JUDGEMENT

          Complainant by filing this complaint has submitted that he entered into an agreement with Shri Subhra Jyoti Basu, Promoter for purchasing a flat in Sagarika Apartment at 3^rd Floor, Flat No.-7, measuring 1050 Sq. Ft. @ Rs.850/- per Sq. Ft. situated at 14/34, Nagendra Nath Road, P.S.- Dum Dum, Kolkata – 700028 after paying Rs.4 lacs by cheque to the said Developer as an advance on the same day and Subhra Jyoti Basu handed over possession of the flat on 11.08.2008 and registration was done on 31.03.2009 for a stamp duty of Rs.52,020/- and op assured the complainant that he would finish the pending works of the building and after getting the completion certificate from municipality, they would provide the same.  But after a lapse of 5 years, he did not give the completion certificate nor had he done the unfinished works, though complainant along with other co-owners of the flat frequently visited his house to request verbally and in writing to get the unfinished works and arrange for completion certificate from Municipality.  But op did not turn up.  So, the complainant for the negligent and deficient manner of service and for adopting unfair trade practice, filed this complaint for passing such necessary order so that the op may provide completion certificate from Subhra Jyoti Basu and complainant may get separate holding number and pay Municipal tax in his name and may also be ordered to erect a boundary wall around the building and inside and outside painting which has not yet been done and complainant prayed for redressal.

          On the other hand op by filing written statement submitted that complainant’s entire allegation is false and fabricated and complainant is not entitled to get any relief because op is not a service provider and claim of the complainant is not come under the purview of the C.P. Act 1986.  Further it is submitted that complainant got possession of the flat on 11.08.2008 and Registration was done on 31.03.2009, then what prevented the complainant to come earlier before this Ld. Forum for his alleged claim and relief.  Op has stated very subsequently that he never assured at the time of entering into agreement on 02.05.2008 or at the time of execution of the sale deed on 31.03.2009 or any other subsequent date as falsely alleged by the complainant that op assured him that regarding completion certificate etc.  Further op submitted that he made the construction of the building as per the agreement and there is no mention in the agreement that he will have to provide the completion certificate and op further stated that the sanction for construction of the building was granted by the Municipality in the name of the land owners and not in the name of the op and as such it is the duty of the land owners to arrange for the same and not the op and in the agreement there is no mention that the op would make boundary wall around the building and painting inside and outside of the building and it is further submitted that complainant is not entitled to get any relief from the Ld. Forum and the complaint should be dismissed.

                                                         Decision with reasons

          On in depth study of the complaint and written version and also considering the documents as filed by the complainant, it is clear that initially agreement for sale was executed in between the complainant and M/s S.B. Properties, the Proprietorship Firm being registered by Subhra Jyoti Basu on 02.05.2008 and in the said Agreement, Developer is the vendor and as per Agreement developer entered into an agreement in respect of flats which were allocated to the developer in respect of Sagarika Apartment and by that Agreement, Developer agreed to handover possession of the apartment of the purchasers on 31.05.2008 and in that Agreement it is specifically mentioned that intended purchasers shall have to pay Municipal tax register and other taxes proportionately until and unless apartment shall not be separated in Municipal taxes in favour of the purchasers and in the Schedule-C of the said Agreement, it is specifically mentioned that the common area and facilities which shall be enjoyed by each purchaser and in that Schedule boundary wall and entrance and other are included.

          Truth is that subsequently the deed of sale was executed on 31.03.2009 which was registered finally on that day and possession of the flat was handed over on 11.08.2008.  But fact remains as per Agreement and Deed of Sale it is clear that it is the duty of the Developer to make separate holding number and assessment of Municipal Taxes in respect of the present complainant as purchaser and as per said Sale Deed (Clause-9j) the Developer shall have to handover the entire apartment and portion of land to the Association or the Cooperative Societies as would be formed by the apartment owners.  As per Sale Deed purchaser shall have full rights to have, possess, hold and enjoy the said flat together with proportionate undivided share of land more fully described in the Schedule A of the said Sale Deed and after completion of the construction of the said building the Developer shall have to hand over the said flat in favour of the purchaser. 

