Hon’ble Mrs. Soma Bhattacharjee, Member
The complaint case no. 604/2017 was filed under section 17 of C.P. Act, 1986. It is valued at Rs. 48,60,000/-. The complainants, Smt. Sumona Mukherjee and Smt. Sutopa Mukherjee filed the complaint against Smt. Tara Devi, Opposite Party.
The complainants are purchasers of one flat being no. 3, BL- (C-1) on North West Side at 3rd floor at premises no. 3 Swami Vivekananda Road, P.S. Bally Howrah 700202. The OP is the owner and developer of premises no. 3 Swami Vivekananda Road, P.S. Bally Howrah 700202. The OP obtained a sanctioned plan over a land at the scheduled premises for construction of multi-storied building. The complainants while searching for a residential flat came to know of this premises. The OP agreed to sell one flat measuring about 1411 sq. ft. super built up area, situated on the 3rd floor south west north side being flat no. 3 (BL- C1) along with undivided proportionate share of land at a total consideration price of Rs. 38,60,000/-.
The agreement for sale was signed on 01.07.2015. Complainants paid part consideration to the OP by two cheques as follow:
- Cheque no. 465791 dt. 28.05.2015 for Rs. 1,25,000/- SBI, Salt Lake Branch
- Cheque no. 759593 dt. 28.05.2015 for Rs. 1,75,000/- SBI Park Circus Branch
totalling Rs. 3,00,000/- (Rupees three lakh) only. The balance consideration amount was Rs. 35,60,000/-.
The complainants paid the balance consideration amount by a draft of State Bank of India vide draft no. 213557 dt. 19.11.2015 for Rs. 35,60,000/-. On receipt of this amount the OP executed a deed of conveyance in favour of the complainants on 20.11.2015. It was registered before A.D.S.R Kolkata vide Book no. 1, Volume no. 1901-2015, pages from 160525 to 160561, being no. 190109031 for the year 2015. The opposite party after execution of deed of conveyance delivered possession of the flat in question to the complainants on 20.11.2015.
The OP after execution of the deed of conveyance delivered possession of the flat to the complainants on 20.11.2015. However, completion certificate of the building was not handed over to the complainants.
Cause of action of this complaint case arose on 01.07.2015 being the date of execution of agreement for sale and on 20.11.2015 the date of execution of deed of sale. On 01.06.2017 the complainants sent a legal notice but till the date of filing of the complaint completion certificate was not provided by the OP for which there is continuing cause of action.
The complainants filed an amended copy of complaint on 01.04.2019 by which they prayed for deletion of the sentence of earlier prayer of “remove the defective/illegal construction of premises no. 3 Swami Vivekananda Road, P.S. Bally, Howrah” from the prayer clause.
The argument of the Ld. Advocate for the OP is that several flat owners of the same building have already obtained mutation certificate in absence of completion certificate of the scheduled building. The OP has paid all requisite fees and applied for occupancy certificate from the Howrah, Municipal Corporation but for reasons beyond her control the OP could not obtain the completion certificate from Howrah, Municipal Corporation till date.
Ld. Advocate for the complainants cited the judgment of the Hon’ble Supreme Court in 2022 (1) CPR 429 (SC). It appears from head note: “(A) Consumer Protection Act, 1986 - Section 24-A [Consumer Protection Act, 2019- Section 69] - Limitation Act, 1963 - Section 22 - Consumer Complaint – Limitation - Continuing cause of action - Continuing wrong in present case is failure to obtain occupancy certificate-Owing to failure of respondent to obtain certificate, there has been direct impact on members of appellant in terms of payment of higher taxes and water charges to municipal authority - This continuous failure to obtain an occupancy certificate is a breach of obligations imposed on respondent under MOFA and amounts to a continuing wrong - Appellants are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation. (Paras 18 and 19)
(B) Consumer Protection Act, 1986- Section 2 (1)(d) [Consumer Protection Act, 2019- Section 2(11)] – Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act 1963 – Sections 3 and 6- Consumer Complaint – Maintainability- Respondent was responsible for transferring title to flats to society along with occupancy certificate - Failure of respondent to obtain occupancy certificate is a deficiency in service for which respondent is liable - Members of appellant society are well within their rights as ‘consumers’ to pray for compensation as a recompense for consequent liability (such as payment of higher taxes and water charges by owners) arising from lack of an occupancy certificate. (Paras 18 and 22).”
Heard the argument of both parties. Considered the materials on record, evidences and argument.
The points for decision are as follows:
- Whether the complainant is a consumer?
- Whether there is a deficiency in service?
- Is the complainant entitled to get any relief/s?
Since the complainants have paid a consideration money of Rs. 38,60,000/- to the OP they are consumers in terms of Section 2(1)(d) of C.P. Act, 1986.
The OP has been negligent and deficient in service in not issuing completion certificate to the complainants.
Since, she is deficient in service the complainants are entitled to relief as prayed for.
Ordered
The complaint case being no. CC/604/2017 is allowed on contest. The Opposite Party Smt. Tara Devi is hereby directed to issue completion certificate to the complainants in respect of flat nos. 3, BL- (C-1) on North West Side at 3rd floor at premises no. 3 Swami Vivekananda Road, P.S. Bally Howrah 700202 by 3 months of pronouncement of this order. The Opposite Party is directed to pay compensation to the tune of Rs. 5,00,000/- to the complainants for harassment and mental agony and litigation cost of Rs. 50,000/- within 90 days from the date of pronouncement of this order, failing which, the complainants will be at liberty to put this award into execution.
CC/604/2017 is, thus, disposed of.
