1. Sri Netai Ghosh & Others3, K. C. Bose, P.S. Shyampukur, Kolkata-700 004.2. 2) SRI SRIMANTA GHOSH3, K. C. BOSE, P.S-SHYAMPUKUR, KOLKATA-700004.3. 3) SRI RABINDRANATH GHOSH3, K. C. BOSE, P.S-SHYAMPUKUR, KOLKATA-700004.4. 4) SMT. RUNA GHOSH3, K. C. BOSE, P.S-SHYAMPUKUR, KOLKATA-700004.5. 5) KUMARI TANAYA GHOSH3, K. C. BOSE, P.S-SHYAMPUKUR, KOLKATA-700004.6. 6) SRI PATIT TABAN GHOSH53/B, BHUPEN BOSE AVENUE, 1ST FLOOR, P.S-SHYAMPUKUR, KOLKATA-700004.7. 7) SRI BIDYUT KUMAR GHOSH53/B, BHUPEN BOSE AVENUE, 1ST FLOOR, P.S-SHYAMPUKUR, KOLKATA-700004.8. 8) SRI SUKUMAR GHOSH53/B, BHUPEN BOSE AVENUE, 1ST FLOOR, P.S-SHYAMPUKUR, KOLKATA-700004.9. 9)SMT RENUKA GHOSH53/B, BHUPEN BOSE AVENUE, 1ST FLOOR, P.S-SHYAMPUKUR, KOLKATA-700004.10. 10) SRI SAMBHU NATH GHOSH53/B, BHUPEN BOSE AVENUE, 1ST FLOOR, P.S-SHYAMPUKUR, KOLKATA-700004.11. 11) JAMUNABALA GHOSH69, SHYAMBAZAR STREET, KOLKATA-700004.12. 12) SMT. NAMITA GHOSH20C, GOPE LANE, KOLJATA-700004.13. 13) SABITA CHAKRABORTY18/7B, RAJA RAJBALLAV STREET, KOLKATA-700003.14. 14) KABITA GHOSH53/B, BHUPEN BOSE AVENUE, P.S -SHYAMPUKUR, KOLKATA-700004.15. 15) SRI SWAPAN PAUL(CONTITITED ATTORNEY OF OP 1TO 14.24/3, GOPAL CHATTERJEE ROAD, P.S-COSSIPORE, KOLKATA-700002.16. 16) M/S. PAXCO1, PANNA SUR LANE, P.S- COSIPORE, KOLKATA-700002.
...........Respondent(s)
BEFORE:
HON'ABLE MR. Bipin Muhopadhyay ,PRESIDENTHON'ABLE MR. Ashok Kumar Chanda ,MEMBERHON'ABLE MRS. Sangita Paul ,MEMBER
PRESENT :
Self, Advocate for Complainant
Sitangsu Dasgupta, Advocate for Opp.Party
Dated : 25 Apr 2014
JUDGEMENT
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that the parties of this case reached an agreement for sale on 23-03-2005 and on behalf of the owner landlord their attorney Shri Swapan Paul, OP1 and developer M/s. Paxco represented by Biswajit Ghosh OP2, executed the said agreement to sale and area of the said flat was 720 sq. ft more or less situated on the 4th floor of the North-West side of the premises of Schedule ‘A’, consisting of 2 bedrooms, one dining space, 1 kitchen and 2 bathrooms and privy with all easement right etc. and as per agreement construction of the said building shall be completed within 24 months from the date of agreement as per scheduled of the agreement.
It is the specific case of the complainant that he paid Rs.4 lakhs on 27-07-2005 and further a sum of Rs.1,80,000/- was paid on 09-06-2006 and total consideration was fixed Rs.9 lakhs thereafter, Deed of Conveyance was executed on 12-06-2006 and after taking possession of the flat they found some problem and some difficulties of the OPs and till todate OPs have not handed over the Completion Certificate (C.C.) that they are bound to do that and for which complainant is unable to mutate their names in the KMC and OPs are always avoiding to supply the said completion certificate from KMC for which in negligence and deficient manner of service and unfair trade practice complainant has filed this complaint.
On the other hand, OPs by filing written statement submitted that the allegation for not being able to mutate their name in the KMC is completely baseless, misleading and far from true because it is clearly mentioned in the Page 3 Para 20 of the Mutation Form (Form No.1-42) of K.M.C. which can be downloaded from KMC website that if C.C. is not available in that case copy of first Electric bill is to be attached along with the Mutation Forum for the purpose of Mutation or Apportionment. So, it is quite clear that the complainant has furnished misleading and false statement before the District Consumer Forum.
