SHYAMAL KUMAR GHOSH, MEMBER
The instant case has been filed by the Complainants against the OPs praying for certain reliefs which are reproduced as follows :
- To deliver the completion certificate issued by the Kolkata Municipal Authority to the complainants/petitioners.
- To pay Rs. 10,00,000/- ( Rupees ten lakh) only as compensation to the complainants for metal sufferings and harassments.
- To pay Rs. 10,000/- as litigation cost to the complainants.
- Interest and penalty.
- To pass such other order or orders as your Honour may deed fit and proper.
Concisely narrated, the facts during to the filing of the complaint are that the OP No. 1 is a developer and OPs No. 2 to 6 are the OPS/Landowners. The Complainants have searched for a dwelling accommodation for their own use and to that effect they have contacted with OP No. 1/developer.
Upon careful perusal of the development agreement between the OP No. 1/developer and the OPs No. 2 to 6/landowners and having satisfied with the registered General Power of Attorney executed by the OPs/landowners, the complainants have entered into an oral agreement for purchasing of one self-contained residential flat measuring area of 1000 sq.ft. (super built up area) with the OP No. 1/developer at a total consideration amount of Rs.31,00,000/-. The execution and registration of the deed of conveyance has already been made in favour of complainants and delivery of the physical possession of the said flat has already been made in their favour . But the OPs have failed to supply the completion certificate to the complainants till date. On several occasions, the complainants have requested the OPs to deliver the completion certificate to the complainants but they did not pay any heed over the said matter. The matter has been raised before the Consumer Affairs Department, Govt. Of West Bengal on 10.05.2018 and to that effect one complaint has been filed by the complainants. But the aforesaid dispute between the parties has not been settled through mediation in the aforementioned office. Thereafter, the complainants, finding no other alternatives, have requested the OPs to deliver the completion certificate in order to avail the benefit of the legal possession, lawful title, interest, etc. of the said flat. But they did not pay any heed. At last the complainants have sent a lawyer’s notice dated 12.10.2018 addressed to OP No.1 /developer with a request to supply the copy of completion certificate. But no fruitful reply /result has come out from his end causing clear gross negligence and deficiency in service on the part of OPs and as such the complainants have rushed to the Commission for getting proper relief/reliefs as prayed for against the OPs.
The OP No. 1 contested this case by filing written version stating inter-alia that when the consumer accepts the possession of the subject flat with open eye without any precondition, the complainant cannot be treated as consumer as per C.P. Act,1986 and the relationship between the developer and consumer comes to an end. By filing written version, OP No. 1 has also stated that the instant petition is totally vexesus and frivolous and as such said petition of complaint should be dismissed with exemplary cost.
By virtue of order no. 10 dated 24.09.2019 the case has been fixed for exparte against the OPs No. 2 to 6 as despite allowing more than one opportunity they have failed to file their written version in order to contest the instant consumer case.
Ld. Advocate appearing for the complainants has fairly submitted that the total consideration amount of Rs. 31,00,000/- has already been paid to the OP No. 1/developer in respect of the flat measuring area more or less 1000 sq.ft. (super built up) alongwith all facilities , amenities together with proportionate share undivided impartible right, title and interest.
The deed of conveyance in favour of the complainants has already been executed and registered on 30.06.2016. The complainants have already received the physical possession of the said flat but till date no completion certificate has been delivered to the complainants. Ld. Advocate has also argued that on several occasions, even by sending lawyer’s notice to the OPs, the complainants have requested the OPs to deliver the completion certificate to the complainants but the OPs did not pay any heed over the said matter. There is clear gross negligence and deficiency in service on the part of the OPs and accordingly the Ld. Advocate has prayed for proper reliefs against the OPs.
None appeared on behalf of the OPs at the time of final hearing.
We have heard the Ld. Advocate appearing for the complainants at length and in full.
We have considered the submission of the Ld. Advocate.
We have meticulously perused all materials available on the record.
The final hearing has been concluded.
We have carefully perused the General Power of Attorney wherefrom it appears to us that the landowners /OPs No. 2 to 6 have entrusted all legal rights upon OP No. 1 /developer namely Shri Debashis Barat and they have declared him as a lawful attorney for them.
