Date of Hearing: August 6, 2015
Date of Judgment: Friday, the 14th August, 2015
JUDGMENT
This is a Consumer Complaint u/s. 17 of the Consumer Protection Act, 1986 (herein after referred to as the ‘Act’) with a prayer for an order of compensation of Rs.38,38,000/- and interest thereon at 18% p.a. from 18.8.2009 till realization.
In a nut shell, the complaint case is that being the owner of the property they have entered into a development agreement with the Opposite Parties on 20.02.2008 for development of promotion of property lying and situated at 181, Sarat Chatterjee Road, P.O. & P.S. Paranashree, Kolkata-700060 for raising a construction of G+3-Storied building. It was agreed that the Opposite Parties being developer shall complete the construction within 18 months from the date of the sanction of the plan. It was further agreed that the Petitioner being owners shall be entitled to get 40% of F A R in covered area as will be calculated as per total F A R and the remaining portion would be absolutely in the allocation of the Opposite Party as Developer after providing the owner’s allocation as aforesaid. The Petitioners shall be entitled to receive 40% constructed area at the first instance and one is contended flat in complete and finished condition in the 2nd Floor and upon space of more or less 190 sq. ft. and also deliver the possession of 135 sq. ft. in front portion in the car parking space at the handing over owner’s allocation. The Petitioner alleges that the Opposite Party neglected to construct the building and providing car parking space in terms of the agreement and did not provide service and the same still are in deficiency. Hence, the Complaint.
The Opposite Parties by filing Written Version have disputed the allocations leveled against them contending inter-alia that the complaint suffers from mis-joinder of necessary Parties. The Opposite Parties have specifically stated that they have no obligation to correspond with Kolkata Municipal Corporation for obtaining completion certificate as there is no stipulation in the agreement for sale dated 20.02.2008 with regard to delivery of 190 sq. ft. possession of the covered space. It has been stated that the Complainant had asked for some extra work like granite stone in the kitchen, coloured tiles, vetrified tiles, etc. and these were done by the Opposite Parties and the Complainant has taken possession with full satisfaction from the Opposite Party. Accordingly, complaint should be dismissed.
During the hearing, Petitioner No.1 Shri Bhubaneswar Ghosh has sweared an affidavit treated as evidence on the part of the Complainant. Similarly, the Opposite Party No.2, Sri Bikash Saha has also adduced evidence by way of Affidavit. We have gone through the evidence rendered by the Parties – both orally and documentary and scrutinize the materials on record.
For adjudication of the dispute, the following points are required to be decided; viz. -
(1) Is the Complaint bad for defect of the Parties?
(2) Are the Petitioner consumer within the meaning of Section 2 (i)(d) of the Act?
(3) Whether in terms of development of agreement dated 20.02.2008 there was any deficiency of service on the part of the Opposite Party;
(4) Is there any scope on the part of the Opposite Party to bye-pass liability of obtaining completion certificate from Kolkata Municipal Corporation and,
(v) Are the Petitioners entitled to compensation, as prayed for? If so, the amount?
D E C I S I O N
Point No.1:-
The Complainants are spouses to each other. They have initiated the consumer dispute against M/s. Bikash Udyog and Company and Mr. Bikash Saha arraying them as Opposite Parties. The Deed of Agreement dated 20.02.2008 indicates that the Petitioner being owners had entered into an agreement with the Opposite Parties who are developers. Therefore, the Petitioners have impleaded the developer as Opposite Parties with an allegation of deficiency of service in fulfill the terms of agreement. The Opposite Parties have not clearly mentioned why the case shall be considered as bad for defect of Parties. Accordingly, this point is decided in the negative and in favour of the Petitioner.
Point Nos.2,3&4:-
These three points are taken up together as they are interlinked with each other. It remains undisputed i.e. on 20.02.2008 the Parties to the case had entered into an agreement for development of the property lying and situated at premises No.181A, Sarat Chatterjee Road, P.O. & P.S. Parnashree, Kolkata-700060. In the agreement it was stipulated that the construction of the building would be completed within 18 months from the date of obtaining sanction plan. It was agreed by and between the Parties that the Petitioner being owners shall be entitled to get 40% of the total F.A.R, in covered area as will be calculated as per the total F.A.R. and 60% of F.A.R. would go in favour of the Opposite Parties for construction cost which constituted the consideration paid on behalf of the Petitioners.
