Date of Filing : 15.02.2018
Date of Judgement: 26.12.2019
Mrs. Balaka Chatterjee, Hon,ble Member
This petition of complaint is filed under Section 12 of the Consumer Protection Act, 1986 by (1) Shri Surajit Pal (2) Anne Kollnnyur (3)Dipali Banerjee (4) Barun Roy (5) Smt. Baisakhi Roy (6) Kishore Lal Banerjee (7) Smt. Sadhana Banerjee (8) Shri Shyama Prasanna Ghosh (9) Gautam Roy (10) Kajal Roy (11)K. C. Ramamurthy (12)Sriparna Chatterjee alleging deficiency in service on the part of the Opposite Parties ( referred as OP hereinafter ) (1) M/s. Chittaranjan Construction Pvt. Ltd. (2)Shibu Banerjee (3) Shombhu Banerjee.
Facts in brief are that the Complainant Nos. 5 and 6, Complainant Nos. 7 and 8 and the Complainant No. 9 are the owners of three plots of land being Premises No. 982, Kalikapur Road, Kolkata – 700 078, 983 Kalikapur Road, Kolkata – 700 078, and 981, Kalikapur Road, Kolkata – 700 078 respectively. The complainants have stated that the owners of the said three plots of land decided to amalgamate those three plots and by a registered deed being no. 4523 for the year 2007, amalgamated said three plots of land and mutated their name accordingly to the record of K.M.C. and after amalgamation the Plot was numbered as K.MC Premises no. 982, Kalikapur Road, Kolkata – 700 078. The complainants have further stated that the said owners i.e. complainant nos. 5,6,7,8 and 9 entered into an agreement for development on 17.02.2008 with the OPs to develop the said plot of land by constructing building and the said owners executed a Power of Attorney in favour of the developer accordingly and as per terms of the said agreement for development the developer was entitled to get 55% of the entire constructed area. It is stated by the complainants that after completion of construction of the said building the owner’s allocation was duly handed over to the owners and the developer also sold out the flats from developer’s allocation to the intending purchasers and by virtue of the said transfer/deed of agreement, the complainants no.1,2,3, 4 and complainant no. 10 to 12 became the owner of the flat constructed by the developer on the said premises. It is further stated by the complainants that even after construction of the building and delivery of possession of the flats, the developer failed and neglected to perform their contractual obligations as the developer failed to handover the Completion Certificate, to apply for registration of Society/organisation of the building as per provision of the Apartment Ownership Act, to provide any document of purchasing and maintenance of Lift installed at the building in question, to provide document relating to the drainage system and original sanction of drainage, document relating to Ferrule connection, electricity connection of the building and electricity connection of individual flat owners to the complainants. The complainant have again stated that the complainants had arranged meeting on 20.11.2012, 02.05.2013 and 02.08.013 and the resolutions of the said meeting was sent to the developer as well as to the Secretary , Consumer Affairs Department and further, a meeting was held before the Secretary, Consumer Affairs Department on the basis of a complaint and the OP was present before the Secretary and as per request of the /Consumer Affairs Department, the developer was requested to construct or re-construct the construction as per sanctioned building plan, to submit notice for completion, to apply for registration of the organisation formed by the flat owners and to pay the property tax applicable as per the terms of the development agreement. However, decision of the said tripartite meeting has not been complied by the developer and as such being aggrieved the complainants by filing the instant consumer complaint pray for direction upon the OPs to discharge their obligation as per terms and conditions of the agreement for development dated 17.02.2008 and to handover all original documents as stated in the petition of complaint, to pay Rs. 2,00,000/- towards compensation and Rs.50,000/- towards cost of litigation.
Complainant annexed outstanding certificate issued by KMC, tax receipts demand details, copy of minutes of 3rd, 4th and 5th meeting held by the flat owners, copy of letter sent to the OP No.1 and request issued by Consumer Affairs Department.
