This is a case under Section 12 of Consumer Protection Act, 1986 for a direction upon the OPs to deliver actual and physical possession of the Scheduled ‘B’ flat and for compensation together with rent of Rs.48,000/- from 01.12.2007 and also for interest and for not to sell/transfer the Flat in question to any third party.

The case of the complainant in short is that the OPs are the sole, absolute owner of a plot of land measuring about 3 Katha 7 Chhatak and 17 Sq. ft. comprised in Plot No.301 appurtaining to R.S. Khatian No.429/1 and 429/2 situated within the Mouza Siliguri under District- Darjeeling particulars of which have been described in Schedule ‘A’ to the complainant having heritable, transferable right, title and interest thereof.

On 25.01.05 the OP entered into an agreement with the OP No.2/the Developer for the purpose of constructing a building under the building plan duly approved by the appropriate authority under Plan No.729 dated 02.09.2005  for constructing G+3 i.e. Ground Floor, 1^st, 2^nd and 3^rd floor building.  The OP no.1 also executed a power of attorney in favour of the OP No.2 empowering the OP No.2 to sale the developed area after completion of the said construction according to the building plan. 

The complainant in need of a flat in ownership proposed for purchasing a flat on being inspection the documents and title and being satisfied entered into an agreement with the OP No.1 & 2 for the purpose of purchasing a flat in the 1^st floor front portion particulars of which have been described in ‘B’ Schedule to the complaint at a sum of Rs.8,50,000/- and a sum of Rs.1,00,000/- was paid on 04.02.2007 as advance/booking amount to the OP No.2 towards purchase of the said ‘B’ scheduled flat.  Thereafter, on 06.02.07 the complainant entered into an agreement with the OPs for the purchase of said scheduled flat.  Subsequently, on 11.04.07 the complainant also paid Rs.3,85,860/- to the OP No.2 through Account Payee cheque No.110941 dated 31.03.07 drawn on ICICI Bank.  Thereafter, the balance amount of Rs.3,64,140/- was paid under A/C payee cheque No.110959 dated 25.05.07 drawn on ICICI Bank.  Thereby entire consideration amount of Rs.8,50,000/- was paid to the OP No.2.  The OPs subsequently, executed a Deed of Sale in favour of the complainant in respect of the B Scheduled property and registered the same on 11.04.07 and recorded in book No.1 being document No.342 for the year 2007.  Despite registration of the said flat in favour of the complainant actual, physical possession was not handed over to the complainant by the OPs.  Even copy of completion certificate from Siliguri Municipal Corporation has also not been handed over to the complainant in spite of repeated request. 

The complainant took a loan from ICICI Bank and paying regular installments together with interest thereon.  Subsequently, it is learnt that the OPs intended to transfer the ‘B’ scheduled property to other person on financial gain.  Since the OPs did not deliver the physical actual possession of the ‘B’ scheduled property within the stipulated period under the Deed of Agreement it amounts to deficiency of service.  Since the physical possession has not been delivered in favour of the complainant he is to incur a monthly rent of Rs.3,000/- per month towards his accommodation.  Hence, this case supported by affidavit. 

The OP No.2 contested the case by putting W.V. denying each and every allegation as made therein with a specific defence that the case is not maintainable. 

It is further alleged that the OP No.2 has already been executed Deed of Sale in favour of the complainant and the same was registered on 11.04.07 at the Office of ADSR, Siliguri being document No.342 for the year 2007 and physical possession has also been handed over to the complainant.  It is further submitted that proper application for Completion of Certificate from Siliguri Municipal Corporation has already been applied for and as such there is no deficiency on the part of the OP No.2 and thereby the case is liable to be dismissed with cost.  The W.V. has been filed supported by affidavit. 

OP No.1 also filed W/V supported by affidavit denying each and every allegation as made therein with a specific defence that the case is not maintainable. 

