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 OP/Landowners. One Barun Sarkar since deceased who died on 14.07.2018 leaving behind the complainant no. 1 as his widow and the complainant no. 2 as his only son. During the lifetime of Barun Sarkar , he has searched for a dwelling accommodation alongwith car parking space for their own use and to that effect he has visited the office of 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, Barun Sarkar, since deceased, has entered into an agreement for sale dated 10.03.2015 for purchase of one self-contained residential flat measuring area 1000 sq.ft. alongwith car parking space measuring area more of less 120 sq.ft. on the ground floor with the OP No. 1/developer at a total consideration amount of Rs. 40,00,000/-. 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 given to them. But the OPs have failed to supply the completion certificate to the complainants till date. On several occasion, 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 Barun Sarkar, since deceased. But during the pendency of the matter he has fallen seriously ill and unfortunately he died on 14.07.2018. 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. 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.
OP No. 3 has also contested this case by filing written version stating inter-alia that the alleged agreement has been executed by and between OP No. 1/developer and the complainant and as such, OP No. 3 has no legal obligation. Moreover, OP No. 3 has no knowledge about the annexed agreement or deed of conveyance. No consideration amount has been received from the end of the complainants. So, there is no such case /allegations against the OP No. 3 and accordingly OP No. 3 has prayed for dismissal of the complaint case with exemplary cost.
No written has been filed by OPs No. 2,4,5 & 6 and as such the case has been fixed for exparte hearing against them.
Ld. Advocate appearing for the complainants has fairly submitted that the total consideration amount of Rs. 40,00,000/- 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 covered car parking space of 120 sq.ft. on the ground floor 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 03.08.2016. 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 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 material available on the record.
The final hearing has been concluded.
It is admitted that the deed of agreement has been executed on 10.03.2015 by and between OP No. 1/developer, OPs No. 2 to 6/landowners and Barun Sarkar since deceased in respect of purchase of one self –contained residential flat measuring more or less 1000 sq.ft. ( super built up area) consisting of 3 B.H.K., one drawing cum dining kitchen, toilet , balcony on the second floor alongwith one covered car parking space measuring more or less 120 sq.ft. together with undivided proportionate share of land of premises no. 1B, Nrisingha Dutta Road, Police Station-Haridevpur hereinafter called the SAID FLAT/FLATS and car parking space morefully described in the Schedule-B at a consideration price of Rs. 40,00,000/-.
Thereafter, we have carefully perused 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.
Upon careful perusal of the death certificate issued by Department of Health Service, Municipality Jangipur, it appears to us that Barun Sarkar died on 14.07.2018. After his death the complainant no. 1 (wife of deceased Barun Sarkar) and complainant no. 2 ( son of deceased Barun Sarkar) have filed the instant complaint case against the opposite parties in order to get proper relief/reliefs as prayed for against the OPs.
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 said flat alongwith car parking space.
Though, the OP No. 1 /developer has already executed and registered the deed of conveyance 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. 40,00,000/- 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/OP 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. 40,00,000/- 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 part of him.
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 on contest against the OP No. 3 as well as dismiss the same exparte against the OPs No. 2,4,5 & 6 without any order as to cost.
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.