Hon’ble Mrs. Soma Bhattacharjee, Member

CC/148/2019 has been filed by Sankar Prasad Kar and another, complainants against Manas Dutta developer u/s 17 of the C.P. Act, 1986 in a dispute of housing construction.

The gist of the case is that the complainants are the joint owners of the scheduled plot of land i.e. premises no. 1518 Mahendra Banerjee Road Kolkata 60 under P.S Parnashree described as schedule A through purchase and their names are recorded under KMC and BLLRO of Government of West Bengal. The complainant constructed one brick built room and iron shutter and park their private vehicle no. WB-08-0994 in the said room. Upon negotiation, the complainants (owners) entered into a Development Agreement with the Opposite Party. (Developer) on 30.06.2014 duly registered on 09.07.2014 with a view to construct straight three stored building with certain terms and conditions contained therein. The complainants (owners) have also executed and registered a Power of Attorney on 09.07.2014 in favour of the Opposite Party (Developer) to act and authorised to sign all necessary papers including to obtain sanction building plan and other necessary  papers as required for construction of the building.

Owners’ allocation as per the development agreement was entire portion on the second floor consisting of one flat measuring 783 Sq. ft super built up area (built up area 626 sq. ft.) and another flat measuring 428 sq. ft. super built up area (342 sq. ft. built up area) on the second floor and one flat measuring 428 sq. ft, super built up area (342 sq. ft. built up area) on the ground floor and one garage measuring 135 sq. ft. at Premises No. 1518, Mahendra Banerjee Road, within K.M.C. Ward No. 129, Kolkata – 700060, Police Station Parnasree, District : South 24 Parganas.

The complainants sent written notices to the OP for handing over the owner’s allocation as per development agreement but to no effect. As a result they were compelled to file CC/148/2019 and notices were served upon the OP / developer. The developer entered appearance and filed W.V. Evidences were filed by both sides and they were cross examined by each other.

The OP did not hand over physical possession of the owners’ allocation to the complainants even after the stipulated period as per development agreement was over. But he sent a letter of possession by registered post dt. 14.12.2017 to the complainants. On 05.09.2017 the OP sent a letter to the complainants claiming a payment of Rs. 2,87,400/- for undertaking extra work (1) Special roof treatment (2) Difference of cost for fixing KAJARIA tiles (3) Construction of extra area on ground floor and second floor at request of complainant in the owners’ share of the property, but no supporting bills were annexed.

Heard the submissions of the Ld. Counsels for the complainants and the OP. The Ld. Counsel for the complainant has cited the following Judgments:

1. a) Failure to obtain an occupancy certificate is a breach of obligation imposed on the Developer.

      b) Failure to obtain an Occupancy certificate or failure to abide by the Contractual obligation amounts to deficiency service. Liable to pay compensation. 2022 (1) CPR 429 (S.C.)

2. Agreed terms and condition of Agreement entered into by two sides be duly complied with within the time specified in the Agreement. 2019 (1) CPR 432 (N.C.)

3. It is the duty of the Builder to obtain the completion certificate from the concerned competent authority. 2022 (1) CPR 522 (N.C).

Considered carefully all material facts and evaluated documents annexed in the case record. The complainants are consumers as they have handed over their property for services from the Opposite Party in terms of development agreement. In view of the citations of judgments of the Apex court and NCDRC mentioned above and since the C.P. Act, 1986 is designed to protect the interest of the Consumers, CC/148/2019 succeeds on contest.

It is ordered:

1. The OP/Developer is directed to handover physical possession of the three flats and one car parking space to the complainants as per schedule, within 60 days of this judgment.

2. The Opposite Party is directed to hand over completion certificate of the scheduled property to the complainants within 60 days.

3. The Opposite Party is directed to pay a compensation of Rs. 1,00,000/- for delay in handing over completion certificate and mental harassment thereof, within 60 days.

If the Opposite Party fails to comply with this order within stipulated period, the complainant will be at liberty to put the order into execution.

Free plain copies be delivered to all parties.