It is further alleged that flat was completed but roof room is not constructed as well no gates were installed or constructed, boundary wall, water reservoir, electricity connection were not yet constructed.  The construction is still going on.  In terms of the agreement by and between the OP NO.1 & 2 the project is to be completed within 24 months from the date of execution of the Deed of Agreement.  It is further contended that OPs executed a Deed of Sale in favour of the complainant duly registered under Deed No.342 for the year 2007.  It is further contended that the OP No.1 has no knowledge regarding the handing over the flat in question to the complainant but the same is under lock and key and it was either locked by the complainant or by the OP No.2.  It is further alleged that the OP No.1 is a aged person of 75 years old suffering from different diseases and subsequently, it was noticed that illegal construction was going on over the land in question for which he lodged a diary before the Pradhan Nagar P.S. under GDE No.237 dated 06.05.09 for the illegal activities and unauthorized construction work over the land in question.  Since the Deed has already been registered in favour of the complainant there is no deficiency on his part and as such the case is liable to be dismissed with cost. 

Upon consideration of the pleadings of the respective parties the following points are to be determined for solve out the controversy involved in the instant case :-

1. Is the case maintainable in law ?
2. Is there any deficiency in service or Unfair Trade Practice on the part of the OPs?
3. Is the complainant entitled to get decree as prayed for ?
4. To what other relief/reliefs as sought for ?

Decision with reason.

All these points are taken up together for the sake of convenience as they are interlinked.

The Ld. Advocate on behalf of the complainant advanced argument that in terms of the agreement possession in respect of the flat in question has not been delivered in favour of the compliant.  In terms of the Deed of Agreement time is of the essence of contract.  As a result of which the complainant has to bear the rent of Rs.3,000/- per month despite purchasing a ownership flat on his behalf from the OPs. 

The complainant has to take loan from ICICI Bank and non-delivery of possession in respect of the purchased flat he has to pay the interest to the ICICI Bank since loan has been taken for the purpose of the said flat.  As possession over the said purchased flat has not yet been delivered the interest has been accrued and is regularly paying the same.  So, the OP is to pay damage with regard to monthly rent paying his tenanted premises since the date when the delivery of possession is to be given as per deed of agreement and also to pay the interest towards monthly installments as paid by the complainant to the ICICI Bank towards building loan. 

In support of his contention reliance has been placed upon the decision reported in (ii) 2007 CPJ 112 wherein it has been held further non-construction of water tank and pump it amounts to deficiency of service and accordingly compensation has been granted. 

In 2004 Vol.III CPJ 67 National Commission wherein it has been held delivery of possession delayed when there is inordinate delay in completing construction interest paid. 

In 2001 Vol.-II CPJ 15 N.C. wherein their Lordship held when the complainant entered into an agreement with a builder to purchase a dwelling unit and full price was paid and when builder failed to build the same in time and possession gave after two years of the promise compensation as granted has been confirmed holding deficiency in service. 

On the other hand the Ld. Advocate on behalf of the OP No.2/the Developer advanced argument that pleading is no proof and in the absence of any evidence the case of the complainant can not be accepted.  In terms of the agreement Sale Deed was executed in favour of the complainant and possession was delivered thereon and there is no proof that actual physical possession was not delivered in favour of the complainant. 

It has been further argued that the complainant did not issue any notice or called for possession from the OPs and after execution of the Deed of conveyance in terms of the Deed of Agreement.  It is a settled principle of law possession deems to have been delivered in favour of the complainant on the date of registration of the deed.  In support of his contention reliance has been placed upon Vol.-IV (2007) CPJ 160.  It has been further argued that when the OP led evidence supported by affidavit disclosing the delivery of possession and execution of deed of conveyance and registration thereof the defence case is to be considered as admitted when there is no specific case challenging the version as made by the OP by way of Written Version and leading evidence thereof.  Reliance has been placed upon a decision reported in Vol.-IV 2006 CPJ 213 National Commission. 

The Ld. Advocate on behalf of the OP No.1 the owner advanced argument that after execution of the Deed of conveyance and registration thereof the OP No.1 has nothing to say and possession in respect of the purchased flat as described in ‘B’ scheduled property deems to have been delivered in favour of the complainant. 

It has further been argued that whether possession has been delivered and under the contract the Developer is sole answerable to the complainant and he has nothing to say in this regard. 

It has been further argued that with regard to illegal construction after the expiry of stipulated period in terms of the Agreement the owner/OP No.1 has lodged a FIR before the I.C., Pradhan Nagar P.S.  Therefore, he has nothing to say against the claim as made by the complainant and he can not held liable for the relief as sought for. 

