Hon’ble Mrs. Dipa Sen (Maity), Presiding Member
The instant complaint petition has been made by the Complainant, Mr. Bikash Chandra Das against the Opposite Party Developer/Supriya Enterprises alleging deficiency in service in relation to housing construction.
Brief facts of the present complaint case is that being an absolute owner of a parcel of land measuring an area of 150.11 sq. meter more or less at Premises No. 19-004, in Street No.4 (earstwhile Plot No.98 in Block No.AK/MIGI), New Town, Police Station-Rajarhat has intended to develop the said property by raising construction of G+4 storied building in accordance with sanctioned plan but due to lack of experience the Complainant finding no other alternative appointed the Developer /Opposite Party for construction of a building at the said land in accordance with the sanctioned plan from N.K.D.A. One Development Agreement was executed on 06-11-2015 between the Complainant and the Opposite Party with certain terms and conditions contained in the Development Agreement for the purpose of construction of a building according to sanctioned building plan. As per the said Agreement it was agreed between the parties that the Developer shall hand over the possession certificate and complete the construction within 12 (twelve) months from the date of the execution of the Agreement with the grace period of six months. As per that Agreement the Developer shall construct the building at his own cost and the Developer shall hand over the entire second floor and one demarcated car parking space on the ground floor to the owner. As per the said Agreement dated 06-11-2015 Opposite Party/Developer has to pay Rs.40,00,000/- (Rupees Forty lakhs) and to deliver the possession letter along with completion certificate to the Complainant. After construction the Opposite Party handed over possession of the said flat to the Complainant. But in spite of his several requests the Opposite Party did not hand over any possession letter, completion certificate and balance amount of Rs.20,00,000/- (Rupees Twenty lakhs) to the Complainant. Without finding any other alternative the Complainant is compelled to approach before this Commission for redressal of his grievances with the prayer for directing the Opposite Party to complete the construction in the property in question and to pay Rs.20,00,000/- (Rupees Twenty lakhs) with 12% interest and to handover the completion certificate and to pay compensation of Rs.5,00,000/- (Rupees Five lakhs) and litigation cost of Rs.50,000/-(Rupees Fifty thousand) to the Complainant.
Ld. Counsel for the Complainant submits that the Opposite Party handed over possession of the incomplete flat to the Complainant without giving any possession letter and without proper demarcation of the car parking space on the ground floor. The Complainant further submits that as per the Agreement it was decided between the parties that the Opposite Party shall pay Rs.40,00,000/-(Rupees Forty lakhs) only but in spite of his repeated requests the Opposite Party paid 20,00,000/-(Rupees Twenty lakhs) only to the Complainant and did not pay the balance amount of Rs.20,00,000/- (Rupees Twenty lakhs). Moreover, no possession letter or completion certificate was handed over to the Complainant. The Complainant sent one letter dated 26-03-2019 to the Opposite Party through his advocate demanding demarcated covered car parking space, possession letter, completion certificate and agreed balance amount of Rs.20,00,000/-(Rupees Twenty lakhs) from the Opposite Party. But in spite of receiving said letter the Opposite Party did not reply the same.
On scrutiny of record it appears that the Opposite Party appeared but Opposite Party only filed W/V but did not file evidence on affidavit, questionnaire and replies and remained absent for consecutive dates and the case was fixed for ex-parte hearing on 16-01-2023.
On the other hand the Complainant has filed evidence on affidavit, development agreement dated 06-11-2015 along with other documents and BNA in support of his case.
Having heard the Ld. Counsel for the Complainant and on careful perusal of materials on record it clearly appears that the Complainant is a consumer as defined U/s. 2(1)(d) of C.P Act, 1986 as the Complainant being the absolute owner of land and with an intention to develop the said land and to construct G+4 storied building hired services relating to housing construction from Opposite Party/Developer in lieu of his land as consideration.
The Hon’ble Apex Court in a case Samruddhi Co-operative Housing Vs. Mumbai Mahalaxmi Construction Pvt. Ltd. has already decided that it is the duty of the Developer to hand over the completion certificate and as the same was not handed over till date we can consider that the cause of action is still continuing as failure to obtain occupancy certificate is a breach of obligation. It also appears from the careful perusal of the Agreement dated 06-11-2015 Clause No.23 that, “the developer shall obtained completion certificate at its own cost and expenses from the NKDA”. But the completion certificate was not handed over to the Complainant as per the Agreement which can be considered as deficiency in service on the part of the Developer. The Complainant has further stated that the construction work of the subject flat in landowner’s allocated portion is still remained incomplete.
The Opposite Party has only filed W/V but did not file evidence on affidavit, questionnaire and replies as such the statement of the Complainant remained unchallenged and uncontroverted.
It also clearly appears from perusal that one development agreement was executed on 06-11-2015 between the Complainant (land owner) and the Developer. But in spite of expiry of several years Opposite Party did not provide completion certificate and did not complete the construction work.
Any fault, in perfection, shortcoming or inadequacy in the quality, nature and manner or performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service is defined as “deficiency” U/s. 2(1)(g) of the Consumer Protection Act, 1986. In spite of expiry of several years Opposite Party did not provide completion certificate which we consider serious deficiency in service for which the Complainant has to suffer a lot.
Considering the facts and circumstances of the instant case, the Complaint case being No.321/2019 is hereby allowed ex-parte with the following directions:-
- The Opposite Party is directed to complete the incomplete work of the said subject flat and to obtain completion certificate from the concerned authority N.K.D.A and to hand over the same within 90 days from the date of communication of this order.
- The Opposite Party is further directed to pay agreed balance amount of Rs.20,00,000/- (Rupees twenty lakhs) only to the Complainant along with interest of 9% from the date of Agreement dated 06-11-2015 till its actual payment.
- The Opposite Party is further directed to pay Rs.1,00,000/-(Rupees One lakh) only to the Complainant for his mental agony and harassment along with litigation cost of Rs.25,000/-(Rupees Twenty five thousand) only.
The above payment must be paid to the Complainant within 90 days from the date of communication of this order.
The Complainant is at liberty to put the order into execution for non-compliance of the above order.
Office is directed to hand over a copy of this Judgment to the parties free of cost.
