Date of Filing: 08.05.2022

Date of Judgment: 18.8.2022

Mrs.  Sashi Kala Basu, Hon’ble  President

This complaint is filed by the complainant, Sri Abhrajit Choudhury,  under section 12 of the C.P Act, 1986 against the Opposite party namely Smt. Hema Aich (referred to as O.P), alleging deficiency in service on her   part.

The case of the complainant in short is that the owners namely Monojit Choudhury, Tapojit Choudhury, Sukla Choudhury and Satarupa Banerjee entered into a Development Agreement with the O.P on 12.4.2013. The O.P had also entered into another Development Agreement dated 23.9.2013 with Manjusree Bakshi to materialize the project as per the terms and conditions set-forth in the 2 agreements. Both the agreements were registered. A Power of Attorney was also executed in favour of the O.P on 12.4.2013 by the owners. The said Power of Attorney was also registered. On the basis of the Development Agreement dated 12.4.2013 and 23.9.2013 and also on the strength of power of attorney the developer had obtained the sanctioned building plan. The father of the present complainant namely Monojit Choudhury subsequently died on 14.5.2014 ,leaving behind the complainant and his younger brother namely Subhrajit Choudhury  who inherited the estates and properties of Monojit Choudhury including his allocation as stated in the Development Agreement. The  wife of Monojit Choudhury had also pre-deceased him. In the month of October, 2016 the O.P handed over the keys to the complainant in respect of the flat being no.S-7 in the 3^rd floor to the complainant and also handed over keys to his brother in respect of the flat being no.G-3  measuring an area about 530 sq.ft and 400 sq.ft respectively towards the allocation of their father. But no completion certificate has been obtained and thus was not handed over to the complainant. It has been learnt by the complainant that the O.P even after the death of the father of the complainant utilizing the power of attorney has executed the documents(deeds) in favour of different purchasers without obtaining any further power of attorney from the complainant or the other legal heirs of deceased Monojit Choudhury which is illegal and done wrongfully by the O.P. So, the present complaint has been filed by the complainant praying for directing the O.P to complete the project in all respect and to regularize all the additions and alterations and further to hand over completion certificate , directing the O.P to legalize and regularize al the documents in respect of the project including the documents relating to transfer in favour of the subsequent purchasers, to pay compensation of Rs.5 lac including the litigation cost.

            The O.P has been contesting the case by filing written version denying and disputing the allegations contending inter alia that the allocation of the complainant’s deceased father has already been handed over to the complainant and his brother and also handed over the possession of the allocation of the other owners as per Development Agreement. O.P completed the construction as per the sanctioned plan and after handing over the possession to the owners including the allocation of the deceased Monojit Choudhury submitted an application on 13.4.2017 for re-correction of the legal heirs in respect of the premises no. 14 before the Executive Engineer, Kolkata Municipal Corporation but the complainant raised objection. Thus, the O.P has prayed for dismissal of the case with cost.

            During the course of the evidence, both the parties have filed their respective evidence followed by filing questionnaire and reply thereto and ultimately argument has been advanced. BNA has also been filed by the parties.   

            So, the following points requires determination:

1. Whether there has been any deficiency in rendering service on the part of the O.P?
2. Whether the complainant is entitled to the relief as prayed for ?

Decision with reasons

            Both the points are taken up for a comprehensive discussion in order to avoid repetition.

            On perusal of the record it appears that there is no dispute that a Development Agreement was entered into between the owners including the father of the present complainant namely Monojit Choudhury on 12.4.2013 and 23.9.2013 . Subsequently a Power of Attorney was also executed in favour of the O.P. There is also no denial that after obtaining the sanctioned plan and raising of the construction of the building, the allocation of deceased Monojit Choudhury has been handed over to his 2 sons including the complainant. It is the specific case of the complainant that the 2 respective flats were handed over to him and his brother in October, 2016.

            The main dispute which has been agitated by the complainant is that even after the death of his father Monojit Choudhury , utilizing the power of attorney executed by him along with other owners, the O.P has executed the deed of transfer in favour of the different purchasers which is illegal. But in this context it may be pertinent to point out that the complainant has prayed for legalizing and regularizing of the documents indicating that he has prayed for legalizing those documents by cancelling of the deeds executed in favour of the respective purchasers which is beyond the jurisdiction of this Commission. For cancelling an instrument or declaring an instrument void and illegal, the competent Civil Court only has the jurisdiction.

 It further appears that the complainant has prayed for directing the O.P to complete the project but it is nowhere stated by him what are the construction work left or not completed. So, the said prayer as made by the complainant is vague and for the said reason the same cannot be allowed.

            However, complainant is entitled to completion certificate. Even though it is contended by the O.P that step was taken to obtain completion certificate as per the sanctioned building plan but objection was raised by the complainant, but in support of the said contention no document has been filed by the O.P that step was taken for obtaining completion certificate. Since the O.P being the developer is under the obligation in terms of the agreement to obtain completion certificate, complainant is entitled for a direction upon OP to handover completion certificate.

However in the given facts and situation of this case, we find no justification to pass an order as to compensation as prayed by the complainant, though he is entitled to the litigation cost.

Hence,

            ORDERED

That CC/242/2018 is allowed on contest.

The O.P is directed to hand over the completion certification in respect of the schedule property as per the Development Agreement dated 12.4.2013 and 23.9.2013 within 3 months from this date.

O.P is further directed to pay litigation cost of Rs.12000/- to the complainant within the aforesaid period of 3 months.