It is further submitted that the flat owners are well aware of the fact that Premises No.70, Shyambazar Street, under Ward No.08, Kolkata – 700 004 (Assessee No.11-08-48-00168) has been subsequently included in the list of Khatal Premises of Ward No.08 by KMC though at the time of sanctioning Building Plan said premises was not included in the list of Khatal Premises and, in fact, like the flat owners and OPs are also in quite dark about the reason and why the premises have been included in the list of Khatal Premises after completion of new building construction on the basis of the sanctioned building plan of KMC. It is further submitted as per present system and rule of KMC no regular Mutation or any C.C. of any building will be allowed if the premises is declared as Khatal Premises which are under the jurisdiction of Controller of Thika Tenancy, Kolkata and unless necessary clearance is obtained from C.T.T. Kolkata, KMC is not in a position to accord approval to Mutation or C.C. OPs have further submitted that they are always agreed to extend all sorts of Co-operation to the flat owners in order to obtain C.C. of the premises as well as their approval to mutation or apportionment on the basis of purchase deeds, following the rules of KMC. So, in the circumstances, OPs in their written statement assured that they shall do their level best to obtain the C.C. of the premises as early as practicable if the systems of KMC permits in this respect and developer will always extend all sorts of co-operation in this respect.
Decision with Reasons
On careful study of the entire complaint including the written statement and also deed of sale it is clear that complainant has no grievance about the sale or other matter except non-receipt of the Completion Certificate in respect of premises in question.
No doubt OP has admitted that they are unable to get any completion certification on the ground the case premises has already been declared as Khatal Premises which is already under the Control of Controller of Thika Tenancy, Kolkata and without his clearance KMC cannot grant any completion certification though building plan had been sanctioned when it was not detected that it was a Khatal.
Considering the entire facts and circumstances and the submission of the OPs we are convinced to hold that practically the OPs somehow or otherwise managed to procure the sanctioned plan and after completion and sale of the all flats to the intended purchaser when prayer for completion certificate was filed it was detected that in the register of the KMC it was a Khatal land. So, completion certificate was not granted on the ground it is under the control of Controller, Thika Tenancy Act but moot question is whether the complainants shall have to suffer for the fraudulent act of OPs when complainant have already invested huge amount for purchasing the flat and when they are residing and their registered deed has already been executed. Then as per agreement and the sale deed it is the legal duty of the OPs to handover completion certificate and at the same time it is the duty of the OPs to collect mutation application of the respective purchaser of the flats and to take all such steps for mutate their name to the KMC after getting such clearance from Controller, Thika Tenancy Act and OPs cannot anyway shift their liabilities and responsibility upon the complainant because it is mandatory provision of law that at the time of sale deed in respect of a flat completion certificate must have to be handed over on that date but that has not been done but truth is that the OPs have already realized the entire amount of the flat but complainants have been passing their days with great tension and anxiety. The sweet has been enjoyed by the OPs by keeping the complainant to enjoy sour daily and that is the pain, sufferings and practically complainants are passing their days with heavy tension what would be the fate if Controller of Thika Tenancy takes possession of the same treating complainants as trespassers. No doubt after applying our all legal concept we are sure it is the liability of the OPs to handover the completion certificate to all the flat owners and it must be handed over to all the flat owners within three months otherwise for adopting unfair trade practice of the OPs they shall be imposed punitive damages @500 per day till handing over the mutation certificate in favour of the complainant and no doubt the OPs shall have to pay all such costs for preparing completion certificate and mutation in the name of the complainant and other flat owners.
In the result, the case succeeds as the deficient negligent act on the part of this OP is proved and at the same time the OPs have adopted unfair trade practice.
Hence,
Ordered
That the case be and the same is allowed contest against the OPs with a cost of Rs.5,000/- (Rupees Five thousand only).
OPs are jointly and severally directed to handover completion certificate and to mutate the name of the complainant and other flat owners in respect of the respective flats in the KMC within 3 months failing which after completion of the stipulated period each OPs shall have to pay Rs.500/- per day as punitive damages till handing over the completion certificate of the premises and mutation certificate in the name of the complainants and if the attitude of the OPs are found reluctant in that case also penal action shall be started against them u/s.27 of the C.P. Act and entire matter shall be monitored by this Forum for implementation of this order.
[HON'ABLE MR. Ashok Kumar Chanda] MEMBER[HON'ABLE MR. Bipin Muhopadhyay] PRESIDENT[HON'ABLE MRS. Sangita Paul] MEMBER
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