OP No.3 contested the case by filing W.V. denying and disputing all the allegations made out in the petition of complaint stating, inter alia, that as per terms of the agreement executed by and between the owners and developer, OP No.3 handed over the Completion Certificate of the building to the complainant and made arrangement for registration of deed of conveyance in respect of the flats owned by the intending purchasers but the complainants created disturbance to stall the process of registration. OP No.3 has further stated that the Minutes book completed in all respect has been handed over to the complainants and all the papers and documents has been submitted to the complainant No. 5. The OP No.3 has further stated that the electricity connection of the said building has been obtained in the name of the developer company and now the situation is that if the intending purchasers intend to take new connection on their own they have to initiate their own process. Since OP No.3 has paid a sustainable amount to the CESC. It is further stated by OP No.3 that as per direction of Consumer Affairs Department they have discharged their obligation and submitted the prayer for obtaining the Completion Certificate and paid Rs. 28,000/- as property tax. It is further stated by OP no.3 that the complainant no. 5 and 6 on various occasions took considerable amount from the OPs taking different plea though the OPs handed over possession of the owner’s allocation to the owners as well as to the intending purchaser their share of flat and already sold four car parking spaces out of six car parking spaces from their allocation and therefore, there is no deficiency on the part of these OPs so the complainants are not entitled to get any relief.
OP No.3 annexed payment slip, revised MSD bill, letter dated 30.04.2012 issued on behalf of the complainant no. 5 and 6 to the OP No.2 and 3. Possession Certificates, application submitted by complainant no. 5, 6,7, 8 and 9 for obtaining Completion Certificate, letter to the complainant No. 5 regarding payment of Rs. 28,000 by the OPs towards the payment of Corporation tax and several other documents.
OP No.2 also contested the case by filing separate W.V. reiterating the same facts stated by the OP No.3.
Both parties adduced evidence followed by cross-examination in the form of questionnaire and reply thereto.
In course of argument, Ld. Advocate on behalf of the complainant has narrated the facts mentioned in the petition of complaint. Ld. Advocate on behalf of the OP submits that as the matter has already been settled by the Dy. Assistant Director , Consumer Affairs Department. So the claim of the complainant is bad in law. The OPs has stated in their defence that the complainant has received money time to time from the OPs. The case has been initiated after OPs stopped making payment to the complainant.
Point for determination :
(1) Whether there is deficiency on the part of the OP .
(2) Whether the complainant is entitled to the relief as prayed for .
Point Nos. : 1 & 2 :
Both point are taken up together for comprehensive discussion an decision.
Admittedly, a development agreement was executed by and between the land owners i.e. OP No.5, 6, 7, 8 and 9 and the developer on 17.02.2008. It is also admitted that a registered Power of Attorney has been executed by the land owner in favour of the developer. It is evident that by strength of the said two documents, the developer constructed a building on a piece of land owned by the complainant no. 5,6,7, 8 and 9. Admittedly, the owner’s allocation was handed over to the owners. Intending purchaser also received possession of their flat agreed to be handed over by the developer. It is alleged by the complainant that the Completion Certificate, documents regarding purchase of the lift and maintenance of the lift, sanctioned drainage plan, documents regarding ferrule connection, documents regarding electricity connection in respect of the building as well as in respect of the flats owned by the purchaser and documents regarding registration of Society has not been provided to the complainant. Regarding these allegations, the OPs submitted that they have handed over some documents to the complainant No.5 namely Tarun Roy which are as follows :
- Original building sanctioned plain (2) Several numbers of original deed. (3) All documents related to KMC water ferrule connection (4) Inside drainage papers of KMC ( Xerox copy ) filed (5) original notice for submission of Completion Certificate (6) ‘C’ Form of Lift. On perusal of documents on record that the OP No.3 annexed a document to the W.V. (No pagination marked) wherefrom it appears that the above-mentioned documents has been received by Tarun Roy i.e. OP No.5 by putting his signature thereon and said Tarun Roy has adduced evidence on behalf of the complainant. However, the OP No. 3 has claimed that he has handed over the Completion Certificate to the complainants. On perusal of W.V. and the other documents it appears that the Completion Certificate is yet to be obtained from concerned Municipal Body. A copy of notice for issuing completion certificate along with re-validation of sanctioned plan is filed by the OPs also supports the averment that the Completion Certificate has not been obtained yet and the OPs are liable to handover the said document to the complainant as per terms of the contract executed by and between the parties. The complainant have alleged that the developer has not taken any step to register the Society or Association of the owners of the flats. It further appear from the documents filed by the complainants which reveal that the 3rd meeting of flat owners of the said building was held on 11.11.2011, 4th meeting on 31.03.2013 and 5th meeting on 14.07.2013. It also appears that the developer was not a member of the said meeting . Complainants have stated that they had