opposite party submits that during pendency of the case, the opposite party obtained completion certificate from the Kolkata Municipal Corporation and it was already supplied to the complainant.
The complainant herself was present on the date of argument. The complainant herself admitted before this Commission that she received the completion certificate issued by the Kolkata Municipal Corporation in respect of the building during pendency of the case.
By filing written argument the complainant alleged that still the work of construction has not been completed by the opposite party.
The argument of complainant cannot be accepted as the complainant herself before the Commission admitted that she received the completion certificate issued by the Kolkata Municipal Corporation from opposite party.
No allegation has been made by the complainant against the Kolkata Municipal Corporation or with regard to completion certificate.
It is needless to point out that a completion certificate with regard to construction of a building, only issued by the Kolkata Municipal Corporation or concerned authority after completion of construction work as per sanction plan.
Having considered the discussion made above, we are of the opinion that there is deficiency in service on the part of the opposite party as the opposite party prior to giving possession or executing the Deed of Conveyance has not completed the work of construction of the building. The complainant was compelled to file this case. During pendency of the case completion certificate obtained by the opposite party. As such the complainant is entitled to get compensation in the case.
Therefore, all the three points are decided in favour of the complainant.
Fees paid correct.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed in part on contest with cost.
that the opposite party shall pay a sum of Rs.1,00,000/- (Rupees one lakh) only as compensation to the complainant within two months from the date hereof in default to pay simple interest @9% per annum till payment.
that the opposite party shall pay a sum of Rs.30,000/- (Rupees thirty thousand) only as litigation cost to the complainant within two months from the date hereof in default to pay simple interest @9% per annum till payment.
Dictated and corrected by me
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President
