(Passed on12/10/2022)

Passed by Shri Atul D. Alsi, Hon’ble President 

1.         Complainants filed complaint case against the O.Ps.  for  non completion of flat  as per construction plan and failure  to give  completion  certificate  of Municipal  Corporation  and thereby  claiming  compensation of Rs. 50,000/- towards  mental  torture  and Rs. 10,000/- towards cost of litigation.

2.         Story in short is as under:-

            The  complainant  entered  into  contract  to purchase  a flat  at “Dhanraj Residency”  at Ekori Ward, District Chandrapur to be constructed by the  O.Ps. and paid Rs. 9,30,000/-. The complainant raised loan  of Rs. 6,00,000/- from the Punjab National Bank, Chandrapur and paid Rs. 2,00,000/- on 11/05/2007 and Rs. 50,000/-  on 21/05/2007 and remaining  amount of Rs. 50,000/- which was paid  on 28/07/2007. The complainant has also paid Rs. 25,000/- towards expenses for registration of sale deed. The balance amount after execution of sale deed Rs. 7,900/- has been with O.P. No. 3. The O.P. Nos. 1&2 who are the owners of the apartment executed the sale deed in favour of the complainant on 21/07/2007. The copy of sale deed is filed on page No. A-7 along with complaint.  Due to good relations between the parties the agreement to purchase the flat was oral agreement. The  O.Ps. failed  to execute   of written  agreement of sale  and also failed  to  deliver the necessary  permission  for construction  of apartment  along with  building  completion certificate. The complainant was to perform Puja on the occasion of Muharth. Hence, the complainant took possession of the flat; in  June-2008 and shifted  in the flat in July-2008   but the O.Ps. failed to  complete the flat as per  promised  and there were defects in the constructions. There was leakage in Kitchen as well as in  gallery. The quality of doors and windows   and tiles are of poor quality. The doors and windows are not polished and paint. The area of flat is not as promised. The complainant inspected the flat from Architect and license engineer Mr. Pravin Degamwar and found there is defects in construction. The report of Architect is filed on record. The complainant   thereafter issued legal notice for defects in construction and issuance of Completion Certificate but O.Ps. failed to  comply the notice, therefore, the petition is filed.

3.         The O.P.Nos. 1&2 filed reply and denied all the allegations against them and submitted in reply that on 21/07/2007 the O.Ps. executed the sale deed of the flat  in favour of the complainant. The O.P. Nos. 1&2 admitted that there was no written agreement to purchase the flat. The other 15 to 16 flat owners are enjoying the residence of their flats and   there were no complaints in respect of construction and defects of flats.  The complainant failed to pay necessary maintenance charges of lift as the other flat owners are regularly in the payment.  As per oral agreement, it is agreed between the parties that the complainant on his own shall construct the flat and therefore the O.Ps.  executed only sale deed for  the undivided  share  in favour  of the complainant. The complainant had examined the sanctioned lay out and Commencement Certificate of building and thereafter constructed the flat as per his choice.  The complainant has himself constructed the flat, therefore, the O.Ps.  are not responsible  for  any  deficiency in  constriction. The complainant has filed false report of Architect for poor construction on record.  The complainant has filed false complaint against the O.Ps. The complainant has paid Rs. 3,00,000/- to the O.Ps. therefore, the O.Ps. has executed  the sale deed for  undivided share of flat in favour of the complainant.  The complainant paid expenses for construction of the flat directly to the person who constructed  the flat. Therefore, the O.Ps.  are not responsible for the  compensation  to be  payable  towards poor quality of constructions. Hence, the case is deserves to be dismissed with cost.

4.         The O.P. No. 3 filed reply. The O.P. No. 1 is the wife of O.P. No. 3 and  O.P. No. 2 is son of O.P. Nos. 1 and 3. The O.P. No. 3 is the builder and who used to construct the building to sale  the apartment to the purchaser.  The O.P. No. 3 constructed the “Dhanraj Residency” at Ekori Ward, District Chandrapur on the plot owned by the O.P. Nos. 1&2.  On 21/07/2007 the O.Ps.  has registered  sale deed in favour of the complainant  for   undivided  share of   land in favour of the complainant. There was no written agreement of construction of flat but orally agreed  to execute the sale deed of undivided share of land in favour of the complainant. The O.Ps. is not  bound to  give Completion  Certificate  as there is no  written contract  of construction of flat between the parties. On June-2008 the  complainant  forcibly  and unauthorizedly  entered  into  flat without  any  authority  or permission  as of trace  passer  and hence, there  is  no right  to claim the incomplete  construction . The report of Architect Mr. Pravin Degamwar is false and vexatious. The complainant has filed false complaint   for incomplete and poor construction and failed to construct the area of 1095 Sq. fts.  as agreed for the  consideration  of Rs. 9,30,000/-. Therefore, the complaint deserves to be dismissed with cost.

