Hon’ble Mrs. Soma Bhattacharjee, Member
CC/297/2018 was filed by complainant Abhijit Banerjee and another u/s 17 of C.P. Act, 1986 against Sri Prabir Kr. Das and another. The value of the case being Rs. 68,00,000/- ( value of flat Rs. 56,00,000/- + compensation claimed Rs. 10,00,000/- + cost of proceeding Rs. 2,00,000/- ).
The case in a nutshell is as follows: The Complainants entered into an agreement on 14.03.2015 with OP no. 1 the landowner and OP no. 2 as developer for purchase of flat no. 102, 1st floor South Eastern Side Block B of premises no. 346/1 Hossainpur presently Anandapur, Kolkata 700107 and a car parking space of 120 sq. ft. for Rs. 56,00,000/-.
On full payment of the consideration amount to Sri Prabir Kumar Das, landowner (as the scheduled flat was part of the owner’s allocation) the deed of conveyance was executed, as per tripartite agreement, and possession was provided to the complainants by the developer without any completion certificate from KMC. Several works of the flat remained unfinished.
This flat was sold by Sri Prabir Kr Das from his share as landowner. Thus the complainants had stepped into the shoes of the owner. The complainants wrote to the OP no. 2 on 15.11.2017 to provide building completion certificate by 30.12.2017. At that point the OP no. 2 demanded maintenance charges from the complainants vide their letter dt. 18.12.2017, although they had previously given a written assurance that no maintenance charges would be claimed till completion certificate is handed over.
Cause of action in this case arose when the tripartite agreement was signed between the complainants the landowner and the developer on 14.03.2018 and it is still continuing as the flat remains incomplete and CC is yet to be handed over to the complainants.
After verbal request to the developer went unheeded, the complainants filed CC/297/2018 and notices were issued to the OPs. OP no. 1 did not file W.V in CC/297/2018 and matter proceeded ex parte against him. OP no. 2 appeared and filed W.V and both sides submitted evidence and questionnaires.
The Ld. Counsel for the complainant cited Civil Appeal No. 7042 of 2019 of Hon’ble Apex Court, wherein the builder had argued that rights of a purchaser are not the same as the original allottee. However the Apex Court decreed “This court is of the opinion that the per se bar to the relief of interest on refund, enunciated by the decision in Raje Ram (Supra) which was applied in Wg. Commander Arifur Rehman (supra) cannot be considered good law. The nature and extent of relief, to which a subsequent purchaser can be entitled to, would be fact dependent. However, it cannot be said that a subsequent purchaser who steps into the shoes of an original allottee of a housing project in which the builder has not honoured its commitment to deliver the flat within a stipulated time, cannot expect any – even reasonable time, for the performance of the builder’s obligation. Such a conclusion would be arbitrary, given that there may be a large number – possibly thousands of flat buyers, waiting for their promised flats or residences; they surely would be entitled to all reliefs under the Act. In such case, a purchaser who no doubt enters the picture later surely belongs to the same class. Further, the purchaser agrees to buy the flat with a reasonable expectation that delivery of possession would be in accordance within the bounds of the delayed timeline that he has knowledge of at the time of purchase of the flat. Therefore, in the event the purchaser claims refund, on an assessment that he too can (like the original allottee) no longer wait, and face intolerable burdens, the equities would have to be moulded. It would no doubt be fair to assume that the purchaser had knowledge of the delay . However to attribute knowledge that such delay would continue indefinitely, based on an a priori assumption, would not be justified. the equities, in the opinion of this court, can properly be moulded by directing refund of the principal amounts, with interest @ 9% per annum from the date the builder acquired knowledge of the transfer, or acknowledged it.”
The Ld. Counsel for the complainant also cited 1 (2011) CPJ 71 (NC) wherein as per head note “Contended complaint time – barred – Possession given in 1995 complaint filed in 2007 – Completion certificate and occupancy certificates not issued – Continuing cause of action – Payment made to OP – Liability of OP to provide facilities – Order of State Commission upheld.”
The case of the defense counsel is that since the consideration money was received by the OP no. 1 who is a landowner the complainant is not a consumer viz- a- viz the developer. He submitted that the recital of the sale deed of the scheduled flat states that the owner Prabir Kr Das sold the flat to the complainant for his personal reasons.
In this matter the complainants have sought the following reliefs: Issue of completion certificate, completion of incomplete work of the scheduled flat, Rs. 10,00,000/- as compensation and Rs. 2,00,000/- as litigation cost.
On appraisal and consideration of the submissions of both the Ld. Counsels, the documents filed in the record and keeping in mind the citations quoted by the Ld. counsel of the complainant it is seen that the complainants are consumers in terms of C.P. Act, 1986. Since the agreement for sale was a tripartite one wherein the developer was also a party, the developer is bound to provide the services he had assured the original landowner Prabir Kumar Das. Thedeveloper has defaulted on his part by not providing his commitments as per agreement with the complainants and landowner. The complainants have stepped into the shoes of the landowner (who is the vendor in this case) on purchasing the scheduled flat from the landowner’s share. The complainants are entitled to relief as prayed for on account of deficiency of service on the part of the developer/ OP no. 2.
The CC/297/2018 therefore succeeds on contest.
The Opposite Party no. 2 / developer is hereby directed to issue completion certificate in respect of the scheduled flat and car park within 60 days of the date of pronouncement of this order.
Opposite Party no. 2 will also pay a compensation of Rs. 2,00,000/- to the complainants and a litigation cost of Rs. 10,000/- in favour of the complainants within 60 days of the date of pronouncement of this order.
If the Opposite Party no. 2 fails to comply with the order within time, complainants will be at liberty to put the order into execution.
CC/297/2018 is disposed of accordingly.
Free plain copies be delivered to all the parties.