The Petitioner has executed Power of Attorney authorizing the Opposite Parties to develop the property.
The possession certificate indicate that on 23.6.2011 the Petitioner had receive vacant unencumbered possession of one flat measuring 1200 sq. ft. more or less super built-up area together with car parking space in the ground floor of the aforesaid premises.
The materials on record indicates on several occasions the Petitioner issued legal notice to the Opposite Parties for possession certificate and to provide car parking space in accordance with the agreement but the Opposite Parties did not pay any heed.
In course of advancing argument, Ld. Advocate for the Petitioner has submitted that being developer the Opposite Parties were under obligation to procure completion certificate in accordance with Section 403 of the Kolkata Municipal Corporation Act. In support of his contention he has referred us to the provision of Section 403 of Kolkata Municipal Corporation Act, 1980. Ld. Advocate for the Petitioner has also taken us to a decision of the Hon’ble Supreme Court of India reported in 2008 (5) Supreme 76 (Faquir Chand Gulati vs. Uppal Agencies Pvt. Ltd. and another). In paragraph 27 of the said decision it has been held that even the prayer for completion certificate is not sufficient and the builder will have to do whatever is required to be done to bring the building in consonance with the sanction plan so that Municipal Authorities can inspect and issue the completion certificate. In that perspective, the contention of the Opposite Parties that there is no stipulation in the deed to collect the completion certificate on the part of them could not inspire us at all rather clearly indicates deficiency in service on the part of the Opposite Party as required u/s. 2(1)(o) of the Act to a consumer i.e. the Petitioner herein.
We have gone through the sanction plan of the Corporation which indicates that there are only 3(three) car parking space. However, it has come to surface that the Opposite Parties have already sold total 300 sq. ft. to the three purchases, viz. (i) Sri Mrigen Banerjee; (ii) Sri Sujit Barua, and (iii) Ms. Jinia Barua out of 410 sq. ft. of entire car parking space after delivering 135 sq. ft. at the front position of the car parking space to the petitioner. It indicates clear anomalies which is not in consonance with the sanction plan and, perhaps, for that reason the Opposite Parties are applying dilly-delaying tactics to obtain the completion certificate.
Therefore, all the above points are decided in favour of the Petitioners and disposed of accordingly.
Point No.5:-
On evaluation of the materials placed before us and having regard to facts and circumstances of the case we have no hesitation to hold that the Petitioners are entitled to get compensation from the Opposite Parties as there was clear deficiency of service on the part of the Opposite Parties. However, it is not a easy process to ascertain the actual compensation in a case like this. The Petitioners are in possession of the flat since 23.06.2011 but at the same time the Opposite Parties have committed misdeeds by not keeping words in terms of the Deed of Agreement which is the foundation of relationship between the owner and developer that is the Parties of this case.
The Petitioner has prayed for Rs.38,80,000/- for compensation specifying Rs.30,000/- for licensing and registration, Rs.50,000/- for registration certificate, Rs.1,00,000/- for permission, Rs.10,00,000/- for completion certificate, for copy of sale deed, Rs.11,40,000/- for delivery of possession, Rs.4,00,000/- for delivery of possession of 135 sq. ft. for car parking space, Rs.3,00,000/- for insurance, Rs.30,000/- for registered deed of deed of assurance, Rs.5,00,000/- for facilities and amenities for 3,00,000/- for harassing.
Taking into the consideration of the fact that the Petitioner of this case are required to obtain completion certificate from Kolkata Municipal Corporation, a compensation to the tune of Rs.10,00,000/- on account of fault of the Opposite Party would meet the ends of Justice . In addition to the same, the Petitioner would get another sum of Rs.1,00,000/- as compensation for harassment and mental agony aggregating a sum of Rs.11,00,000/- in total together with interest thereon @ 7.5% p.a. from the date of delivery of possession i.e on 23.06.2011.. This point is also disposed of accordingly.
In the result, the case succeeds in part. It is, therefore,
O R D E R E D
that the complaint case is allowed on contest in part with costs which is quantified by us at Rs.10,000/- to be paid by the Opposite Parties to the Petitioners.
The Petitioner would get a compensation of Rs.11,00,000/- together with interest thereon @ 7.5% p.a. from 23.06.2011 which must be paid by the Opposite Parties in favour of the Petitioner within one month from date, failing which, the Petitioner shall have liberty to get the award to executed through this Commission.
Let copies of this order be supplied to the Parties free of cost.