The complainant has filed several documents in support of his contention namely Deed of Agreement made between the complainant and the OPs dated 06.02.07; Original Booking Memo for a sum of Rs.1,00,000/- dated 04.02.07; original money receipt dated 04.02.07; Original ICICI Bank Invoice in respect of Cheque dated 30.03.07 for Rs.3,85,860/-; the cheque dated 25.05.07 for Rs.3,64,140/-; original certificate, copy of Deed of conveyance for the year, 2007 and several other documents. 

The sole contention of the complainant is that he intended to purchase a flat from the OPs and thereby deed of agreement of sale has been executed by and between the complainant and the OP No.2.  subsequently, Deed of conveyance was also executed and registered by the OPs even then no physical possession in respect of the purchased flat has been delivered in favour of the complainant.  As a result of which he has to incur monthly rent as well as interest against the loan as taken by the complainant from the ICICI Bank. 

The case of the complainant has been denied by the OPs not only in their Written Version but also leading evidence thereof. 

Be it mentioned here that the complainant did not led any evidence in support of his contention. 

Deed of Agreement to sale dated 06.02.07 goes to show that the OP No.1 is the owner of the land in question as described in ‘A’ scheduled property.  OP No.2 is the builder of the flat as described in ‘B’ scheduled property.  From the said deed in agreement there is a clause that the complainant is to purchase one flat measuring about 850 Sq. ft. more or less at front side of the 1^st floor of ‘A’ scheduled property with common facilities and no circumstances possession of the said flat shall be made over to the first party the complainant until and unless all payments required to be made under this agreement are paid in full.  In clause No.5 it has been laid down that said flat of the said building shall not be separately assessed for Municipal tax and the urban land taxes, the first party shall also paid the proportionate share of the municipal taxes, rates, both owners and occupiers and water tax, multi storied building tax and urban land taxes as assessed and all other rates and taxes payable or which may levied of whole building such proportionate shall be levied of whole building such proportionate shall be paid by the first party.  In clause 22 the delivery of completed flat will be made within 31.12.2007 on receipt of full payment as the time is the main essence of  contract if any further delay may be intimated duly to the party. 

Be it mentioned here Scheduled ‘B’ describes for the flat intended to be purchased by the first party, the complainant.  Scheduled ‘A’ relates with the land where the proposed project for construction of a multi storied building will be carried on.

Annexure -A describes date of receipt of booking amount of Rs.1,00,000/- under cheque dated 02.02.07 and manner of deposit of the rest amount.   

Annexure – B is the specification of the area of schedule of items to be allotted in favour of the complainant and terms and condition thereof. 

Booking Memo goes to show that an amount of Rs.1,00,000/- has been given and received by the OP No.2 on 04.02.07. 

Money receipt dated 02.02.07 also issued by the Proprietor Lokenath Builders and Engineers for the said sum of Rs.1,00,000/-. 

The receipts under cheque No.110941 and 110959 issued by ICICI Bank dated 30.03.07 and 25.05.07 amounting to Rs.3,85,860/- and Rs.3,64,140/- respectively has been issued in favouir of Loke Nath Builders against the customer Arijit Basu, the complainant.  It further reveals that all those amounts were duly received by the OP No.2 by putting signatures thereon dated 11.04.07 and 25.05.07. 

Xerox copy of the IGR being No.256960 dated 11.04.07 goes to show that such receipt was issued in favour of the complainant for withdrawal of the sale deed.  The certified copy of Sale Deed being No.342 of 2007 goes to show that the OP No.1, the real owner of the ‘A’ scheduled property executed the said deed of conveyance in favour of the complainant wherein the OP has been described as third party in respect of the flat as described in ‘B’ scheduled property.

Be it mentioned here ‘B’ scheduled property under the deed of conveyance and the ‘B’ scheduled property as described in Agreement to Sale are same and identical. 

Scheduled ‘C’ under the deed of conveyance relates with common facilities to be enjoyed by the complainant.  So, deed of conveyance dated 11.04.07 clearly proves that the OP No.1, the real owner of the land in question in term of the Deed of Agreement has executed the said sale deed in favour of the complainant within the schedule period as described in Deed of Agreement i.e. 31.12.2007. 