In pursuant to the aforesaid General Power of Attorney, it is crystal clear that the landowners/executants do hereby appoint constitute and nominate Shri D. Barat as a lawful attorney in respect of promotion and development by raising multi-storied building on the proposed land as per rules and regulations of the Kolkata Municipal Corporation and they have entrusted all powers upon OP No. 1 /developer in respect of selling , conveying and transferring the developer’s allocation exclusively of the building to be constructed.
We have carefully perused the Advocate’s letter dated 12.10.2018 wherefrom it appears to us that on several occasions, the complainants have requested the OP No. 1 /developer to deliver the completion certificate in order to avail legal possession, lawful title and interest of the subject flat. There is no such objection in written version against the oral agreement . Rather, the OP No. 1, in pursuant to the oral agreement, has already executed and registered the deed of conveyance in favour of the complainants.
Though, the OP No. 1 /developer has already executed and registered the deed of conveyance on 30.06.2016 in favour of the complainants in respect of subject flat yet it is very true that the developer has failed to provide completion certificate to the complainants till date causing clear gross negligence and deficiency in service on the part of OP No. 1. It is the bounded duty of OP No.1/developer to supply the same to the complainants forthwith as he has already received the total consideration amount of Rs. 31,00,000/- from the end of the complainants. The OP No. 1 has taken the plea that the relationship of consumer has already been ceased when the complainants have taken the physical possession of the subject flat. In this regard, it is our observation that until and unless, the completion certificate would be delivered to the complainants, the cause of action is still going on and the relationship of consumer would be persisted and as such the plea taken by the OP No. 1/developer has no leg to stand upon. The gross failure on the part of OP No. 1 /developer is hereby proved.
In this regard, we can safely rely upon the decision Chaya Pradeep Bavadekar and Ors. –vs- M/s. Kamla Ankur Developers, reported in 2016(3)CPR 181(NC) wherein the Hon’ble National Commission has been pleased to hold that it is a contractual as well as legal obligation of Developer to obtain Occupancy Certificate as its own cost. The Hon’ble Commission has further pleased to hold that the developer is liable to pay compensation and cost as specified. We can rely another decision i.e. Sanjoy Kr. Gupta –vs- Kebal Kisahan Baran and Ors. Reported in 2014(3) CPR 236(NC) wherein the Hon’ble National Commission has been pleased to hold that the Consumer Forum is primarily meant to provide protection to Consumers and their claims cannot be defeated on technical grounds.
Regarding OPs No. 2 to 6 , we do not pass any order as being the landowners/OPs No. 2 to 6 all legal rights have been entrusted upon the OP No. 1/developer by way of execution of one General Power of Attorney. It is admitted that the landowners did not receive any consideration amount from the end of the complainant. So, we do not find any fault or gross negligence on the part of the OPs 2 to 6. Rather , the OP No. 1/developer has received Rs. 31,00,000/- from the end of the complainants but he has failed to deliver the completion certificate to the complainants till date which is a glaring example of gross negligence and deficiency in service on his part .
Considering all aspects from all angles and keeping in mind the present position of law and regard been had to the submission of the Ld. Advocate and profound respect upon the citation of Hon’ble NCDRC , we are constrained to allow the instant consumer case on contest against the OP No. 1/developer with cost and dismiss the same against the OPs No. 2 to 6/landowners without any order as to costs.
Hence,
It is
ORDERED
That the OP No. 1/developer is directed to deliver the completion certificate to the complainants within 60 (sixty) days from the date of this order.
That the OP No. 1/developer is directed to pay compensation of Rs. 30,000/- (Rupees thirty thousand) only for mental paid and agony and to pay Rs. 10,000/- (Rupees ten thousand) only for litigation cost to the complainants within 60 (sixty) days from the date of this order, in default , the awarded amount shall carry interest @ 8% p.a. till full realisation.
No order is passed against the OPs No. 2 to 6/landowners as all legal rights have already been entrusted upon the OP No. 1/developer by execution of General Power of Attorney.
In case of non-compliance of the final order by the OP No. 1/developer, the complainants are at liberty to put the order in execution.
The CC case stands disposed of as per above observation.
Note accordingly.
Let a copy of this order be supplied to the parties free of cost.
