Hon’ble Mrs. Soma Bhattacharjee, Member
CC/393/2017 has been filed by Urmimala Lahiri and Pallabi Lahiri against Vindhya Projects Pvt Ltd. and others u/s 17 (1) (a) (i) of Consumer Protection Act, 1986 in a matter of housing dispute.
The gist of the case is as follows: The complainants were in search of a self contained flat along with car park having all modern facilities and amenities from a reputed builder for purpose of residence. They came across hoarding displaying advertisement of a G+8 storied building project named Vindhya Heights being developed by Vindhya Projects Pvt. Ltd., OP no. 1. The complainants met Mr. R.S. Aggarwal OP no. 2 who declared himself to be a Director of the said Vindhya Project Pvt. Ltd. After discussion with the Director, the complainants entered into an agreement for sale dt. 25.08.2011on payment of part consideration money. From the agreement for sale, the complainants came to know that the land on which the proposed project was going to be developed belong to OP nos. 3, 4 and 5 namely Pradip Kumar Paul, Mukuleswar Paul and Dilip Kumar Paul. OP nos. 3, 4 and 5 had granted general Power of Attorney in favour of OP 2 and this was registered in 2007. It was seen from the agreement for sale that the developers had obtained sanctioned plan dt. 09.03.2010. The agreement specified that the project would be completed by the developer within 21 months (clause 13 of the Agreement) failing which they shall be liable to pay interest @ 15% p.a. on the amount already paid by the purchasers (clause 19 of the Agreement).
The complainants paid a consideration amount of Rs. 31,00,000/-, on which date cause of action arose. Deed of sale of the scheduled property was executed on 11th day of March, 2013 and it was followed by delivery of possession of the said flat and car parking space. After receiving delivery of possession the complainants found out that there was pending / incomplete works within the flats which were to be sorted out by OP no. 2. They issued a letters dt. 27.07.2014, 12.09.2015 to the OP no. 2. The OP no. 2 was requested to complete the pending works and to issue completion certificate. They also informed that the cracks had appeared outside the surface of the building and many amenities which have been earlier promised by the developer had not been provided.
The major points listed were non compliance and non submission of Building Completion Certificate, Community Hall and Gym being not ready, Inadequate car park space in few specific cases, and cracks developed in the outer wall / structure of the building, and removal of stacked materials occupying a portion of the ground space.
The complainants in their complaint have prayed for handing over a completion certificate, OPs to pay a compensation of Rs. 10,00,000/- , OPs to pay the costs of proceedings assessed at a sum of Rs. 1,00,000/-.
The complainants filed CC/393/2017 against the OPs as they fell short of fulfilling their assurances in the Agreement for Sale. OP no. 1 and 2 entered appearance and filed W.V. OP nos. 3, 4 and 5 neither appeared nor filed W.V. So, the case proceeded ex parte against them.
In their W.V the OP nos. 1 and 2 denied and disputed the allegations of the complainant. They stated that sale deed was executed on 11.03.2013 and since then the complainants are in possession. After lapse of 4 years, just to cause undue harassment to the OPs, the complainants have filed this case. In the deed of conveyance there is no mention of community hall, gym, kid’s garden. The sale deed was executed upon perusal and satisfaction of the complainants. Thus there is no ground to demand these amenities from the developer. The allegation of cracks in the exterior walls of the project does not hold ground since the maintenance of the building now lies in the hand of the association of purchasers. Since April, 2014 any repair on the exterior wall is to be undertaken by this association. The case of the OPs is that the complainants are now owners of the property too. Their cooperation is necessary for obtaining completion certificate from the KMC. The developer has already submitted notice of completion to the Executive Engineer Borough No. 12 of KMC for issuance of completion certificate (copy of the letter kept in the record).
In his argument the Ld. Counsel Nitindra Mohan Mookerjee submitted that the OP/Developer had promised certain amenities such as gym, community hall etc in their advertisement / brochure they published to seek purchasers. However, the conveyance deed, which was drafted by the lawyer engaged by the OPs, carefully omitted them.
