Hon’ble Mrs. Soma Bhattacharjee, Member
The Complainants Asim Kumar Saha and Rupa Saha filed this complaint CC/298/2018 u/s 17 of C.P. Act, 1986 against Opposite Party No.1, Sri Prabir Kr. Das, owner of the property and Opposite Party No.2, M/s. Ambalika Housing Pvt. Ltd., Developer represented by Sri Sachin Paik, Director.
The complaint is valued at Rs. 57,00,000/- (value of flat Rs. 45,00,000/- + compensation claimed Rs. 10,00,000/- + cost of proceeding Rs. 2,00,000/-). The Complainants had entered into an agreement with OPs for purchase of a flat and car parking space at a consideration of Rs. 45,00,000/- at premises no. 346/1 Hossainpur Madurdaha Ward no. 108, P.S.- Anandapur, Kolkata- 700107, West Bengal.
The case in brief is as follows:
Sachin Paik OP no. 2 sold out the self contained flat being no. 402, situated on 4th Floor, Block – B of premises Ambalika Greens as per schedule First, Second and Third with car parking space. On execution and registration of the deed of conveyance in favour of the purchasers on 04.08.2014 at D.S.R. III Alipore, Opposite Party No.2 posed himself as constituted Attorney of the owner of the land and also as Director of M/s Ambalika Housing Pvt. Ltd. However the completion certificate was not handed over to the complainant.
The complainants wrote a letter dt. 15.11.2017 to OP no. 2 to provide building completion certificate by 30.12.2017. Then the Opposite Party No.2 demanded maintenance charges of Rs. 51,160/- although they had assured in writing not to claim maintenance charges till handing over the building completion certificate. Thereafter the complainants filed CC/298/2018.
The complainants have stated that cause of action continues till completion certificate is handed over to the purchaser. The cause of action of the present proceeding arose when the flat and car park in question have been registered. Deed of conveyance was registered on 04.08.2014.
The complainants have prayed for direction upon the Opposite Party No. 2 to complete the incomplete work of the flat in question, to demarcate the car parking space, to impose compensation amounting to 10,00,000/- upon the OPs, to pay litigation cost of Rs. 2,00,000/- by the OPs.
Since OP no. 1 did not appear nor filed W.V the case proceeded ex parte against OP no. 1. The OP no. 2 appeared and filed W.V. Both sides filed evidence and questionnaires and replies thereof. The Ld. Counsel of OP no. 2, Sri R. Choumal argued that the allegation of the flat being incomplete does not stand since the complainant had never prayed for any Advocate Commissioner for assessing whether the flat was incomplete. He also submitted that the OP had assured to maintain all the flats by providing sweepers, security guards and electricity for common areas and this tantamounts to payment of compensation by the OPs.
Moreover, as per their written version, the Complainants and others had filed a letter before the KMC authorities stating that the building was constructed as per sanctioned plan. Clause 3 of the deed of conveyance registered on 04.08.2014 mentions that the purchaser is liable to pay KMC taxes from the date of deed of conveyance. However, no tax has been paid to the KMC by the purchaser till today. The Ld. Counsel for the complainants Sri Barun Prasad pointed out that no claim for payment of municipal tax was raised by the developer before the complainants. Ld. Counsel for the complainants stressed upon the fact that as per section 14 of C.P. Act, 1986, in case there is deficiency in service, then the developer is bound to provide compensation.
Heard the submissions of Ld. Counsels of both sides. Considered all submissions, material records and documents available in this regard.
The Ld. Counsel for the complainant, Mr. Barun Prasad cited the observation of NCDRC In I (2011) CPJ 71 (NC) is that “Consumer Protection Act, 1986 – Sections 2 (1) (g), 14 (1)(d), 21 (b) – Housing – Possession given – Facilities not provided – Continuing cause of action – Alleged deficiency in service – District Forum allowed complaint – Appeal dismissed – Hence revision – 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”.
He also cited the judgment of the Hon’ble Supreme Court in 2022 (1) CPR 429 (SC). It appears from head note: “(A) Consumer Protection Act, 1986 – Section 24 – A [Consumer Protection Act, 2019 – Section 69] – Limitation Act, 1963 – Section 22 – Consumer Complainant – Limitation – Continuing cause of action – Continuing wrong in present case is failure to obtain occupancy certificate – Owing to failure of respondent to obtain certificate, there has been direct impact on members of appellant in terms of payment of higher taxes and water charges to municipal authority – This continuous failure to obtain an occupancy certificate is a breach of obligations imposed on respondent under MOFA and amounts to a continuing wrong – Appellants are entitled to damages arising out of this continuing wrong and their complaint is not barred by limitation.”
We have considered the arguments of Ld. Counsels of both sides. In view of appraisal of all materials available on record, submissions of Ld. Counsels of both sides and observation of Hon’ble Apex court and also NCDRC, as quoted above, it appears that the Complainant is consumers in terms of Section 2(i)(d) of C.P. Act, 1986. Opposite Party No. 2 is negligent and deficient in service in not issuing completion certificate to the complainant in spite of registering and handing over delivery of possession of the flat and car park. The complainant is therefore entitled to relief as prayed for.
It is ordered
The CC/298/2018 is allowed on contest. The Opposite Party no. 2 is directed to handover completion certificate in respect of the scheduled flat and car parking space to the complainants within 120 days from date of this order. OP no. 2 is directed to pay compensation of Rs. 2,00,000/- for harassment and hardship resulting from delay in providing completion certificate, within 120 days of this order. Opposite Party No.2 is also directed to pay a litigation cost of Rs. 10,000/- within 120 days of this award.
If the Opposite Party no. 2 fails to comply with this order within the stipulated period, the complainants will be at liberty to put this award into execution. CC/298/2018 is disposed of accordingly. Free certified copies are to be issued to all parties.
