Hon’ble Mrs. Soma Bhattacharjee, Presiding Member
The complainants Rabindranath Ghosh and Sumita Ghosh filed this complaint u/s 17 of C.P. Act, 1986 against Sri Prabir Kr. Das, owner of the property and M/s. Ambalika Housing Pvt. Ltd., Developer represented by Sri Sachin Paik, one of its Directors. The complaint is valued at Rs. 86,50,000/- (value of flat Rs. 74,50,000/- + 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. 74,50,000/- at premises no. 346/1 Hossainpur Madurdaha Ward no. 108, P.S.- Anandapur, Kolkata- 700107, West Bengal.
The gist of the matter is as follows:
Sachin Paik OP no. 2 sold out the self contained flat being no. 101, Block – B of premises as per schedule A, B & C with car parking space on execution and registration of the deed of conveyance in favour of the purchasers on 15.05.2014 posing 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 complainants.
After waiting for 2 years complainant filed CC/325/2018. The OP filed an application challenging maintainability of the complaint petition stating that it has been filed after lapse of two years. 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 made on 15.05.2014 at District Sub Register III, Alipure, South 24 Pgs.
The complainants have prayed for direction upon the OP 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. However, on the day of argument the Ld. Counsel of the complainants Sri Prabir Basu confined his prayer to obtaining completion certificate from the developer.
The OP no. 2 appeared and filed W.V. But since OP no. 1 did not appear nor filed W.V the case proceeded ex parte against OP no. 1. 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 complainants had never prayed for any Advocate Commissioner for assessing whether the flat was incomplete. Moreover, as per their written version, the owners 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 15.05.2014 mentions that the purchasers are liable to pay KMC taxes from the date of deed of conveyance. However, no tax has been paid to the KMC by the purchasers till today.
Ld. Counsel for the OP argued that the First Appeal being No. FA/10/2023 filed before the 1st Bench of Ld. SCDRC by complainants in a similar matter was dismissed. Hence this complaint is not maintainable.
Heard the submissions of Ld. Counsels of both sides. Considered all submissions, material records and documents available. In this regard extracts from the head note of 2022 (1) CPR 429 (SC) in Civil Appeal No. 4000 of 2019 decided on 11.01.2022 are considered: “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.”
In I (2016) CPJ 15 (SC) in Civil Appeal No. 557 of 2016 decided on 27.01.2016 the Apex Court observed: “There is no provision parallel to provision contained in Order 9 Rule 9 (1), CPC which contains a prohibition that if a suit is dismissed in default of plaintiff under Order 9 Rule 8, a second suit on same cause of action would not lie – Rule of prohibition contained in Order 9 Rule 9 (1), CPC cannot be extended to proceedings before District Forum or State Commission – Second Complaint maintainable.”................ “The fact that the case was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.”
In I (2011) CPJ 71 (NC) in Mopar Builders and Developers Pvt. Ltd. –vs- Unity CO – OP Housing Society Ltd. the Apex Court observed: “The RP / OP has also raised the plea that the complaint is time – barred, on the ground that the possession had been handed over to the purchasers during 1993 – 1995 period, while the complaint to the District Forum was made in 2007. This argument cannot be accepted as the completion certificates and occupancy certificates, as observed by the State Commission, have not been made available to the purchasers / occupants.”
In view of the above discussions it appears that the Complainants are consumers in terms of Section 2(i)(d) of C.P. Act, 1986. OP no. 2 is negligent and deficient in service in not issuing completion certificate to the complainants in spite of registering and handing over delivery of possession of the flat and car park. The complainants are therefore entitled to relief as prayed for.
It is ordered
The CC/325/2018 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 60 days from date of this order. He is also directed to pay a litigation cost of Rs. 10,000/- within 60 days of this order.
If the OP no. 2 fails to comply with this order within the stipulated period, the complaints will be at liberty to put this award into execution. CC/325/2018 is disposed of accordingly. Free certified copies are to be issued to all parties.