Ld. Counsel also submitted that the developer, while filing Notice for issuance of CC before the KMC, did not attach the enclosures required under KMC Building Rules, 1990. On non receipt of CC the developer did not file appeal before the Municipal Commissioner and the Mayor, as per provisions in law.
Ld. Counsel stated that the Engineer Commissioner appointed by SCDRC also highlighted in his report that (i) no cracks were seen in the inside walls of the scheduled flat but cracks were seen on the external walls of many flats (ii) dampness was seen in inner walls of the flat (iii) building was structurally safe and superficial cracks, dampness etc may not affect the structural stability of the entire G+8 building (iv) large amount of scrap materials was found stacked in covered car park marked 1 and 2 (v) there was no gym, community centre etc in the building (vi) the building plan was valid up to 2015 but the CC was applied for in 2017. As on the date of the report KMC had not issued completion certificate.
Ld. Counsel cited Civil Appeal No. 3343 of 2020 SC wherein the Hon’ble Supreme Court has observed “Any deficiency detected post purchase of flat opens up avenue for aggrieved consumer to seek relief before Consumer Forum”.
In his argument Ld. Counsel for the OP nos. 1 and 2 Avijit Bhuina stated that the complainants executed and registered the deed of sale upon perusal and satisfaction. He relied upon Delhi SCDRC order in Sareena Kochar Vs M/s. DLF Homes Developers Ltd. decided on 09.10.2017 “Keeping in view ..... Once petitioner has taken over possession with open eyes and without any precondition, he ceases to be a consumer”. The Deed was signed in 2013 while CC/393/2017 was filed in the year of 2017.
The argument of the Ld. Counsel for complainant that no gym, community hall does not hold good since these amenities have not been include by the developer in their written agreement.
The Ld. Counsel for the OPs submitted that the dumping of scrap material in car park 1 and 2 also cannot be considered as negligence of the OPs since they do not belong to the complainants. This matter falls within purview of section 12 (1)(c) of C.P. Act, 1986 which was not complied with by the complainants.
He also highlighted that, upon direction of this Commission Ld. Engineer Commissioner KS Bhatia submitted his report on 30.07.2018 after conducting a spot enquiry. OPs 1 and 2 in their W.O to this report stated that the Ld. Engineer Commissioner has not stated the causes of the dampness in the walls of the flat. He has emphasised the structural stability of the building.
The Ld. Advocate of the OPs submitted that for matters of boundary wall, cracks in the exterior walls, the complainant ought to have lodged a joint complaint along with the other flat owners, after taking due leave from the SCDRC as provided under section 12 (1) (C) C.P. Act, 1986. The storage of scrap articles in car park nos. 1 and 2 which does not belong to the complainant cannot be part of this complaint.
Heard and considered carefully the written argument and oral submissions of Ld. Counsel of both sides. Taking into account all the documents filed in the record, the W.V of the OPs, evidences of both sides and their cross examination it appears that the OP nos. 1 and 2 are deficient in service in terms of C.P. Act, 1986 to the extent of delay in handing over possession of the scheduled flat and car park and also in not handing over completion certificate to the complainants. In Civil Appeal No. 4000 of 2019 decided on 11.01.2022 the Hon’ble Apex Court observed – “ 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”. Consequently the CC/393/2017 succeeds on contest.
Hence it is ordered:
(i) The Opposite Party nos. 1 and 2 are jointly and severally directed to handover Completion Certificate of the building / project to the complainants within 3 months from the date of pronouncement of this order.
(ii) The Opposite Party nos. 1 and 2 are jointly and severally directed to pay compensation to the tune of Rs. 2,00,000/- for harassment due to delay in handing over the scheduled flat and parking and Completion Certificate, within 3 months from the date of pronouncement of this order.
(iii) Opposite Party no. 1 and 2 are jointly and severally directed to pay litigation cost of Rs. 20,000/- within 3 months of pronouncement of this order.
If the Opposite Parties fail to comply with the judgment within the stipulated period, complainant will be at liberty to put the order into execution.
Free plain copies to be delivered to all the parties.
