Hon’ble Mrs. Soma Bhattacharjee, Member
CC/675/2019 has been filed by Sujit Basak Complainant against OP Sadhan Banik and Abhijit Mitra under C.P. Act, 1986 in a matter relating to housing dispute.
The brief facts of the case is as follows: complainant is a owner of a plot of land measuring more or less 3 cottahs 12 chittaks lying and situated at Mouza – Bansdroni, J.L. No. 45, C.S. Plot No. 712 (P), 765 (P); LOP No. 87; now within the limit of KMC being premises no. 20, Niranjan Pally, Kolkata – 700070, P.S. Regent Park. KMC Ward No. 113; District 24 Parganas South by way of Deed of Gift duly executed by his father namely Hrishikesh Basak since deceased registered before the ADSR at Alipore recorded as book No. I, CD volume No. 15, pages – 16 to 29 being no. 3192 for the year 2010 morefully described in the schedule A hereinunder written. The complainant entered into a development agreement with OP nos. 1 and 2 who are partners of Banik and Mitra Construction, having its office at C/5 Niranjan Pally Kolkata 700070 P.S Regent Park. The development agreement was duly registered before ADSR at Alipore.
As per the development agreement the OPs agreed to construct a multi storied building within 18 months from the date of sanction of the building plan by KMC. The Opposite Parties obtained a power of attorney for development on the said plot of land, which was duly registered before ADSR Alipore being no. 04800 / 2013 on 14.06.2013.
By the 2nd Schedule of the development agreement the owner’s allocation etc have been specified. The OPs were to make a payment of Rs. 5,00,000/- to the complainant. Out of this Rs. 5,00,000/- a sum of Rs. 1,00,000/- was paid on the date of execution of the development agreement. The remaining 4,00,000/- was agreed to be paid at the time of handover of owner’s allocation.
In accordance with the development agreement dt. 14.06.2013 the developer constructed a G+4 storied building described in schedule A, subject to some deviation of sanctioned plan issued by the KMC authority. However, the OPs did not deliver the possession of the owner’s allocation to the complainant as per development agreement dt. 14.06.2013.
Possession of 3 flats on the first floor were given to the complainant without possession letter.
Although 5 shop rooms were to be handed over to the complainant, possession of only 1 shop room was given by the OPs.
OPs also failed to provide garage space of 400 sq. ft. as provided in the development agreement. Neither was completion certificate obtained from the KMC authorities. The Opposite Parties prepared a supplementary agreement, after obtaining the sanctioned plan from the KMC without the consent of the complainant. They sent the supplementary agreement to the complainant for signature in the month of May, 2017 but the complainant refused to sign it as it was prepared without his consent.
Cause of action arose on 14.06.2013 when the development agreement was executed and plot of land was handed over to the OPs by the complainant. Cause of action arose again on 01.05.2017 when the OPs sent a supplementary agreement to the complainant for signature. Cause of action is continuing till date since the OPs / developer have not handed over completion certificate of the building to the complainant.
Under such circumstances, the complainant filed this consumer complaint. The notices were issued and the OP nos. 1 & 2 appeared and filed W.V.
The complainant prayed for adopting the complaint petition as their evidence on affidavit. No questionnaires were filed by the OPs or evidence filed on their behalf. Thus the evidence of the complainant remains unchallenged.
The complaint petition / evidence and supporting annexure have been duly scrutinised and considered. It appears that the OPs have not issued any possession letter to the complainant for 3 flats or one shop room, although their possession was handed over. Four shop rooms are yet to be handed over. One garage of 400 sq. ft. has not been handed over till date. Thus the OPs have miserably failed and are deficient in complying with the registered development agreement signed on 14.06.2013. The complainant is a consumer in terms of C.P. Act, 1986 as he handed over his plot of land to OPs for development.
The Ld. Counsel for the complainant submitted that the possession of 3 flats and one shop room was handed over on 16.08.2018 that is beyond the stipulated date of 18 months from the agreement the OPs thereby being deficient in service. Since the OPs have not issued possession certificate to the complainant he is unable to procure electricity connection to his flat. In the absence of completion certificate the property cannot be mutated and is neither marketable.
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......”
On appraisal of all materials on record and in view of the position of law stated above, the CC/675/2019 is allowed on contest in favour of the complainant with the following directions:
The Opposite Party Nos. 1 & 2 are jointly and severally directed to
(1) Hand over four shop rooms and one parking space of 400 sq. ft. to the complainant.
(2) Hand over possession letter and completion certificate of the three flats, five shop rooms and one parking space to the complainant.
(3) Pay balance amount of Rs. 4,00,000/- to the complainant as per development agreement, to the complainant.
(4) Pay Compensation of Rs. 1,00,000/- for delay and harassment, to the complainant.
All the above mentioned directions are to be complied within 60 days from the date of pronouncement of this order.
If the Opposite Parties fail to comply with the award within the stipulated period, complainant will be at liberty to put this order into execution.
Free certified copies are to be issued to all parties.
CC/675/2019 is disposed of accordingly.
