Hon’ble Mrs. Soma Bhattacharjee, Presiding Member
CC/750/2017 has been filed by Mrs. Rupa Debnath, complainant against Sri Arabinda Samanta, Sri Rabindranath Samanta, owners/ developers, Chairman Uttarpara- Kotrang Municipality u/s 17 of C.P. Act, 1986 and the case is valued at Rs. 42,64,119/-.
The gist of the case is as follows:
The complainant purchased a flat being no. 302 at Sundaram Apartment, Uttarpara Kotrung Municipality, being premises no. 64B, G.T. Road, P.O. Bhadrakali, District- Hooghly measuring about 1290 sq. ft. approx in the scheduled property at a consideration of Rs. 31,65,500/-. The flat was registered on 22.09.2014 and the office of the ADSR Serampore Hooghly, West Bengal.
The complainant alleged that in the agreement for sale the developer had agreed to sell a flat measuring 1300 sq. ft at the rate of Rs. 2450 per sq. ft. But he actually sold a flat measuring 1290 sq. ft. The developer has also taken service tax from the complainant.
The purchaser has alleged that some clauses of deed of conveyance were incorporated in the deed of conveyance which were contrary to the sanctioned plan and therefore illegal. The deed of conveyance was prepared by OP nos. 1 & 2 and it was not approved by the purchasers before registration. Construction has been made in deviation of the sanctioned plan as alleged by the complainant.
The CC was filed before DCDRC Hooghly but on the grounds of pecuniary jurisdiction the matter was disposed of on 24.01.2007. Then the complainant filed CC/750/2017 before SCDRC. Notices were duly served upon OP nos. 1 to 3. All the OPs entered appearance and filed W.V. However, none of the OPs filed evidence on affidavit.
The complainant has purchased flat no. 302 on the 3rd floor of the suit premises which is on the South Eastern side with a total area of 1290 sq. ft. approximately. The OPs are the landowners / developers and have sold the flat at the consideration value of Rs. 31,60,500/-. The ADSR Serampore has assessed the market value of the said flat at Rs. 31,60,500/-. The said flat was registered on 22.09.2014 and the office of the ADSR Serampore Hooghly vide book no. 1 – 07129 of 2014. After execution and registration the complainants were handed over possession of the said flat.
The complainant noticed that the car parking space in the ground floor was blocked and unauthorised construction had been made in the area. No completion certificate has been handed over to the complainant by the developer for which the complainant is unable to apply the mutation for the said flat. The developer charged a service tax of Rs. 79,119/- from the complainant which was not part of the agreement.
The Opposite Parties did not appear for final hearing on four consecutive dates, as a result of each the complainant was heard ex parte.
Considered the W.V filed by the OP and all other materials in the record. There is no inconsistency in the evidence filed by the complainant. On consideration it is cleared that the complainant is a consumer since she paid consideration value for purchasing the suit flat from the OP / developers. However, the OP nos. 1 & 2 are negligent and deficient in service since completion certificate is yet to be handed over to the complainant although the said flat was registered on 22.09.2014. As observed by the Hon’ble Supreme Court in 2022 (1) CPR 429 (SC)...... “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....”
Accordingly the complainant is a consumer since she paid consideration value for purchasing the suit flat from OP nos. 1 & 2 / developers. However the OP nos. 1 & 2 are negligent and deficient in service since completion certificate is yet to be handed over to the complainant. The complainant is therefore entitled to relief as prayed for.
CC/750/2017 is allowed in contest.
It is ordered that
(1) The OP nos. 1, 2 and 3 are jointly and severally directed to provide completion certificate to the complainant within a period of 60 days from date of order.
(2) OP nos. 1 and 2 are jointly and severally directed to ensure free and easy access into the building by the complainants, by removing all obstructions within a period of 60 days from date of order.
3) OP nos. 1 and 2 are jointly and severally directed to pay compensation of Rs. 1,00,000/- for harassment to the complainant.
If the Opposite Parties fail to comply with the order from 60 days of this date, the complainant will be at liberty to put the award into execution.
CC/750/2017 is disposed of accordingly.
Free certified copies of the order be issued to all parties.