Xerox copy of Deed of Agreement for development dated 25.01.05 goes to show that original owner Suthirtha Ghosh, the OP No.1 entrusted one Arup Nandy, the OP No.2 for developing the land as described in ‘A’ scheduled property as mentioned therein.  The said deed contains title and indemnity by the owners wherein it has been agreed by and between the parties to enter into an agreement with intending transferees/purchasers for the flat, garage, shop room etc and proportionate undivided share of land to the developers allocation to receive money from them or any of them the first party, the owner undertakes indemnify the developer from and against all losses, damages etc. as a result of any breach of that undertaking.  Article 3 describes above the title and indemnity by the developer.  Article 4 goes to show Development Right.  In clause 3 at Page – 6 it has been laid down that the first party owner is to register General Power of Attorney in favour of the developer to develop or carry out all classes of works as mentioned therein with a further right to give/handover physical possession thereof to take consideration money for advance money from the purchaser or transferees to execute and deed of agreement in respect of the developer allocation of the said project/pertinent and the said General Power of Attorney shall remain in force until and unless the project of building as aforesaid is completed and different flats are disposed of and/or transferred to and in favour of different purchasers/persons.  Default clause has been described in article VII wherein it has been mentioned that the developer shall complete the project within 24 months (approximately) from the date of sanctioning of the building plan.  Time is of the essence of this contract subject to the exigencies arising out of circumstances beyond the developer’s control.

With the head of Taxes as described in Article - IX it has been mentioned all rates including electric bill charges, taxes and out goings in respect of the said premises shall be the liability of the owner up to the date of delivery of the possession to the developer .  Thereafter the developer will bear the said rate and electric charges, taxes etc up to the delivery of possession to the transferee of the said building by the developer in the said premises and from the date of delivery of possession to the transferees who shall be liable for such taxes and charges according to the proportionate area of the respective flat till mutation and thereafter.  General Power of Attorney dated 25.01.05 goes to show that the original owner entrusted the developer/the OP No.2 for effecting the project under the construction as made therein.  Xerox copy of plan also goes to show that building plan has been duly sanctioned and approved by the competent authority i.e. Siliguri Municipal Corporation and it bears the signature of the original owner. 

So, from the document it is admitted position that the OP No.1 is the real/true owner of the ‘A’ scheduled property and by virtue of deed of agreement coupled with General Power of Attorney OP No.2 was entrusted and to carry on the multi storied building over the ‘A’ scheduled property. 

Admittedly, the complainant is the purchaser of the ‘B’ scheduled property under the Deed of Agreement executed by and between the complainant and the OP No.2, the Developer.

Deed of conveyance executed by OP No.1 in favour of the complainant clearly goes to show that the said flat as described in ‘B’ scheduled property was duly registered by the real owner, the OP No.1 and the OP No.2 was the third party to the said deed.  So, from the Deed of Agreement dated 06.02.07 and Deed of conveyance dated 11.04.07 it is crystal like clear that the said Deed was duly executed and registered within the time scheduled under the Deed of agreement i.e. within 31.12.2007. 

Now the question as 1) whether actual physical possession was delivered by the OPs in favour of the complainant and 2) what is the necessity of handing over the Completion Certificate as contended by the complainant in Paragraph – 10 of the written complaint. 

Much argument has been advanced by the Ld. Advocate on behalf of the OP No.2, the developer that after execution and registration of Deed of conveyance possession in respect of the ‘B’ scheduled property deems to have been delivered in favour of the complainant.  General principle of law is title follows possession obviously after execution and registration of the Deed of conveyance under the legal proposition it can be considered that title in respect of the ‘B’ scheduled property has been created in favour of the complainant by virtue of registered deed of conveyance dated 11.04.07.  So,under the law it presumes that the complainant deems to have been possessed the said ‘B’ scheduled property.  But deeming clause of possession and actual physical possession are quite different.  Though there is no documents in support of the complainant that the developer and/or owner was asked for delivery of possession over his purchased flat as described in ‘B’ scheduled property under the said deed of conveyance but there is no iota of evidence on the part of the OPs to show that actual physical possession was as all delivered to the complainant.  Deed of agreement dated 06.02.07 clearly shows in clause No.5 the purchased flat is to be assessed separately for municipal taxes and the urban land taxes and so long it has not been assessed separately the first party, the complainant shall have to bear the proportionate share of the municipal taxes and rates of the taxes like water taxes, multi storied tax, urban land taxes.  In clause 14 until and unless actual physical possession be not handed over to the first party, the complainant, the first party can not carry out any addition alteration in his purchased flat.  In terms of developer’s right described in Article - 9 under the caption of Taxes the original owner, the OP No.1 has liability to pay taxes up to the delivery of possession to the developer and thereafter it falls upon the developer up to the date of delivery of possession to the transferee of the said building by the developer from the date of delivery of possession to the transferee who shall be liable for such taxes and charges according to the proportionate area of the respective flats till mutation.  So, it clearly goes to show that actual date of delivery of possession is necessary otherwise rate of taxes or proportionate taxes in respect of the purchased flat by the transferee can not be ascertained and the transferee can not be held liable to pay tax/proportionate tax in respect of his purchased flat and such liability arises from the date of actual physical possession of the purchased flat.  With regard to mutation of any purchased flat also arises from the date of actual physical possession and certificate thereof.  For this reason Completion of Certificate is necessary to take immediate steps for habitable condition in the purchased flat. 