          So, considering the Sale Deed and the Agreement it is clear that the agreement was made in between the complainant and the op and op sold away the flat in dispute in favour of the complainant i.e. flat No.7 of 3^rd Floor of the building measuring 1050 Sq.ft. of the said apartment.  No doubt that has been sold and complainant has been possessing but till today completion certificate has not been handed over to the flat owners.  Their separate holding number are not made by the Municipality for non-submission of completion certificate by the Developer and it is proved from the document that the Sale Deed dated 31.03.2009 and agreement dated 02.05.2008 that the op sold away his allocated portion of flats but not any portion of the owners.

          No doubt op is constituted attorney of the owners, but owners have not sold their any allocated portion of the said apartment to the present complainant.  So, it is clear that it is the responsibility and duty on the part of the op to hand over the completion certificate to the complainant as he sold away his allocated portion and Agreement was made in between the Developer and the complainant.  So, under any circumstances land owners are not anyway responsible for any other act of the Developer.

          Another factor is that till today the said Sagarika Apartment and its landed outside property has not been handed over to the Sagarika Apartment owners because op has failed to bring out the completion certificate and he has failed to give any chance to the complainant to mutate his name in the Municipality as a separate assessee and tax payer and South Dum Dum Municipality has not issued any such separate holding number in favour of the complainant for non-submission of the completion certificate.

          So, no doubt the Developer is responsible to hand over the same as per Agreement but that has not been done.  At the same time it is proved that op has not completed the boundary wall of the said apartment area and op has failed to prove that boundary wall has been completed and that has been painted after plastering and inside and outside of the building are already painted as per terms and conditions of the agreement because complainant as purchaser has his right to enjoy the roof of the building and boundary wall of the building and other co-related part of the said building.  But op has not completed all the matters for which op as Developer has violated the terms and conditions of the Agreement including the Sale Deed and it is settled principle of law that unless and until completion of certificate is handed over to the complainant/purchaser of the flat, liability and responsibility of the developer cannot be discharged and in this case op/Developer has failed to discharge his liability and no doubt it is the deficiency and negligence of service on the part of the op even after selling out of the flat in favour of the complainant as per Agreement and no doubt the deficiency and negligence on the part of the op is proved very well.  But op has tried to shift his liability to the owners but there is no scope in the present fact and circumstances and in view of the Agreement and Sale Deed as executed by the op in favour of the complainant. 

          But considering the written version of the op, it is clear that op has failed to prove that he has completed the entire Sagarika Apartment and outside and inside wall of the said building has been painted and boundary wall has been completed and it has been plastered and painted.  So considering that fact it is proved that this op/Developer has adopted unfair trade practice and he has been causing sufferance of the apartment owners and apartment owners have not yet got the possession of the entire apartment including landed property etc because the completion certificate has not yet been secured by the Developer.

          So, invariably for that reason op has caused mental pain and sufferings to the present complainant including every apartment owners and moreover some incomplete work has not yet been completed by the op which must be done by the op and it cannot be kept in abeyance for years together to harass the purchasers of the flats in such a way by the op and such a conduct is no doubt an unfair trade practice for which we are convinced to hold that complainant has been able to prove the deficiency and negligence on the part of the Developer and also their overact and unfair trade practices beyond any manner of doubt.

          In the result, the complaint succeeds.

          Hence, it is

                                                                   ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 10,000/- against op.

          Op/Developer is hereby directed to hand over completion certificate after collecting it from Municipality to the complainant the apartment owners and also to complete incomplete work like boundary wall, its plastering and painting and also inside and outside painting of the entire Sagarika Apartment within one month from the date of this order failing which for each month’s delay op shall have to pay punitive damages @ Rs.25,000/- per month till full completion of the said unfinished work and handing over completion certificate of the said apartment to the present complainant and if any such punitive damage is collected, it shall be deposited to this Forum and till full satisfaction of the decree the said punitive damages shall be charged and op shall be bound to pay the same to this Forum.

          For causing mental pain and agony and suffering, op shall have to pay compensation of Rs.30,000/- to the complainant within one month from the date of this order.

          Op is directed to comply the order very strictly failing which further penalty and fine shall be imposed by starting penal proceeding u/s 27 of C.P. Act 1986 so op shall be cautious about compliance of the present order and for any sort of disobeyance this Forum shall have to take strong step against the op by starting criminal proceedings.