5.         Adv. Mr. Kullarwar, Counsel for the complainant  has submitted that  the complainant  has paid  Rs. 9,30,000/- towards  consideration of flat at “Dhanraj Residency”  through  loan amount and  remaining  amount  in cash  for  which  the copy of receipts  are filed on record bearing  annexure No. A-4 and  A-5.  The O.Ps. has executed the  sale deed for undivided  share of land for the  amount of Rs. 1,25,500/- while  sale deed No. 4382/2007 in favour of complainant.  As per  report of Architect  Mr. Pravin  Degamwar dated  09/11/2008 which is filed  on record  at annexure . A-8 which shows that there is leakage in Kitchen and construction is incomplete and of poor quality. After receipt of legal notice the O.Ps. failed to comply  the notice. Hence, the petition is filed.

6.         The counsel for the O.Ps.  argued that  after  receipt of Rs. 3,00,000/- on 21/07/2007 the O.Ps. executed sale deed of undivided share of apartment in favour of the complainant  against  the price  of Rs. 1,25,000/- and  remaining  amount of Rs. 1,75,000/- towards cost of  construction  in RCC and  remaining  construction of flat has to be  carried   at  expenses of  the complainant. The complainant  has himself  constructed  the flat  through  his personal  contractor  and paid  necessary  charges  directly  to them. The poor quality of construction the complainant is himself liable. The report of Architect for poor construction is filed on record is false and not according to the norms, therefore it is not acceptable.  There is no written agreement of purchase of flat between the parties.  The complainant has not paid maintenance charges of building as well as lift. The complainant has filed false complaint; therefore, it deserves to be dismissed with cost.

7.         We have heard learned advocate for the complainant as well as O.Ps.  We have also gone through the written notes of argument filed by both the parties on record. On the basis of the facts stated above  only point  which  arises  for our determination  is as  under  with  our finding recorded  thereon and reasons  to follow: 

REASONING

8.         The complainant paid  Rs. 9,30,000/-  by way of  loan  through  Punjab National Bank and remaining  amount in cash for the  purchase of F-2 flat from “Dhanraj Residency”. The land owned by the O.P. Nos. 1&2 and apartment to be constructed  by the O.P.No. 3. Therefore, the complainant is  the consumer of the O.Ps.

9.         It is  a duty of the builder  to provide  the Commencement  Certificate   and  Completion Certificate  of building  along with  sanctioned  plan from the Competent  Authority. These   documents  are mandatory  for the  flat purchaser  to make   necessary  entry  of  ownership  at Nazul  Department  of Government of Maharashtra.  It is mandatory  duty  on the part  of the builder  to provide the Commencement and  Completion  Certificate  of building  along with  sanctioned  plan to the  purchaser  of flats  in the  apartment.  The complainant  requested  and  issued  notice  through  advocate  Mr. Kullarwar on 11/11/2018  to submit the  completion certificate  but  the O.Ps. failed  to provide  the  mandatory  documents  to the  complainant  and  failed to file those documents  on  record.  The complainant  inspected  his apartment  through  Architect  Mr. Pravin  Degamwar for  short comings  in the  construction  of the flat. After receipt  of  consideration  amount  non submission of completion  certificate  of apartment  with  incomplete construction  by the O.Ps. does amount to deficiency  in service. Therefore, the O.Ps. are  liable to  provide  the  Completion  Certificate  of the apartment  from the  competent  authority  for  the “Dhanraj Residency” in favour of the  complainant  along with  Rs. 50,000/- towards cost of   incomplete  construction  and  mental  torture along with  Rs. 10,000/- towards  cost of litigation as per  following  order.  

ORDER

i.          The complaint No. CC/02/2009 is partly allowed.

ii.          The O.P. Nos. 1 to 3  are  directed to provide  the  completion  certificate  of the apartment  from the  competent  authority  for  the “Dhanraj Residency” in favour of the  complainant.

iii.         The O.P. Nos. 1 to 3 are further directed to pay to the complainant Rs. 50,000/- towards cost of  incomplete construction and mental torture along with Rs. 10,000/- towards cost of litigation

iv.        Copy of order  be furnished to both the parties free of cost.