Be it mentioned here the OP No.2 in his W.V. paragraph – 9 categorically stated that the complainant has been possessing the said flat on and from the date of registration in his ‘Khas’ actual and physical possession and the OP No.2 has applied for completion certificate from Siliguri Municipal Corporation.  It has already been pointed it out here in before that no scrap of paper has been furnished by the OP No.2 to show that actual physical possession was delivered upon the complainant who in turn is still in position and the said flat is under his Khas possession.  In terms of the General Agreement burden lies upon the OP No.2 to substantiate it by cogent, oral and documentary evidence rather from his admission it is clear that Completion Certificate has not been received by the OP No.2 on the date of furnishing W/V although applied for.  Now at a late stage on the date of hearing argument the OP No.2 files original document to show that water charges in respect of the ‘A’ scheduled property will be annexed from the month of April’06 on payment of rate of Rs.124/- per month vide order dated 20.04.06 issued by the Chief Executive Officer, Siliguri Municipal Corporation.  It further reveals that from the letter dated 16.10.09 issued by the Commissioner, Siliguri Municipal Corporation goes to show the grant of occupation certificate in favour of the OP No.1 the real owner and such certificate was asked for by application dated 05.05.09 whereas the case has been instituted on 12.03.09.  So, it is evident that Completion Certificate has been sought for after institution of the instant case.  It further reveals that the OP No.2 claimed for completion certificate from the Commissioner, Siliguri Municipal Corporation but there is no mention of the date as to when such certificate was called for.  From the endorsement it is apparent that to issue Completion Certificate Engineers completion certificate is required.  So, it is evident up to the date of application before the Commissioner engineer’s Completion Certificate was not produced and/or in other word it can be said that the building in question was not completed under the project.  Mere completion of dwelling unit as described in ‘B’ scheduled property it can not be said to be that project has already been completed and physical possession over the dwelling unit was handed over to the complainant.  Dwelling unit does not mean the completion of only rooms in terms of the agreement but it includes also common facilities as described therein.  OP No.1 on the contrary in his W/V categorically stated in paragraph – 12 of the W/V that gate, boundary, wall water reservoir, water connection, electricity connection were not installed.  If all these common facilities have been completed, why it has mentioned by the real owner the OP No.1 who also made a diary before the Pradhan Nagar P.S. being GDE No.237 dated 06.05.09 although the copy of the said GDE has not been furnished by the OP No.1 for proper appreciation.  But the complainant has filed the said copy which was supplied to him by the OP No.1 in favour the Forum may glance it and take judicial notice of it from which it apparent that up to the date of GD Entry the other facilities have not been completed then and there is no denial on the part of the OPs that such application was not at all filed before the Pradhan Nagar Police Station. 

Be that as it may all the circumstances coupled with the documentary evidence it is crystal like clear that the required flat i.e. Scheduled ‘B’ property together with common facilities has not been completed till the date of filing of the instant case and by virtue of such Completion Certificate it can be held to be completed on the date of issuance of the said certificate dated 16.10.09. 

It is evident in terms of the Deed of Agreement possession is to be delivered within 31.12.07 and mere execution and registration of the Deed of conveyance it can not be held that actual physical possession in respect of the B scheduled property was delivered in favour of the complainant. 

