Date of Filing: 14.9.2018
Date of Judgment: 11.7.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant , Sri Arijit Naskar, under section 12 of the C.P Act, 1986 against the Opposite party namely Sri Pinak Mitra (referred to as O.P), alleging deficiency in service on his part.
The case of the complainant in short is that by an agreement for sale dated 30.4.2017 the complainant agreed to purchase a flat measuring 470 sq.ft super built up area from the O.P at a total consideration price of Rs. 14,50,000/-. The complainant has paid the entire consideration money. The deed of conveyance was also executed in favour of the complainant. But since the construction work of the said building was completed in the year 2000 and the said flat remained unsold for a long period, it got damaged and so the O.P assured the complainant that he will repair the damaged portion of the flat at his own cost before delivery of possession of the flat to the complainant. On such assurance by the O.P the deed was though executed on 14.7.2017, but the delivery of possession of the flat was not given . But inspite of such assurance the O.P failed to execute the repairing work and the possession of the flat has not been delivered to the complainant. No possession letter has been issued , neither any completion certificate in respect of the building has been handed over inspite of repeated requests. So, the legal notice was sent dated 3.7.2018 upon the O.P by the complainant through his Ld. Advocate but since the possession has not been delivered, the present complaint has been filed by the complainant directing the O.P to execute necessary repairing work of the flat and to make it habitable , to pay the arrear amount of KMC towards property tax up to the delivery of possession of the said flat, to hand over the the possession along with possession letter, to handover completion certificate, to pay compensation of Rs.3 lac and litigation cost of Rs.50,000/-.
On perusal of the record it appears that the O.P has contested the case by filing written version denying and disputing the allegations made in the complaint. It is the specific case of the O.P that the possession of the flat has already been handed over to the complainant and the said flat is in possession of the complainant. It is also contended that being satisfied about the title and condition of the flat in question, the complainant had purchased the said flat and took the possession and the deed of conveyance was also accordingly executed. So, the O.P has prayed for dismissal of the complaint with cost.
During the course of the trial both the parties have filed their respective affidavit-in-chief followed by filing questionnaire and reply thereof and ultimately BNA has been filed by the O.Ps. Both the parties have also advanced their argument.
So, the following points require determination:
- Whether there has been any deficiency in service on the part of the O.Ps?
- Whether the complainant is entitled to the relief as prayed for ?
Decision with reasons
In order to substantiate his claim, complainant has filed deed of conveyance which appears to have been executed and registered on 14.7.2017 . It is an admitted fact as agitated also in the written version that the agreement for sale was executed between the parties on 30.4.2017 and the deed has been executed in favour of the complainant by the O.P on 14.7.2017. It is also admitted fact that the entire consideration price has been paid by the complainant. The only claim made by the complainant is that he has not been delivered the possession of the flat as he was assured by the O.P that he would take step for repairing of the damaged portion in the flat at his own cost before delivering possession of the same, which is denied and disputed by the O.P. According to the O.P possession has already been delivered and the complainant is in possession of the said flat. So the only aspect which has to be considered is whether the possession has been handed over as alleged by the O.P.
However, before discussing the said aspect it may also be mentioned here that the O.P sought to argue that the complainant is not a consumer within the definition as provided under the C.P Act as no service was availed of or hired by the complainant since the subject flat was already a constructed and ready flat. But on perusal of the complaint as already referred to above, it has been specifically claimed that since the building was already constructed in the year 2000 and flat remained unsold for a long period, there was damage and the O.P being the developer had assured for causing necessary repair in the said flat at his own cost and expenses before delivery of possession to the complainant. Conducting the repairing work in the flat as claimed by the complainant in the complaint amounts to hiring of the service of the developer /O.P and in such a situation the contention of the O.P that no service was hired, is devoid of any merits and thus the same is rejected, holding the complaint a consumer under the C.P Act.
Now, coming to the delivery of possession of the flat, it is apparent that the deed was executed on 14.7.2017 in favour of the complainant. On perusal of the Memo of consideration it is apparent that the last payment of Rs.13 lac was made on 10.7.2017 by the complainant by way of a cheque. According to the terms of the agreement between the parties and also as agitated by the O.P in the written version, on payment of the entire consideration price, the possession was to be delivered and the deed was to be executed. So, until 10.7.2017 which was the last date of payment of Rs.13 lacs, it can safely be assumed that the deed could not be executed by the O.P. Since the said amount was paid by cheque on 10.7.2017, it further indicates that for the clearance of the said cheque or for withdrawal of the sum therein , it might have taken at least another date. So, there remains only two days i.e. 12.7.2017 and 13.7.2017. The O.P has not stated anywhere in the written version the date of delivery of alleged possession. Admittedly no possession letter has been issued by the O.P to the complainant while delivering the alleged possession of the flat. So, unless specifically it is mentioned on what date the possession was delivered, having considered that the deed was executed on 14.7.2017 and thereby only 2 dates for such delivery, the contention of the O.P about the possession having been delivered remains doubtful. It may also be pertinent to point out that it is the normal process that the developer while delivering the flat, does issue a possession letter in order to clear that the possession of the flat has been handed over to the purchaser but it is strange that no possession letter was issued by the O.P in this case.
Apart from this, if according to the O.P complainant is already in possession of the flat, then there can be other document such as electricity bill because a person in occupation of the flat will definitely enjoy the electricity but no such electric bill has been filed by the O.P in order to support of his claim that the flat is in possession of the complainant.
So in view of the discussion as highlighted above, we find that the claim of the complainant that the possession was not delivered to the complainant with the assurance that the repairing work would be done at the expense of the O.P before delivering possession of the same to the complainant, cannot be ruled out and thus the complainant is entitled to the relief directing the O.P to hand over possession of the flat in a habitable condition.
It may be pointed out that O.P has cited a decision of Hon’ble National Consumer Disputes Redressal Commission in case of C.Chen Chappa Naidu & Anr. Vs. Kakarla Narsima Rao, in support of his argument that the complainant is not a consumer as there is no element of hiring or availing the service and also as the possession has already been delivered, there is no deficiency in service on the part of the O.P. But on a careful perusal of the said decision of the Hon’ble National Commission, it appears that in the given facts and situation of this case, the said case law has no application. In the said case admittedly possession of the car parking space was already handed over to the complainant. However, the complainant therein had claimed that he was not handed over the car parking space in the basement of the building. In this case the fact is totally different as complainant has claimed that he has not at all handed over the possession. So far as hiring or availing of no service, the same has already been dealt above in the judgment.
Hence,
ORDERED
That the CC/565/2018 is allowed on contest.
O.P is directed to hand over the possession of the flat as per agreement dated 13.4.2017 as well as described in the deed of conveyance dated 14.7.2017 in favour of the complainant within 2 months from this date, in habitable condition.
The O.P is further directed to issue possession letter at the time of handing over of possession and further directed to hand over copy of the completion certificate to the complainant within the aforesaid period of 2 months.
O.P shall also pay litigation cost of Rs.8000/- to the complainant within the aforesaid period of 2 months.