The complainant has sought for declaration of that effect.  More so, the complainant has sought for rent for his tenanted premises amounting to Rs.48,000/- and/or from 01.12.07 and interest amount of Rs.1,56,849/- as paid by the complainant to the ICICI Bank coupled with restraining order from the selling the ‘B’ scheduled property to any Third Party or any other person. 

It is pertinent to mention here the Deed of Agreement does not include any such damaging clause for non-performance of the contract in time.  There must have such clause in the Deed of Agreement.  The decision reported in 2007 II CPJ 112 in the case of Jose Aleixo Proenca (doctor) and another Vs Supreme Construction this Forum is of the view that the fact of the case under reference and the facts of the case in hand are quite different and not matching with each other.  Thereby the said decision is not applicable in the instant case.  It further reveals there is no specific clause of defaulting clause in case of non delivery of possession over the ‘B’ scheduled property within time thereby damage can be claimed by the complainant on its basis.  It may be time is of the essence of the contract but there must be such clause by which the complainant can claim for damage on the basis of such defaulting clause.  It is the discretion of the Forum to award damage or not.  But the complainant in absence of any specific contract can not claim damage from the OPs.  Therefore, the decision as relied by the complainant bears no application in the instant case. 

We have gone through the decision as relied by the OP No.2 this Forum we are of the view that burden also lies upon the OPs particularly OP No.2 to show that actual physical possession was delivered on the date of execution and registration of the Deed of conveyance dated 11.04.07.  Rather circumstances coupled with completion certificate issued by Siliguri Municipal Corporation it is crystal like clear that the building in question under the project in terms of the Deed of Agreement coupled with General Power of Attorney together with the Deed of Agreement standing in the name of the complainant we are constrained to hold that possession over ‘B’ scheduled property has not yet been delivered to the complainant and thereby the complainant deserves the direction of delivery of possession in this regard and for issuance of Completion Certificate.  Further the OP No.1 being the owner can not avoid his liability and to show that the project may be completed within the stipulated period of 24 months from the date of execution of the said deed of agreement.  Thereby the OP No.1 can not avoid his liability by putting a General Diary before the Pradhan Nagar P.S. though not properly proved.  Since there is delay to deliver actual physical possession over the ‘B’ scheduled property in favour of the complainant and the manner of denial as made buy both the OPs is denial of true fact and such fashion clearly comes within the purview of negligence and deficiency of service as provided under Section 2(1)(g) and (o) of the Consumer Protection Act, 1986 holding that the complainant is a Consumer as provided under Section 2(1)(d) of Consumer Protection Act, 1986 and when there is such delay in delivery of possession over the ‘B’ scheduled property the complainant is entitled to get a compensation to the tune of Rs.5,000/- from the OPs who are jointly and severally liable to pay the same. 

Further we are of the view that the complainant did not aver specifically that house building loan was taken from the ICICI Bank in terms of the agreement and on payment of the interest accrued thereon in absence of specific pleading in the complaint and/or Deed of Agreement, this Forum is of the view that the complainant is not entitled to get a compensation towards the interest as accrued thereof and paid thereby. 

Under these facts and circumstances, we are of the view that the complainant is entitled to get decree for direction as sought for in the light of our reasoning as stated above.

Thus, the issues are decided in favour of the complainant holding the case is maintainable and deficiency of service on the part of the OPs. 

Thus, the issues are decided in faovur of the complainant in pert. 

Hence, it is,

                         O R D E R E D

that the Consumer Case No.17/S/2009 is decreed on contest against the OPs with cost of Rs.1,000/-. 

The complainant is entitled to get a decree for direction upon the OPs who are jointly and severally liable to give/deliver actual physical possession of the ‘B’ scheduled property/flat within 45 days from the date hereof in favour of the complainant. 

The complainant is further entitled to award direction upon the OPs to issue Completion Certificate in favour of the complainant and they are also restrained from selling the ‘B’ scheduled flat to any other person. 

The OPs No.1 & 2 who are jointly and severally liable to pay damages as ordered herein before to the complainant within the stipulated period of 45 days from the date hereof failing which the amount shall carry interest @ 9% per annum from the date of institution of the instant case i.e. 12.03.09 till realization of the entire sum.

In default the complainant is at liberty to put the decree in execution.

Let Xerox copies of this Judgement and Order be supplied to the parties free of cost.