intimated the developer regarding resolution of the meeting by sending a copy of the Minutes of the said meetings to take step according to the resolution taken by the complainants. However, no step has been taken by the OP. The OP in support of his defence has stated that since he is not a member of the Society formed by the complainants he has no liability to register the same as per provision of the Apartment Ownership Act, . It appears from the document issued by the Deputy Assistant Director, Consumer Affairs Department, Government of West Bengal that as per discussion between the parties where the developers were present the Developers were requested to construct or re-reconstruct the construction in disputes as per building plan sanctioned by the KMC , to submit notice for plan as per Act, to apply and registration for organisation and to pay the property tax as applicable as per terms of the said concerned development agreement and deed of conveyance of individual flat owners and the owners were requested to pay the up to date property tax as per their proportionate amount to be calculated on and from the date of possession on their respective flats, to send a letter informing the developer about the formation of the Association of the Flat Owners and details of the concerned signatories . However, on perusal of record it appears that the complainant vide letter dated 03.07.2015 intimated the OP/developers regarding the name of office bearers of the Association. It further appears from the letter issued by KMC, filed by the complainants that no outstanding amount was due on 27.08.2015 in respect of premises no. 982, 982, Kalikapur Road which reveals that the complainants complied the request made by the Asstt. Director, Consumer Affairs Department. The OPs submit that as per direction of the CA and FBP they have paid an amount of Rs. 28, 000/- towards the property tax and moreover , there is no dispute regarding construction of the said building. The OPs further submits that they have already submitted notice for issuance of Completion Certificate. However, it appears from record that the said direction was made on 29.06.2015 and notice for obtaining Completion Certificate under Rule 26 of the KMC Building Rule has only been submitted on 31.03.2016 after lapse of about 9 months. It is observed from the documents issued by CA & FBP that no averment has been made by the complainants in course of conciliation before the Asstt. Director, CA & FBP regarding purchase and maintenance of lift , drainage system and ferrule connection, electricity connection etc. These issues were only raised before the Forum. It appears that the complainants were handed over documents regarding lift which is mentioned as ‘C Form of lift’ on the documents filed by the OP but it is not clear whether the said document relating to purchase and maintenance of lift. It further appears from the said documents, Xerox copy of drainage plan has already been handed over. It is , therefore, evident that though the Xerox copy of said paper has been handed over the original copy of internal drainage system paper has not been handed over to the complainants. Regarding ferule connection, it is also evident from the said documents that the OP handed over documents regarding the ferrule connection to the complainant No.5. It further appears from the MASD bill issued by the CESC in favour of Shambhu Banerjee who is OP no.3 herein which reveals that the developer had to deposit Rs. 53,729/- within 16.01.2011. However, no document has been filed to show that said payment has been made by the complainant. Since the complainants neither deposited required amount for payment of the said bill we are to arrive at the conclusion that the payment of the bill has been made by the developer. Since the Completion Certificate has not been handed over which is contractual obligation on the part of the developer and non-delivery of Completion Certificate amounts to deficiency in service and the complainants are entitled to get reliefs. Regarding the prayer No.(a) the complainant prays for direction upon the OP to perform his liability as per terms and conditions of the agreement for development. However, on perusal of record we find no copy of the development agreement where from it could have been evident that the terms and condition mentioned therein towards the developer’s obligation. Therefore, it is not possible to determine the developer’s liability without having the copy of said development agreement. However, we are of the opinion that the OPs are liable to handover the Completion Certificate and to cause registration of the Society so a direction may be given to the OPs to discharge the said contractual obligation. The complainants pray for direction upon the OPs to pay a sum of Rs. 2,00,000/- . In our view the developer entered into development agreement and handed over possession of owner’s allocation as well as the allocation to the intending purchaser within time and registered the deed of conveyance in favour of the purchaser and considering the circumstances we are not inclined to award compensation. Regarding litigation cost, we are of the opinion that inspite of receiving request from the CA & FBP the developers did not take any step to obtain the Completion Certificate and to register the Society or Association which led the complainant t to file the instant case. So they are entitled to get litigation cost.
Point Nos.1 & 2 are decided accordingly.
In the result, consumer complaint succeed in part.
Hence,
Ordered
That CC/73/2018 is allowed on contest with cost.
Opposite Parties are directed to handover the Completion Certificate within three months from the date of this order . Opposite Parties are further directed to cause registration of Society formed by the complainants and to handover document for purchasing and maintenance of lift and to pay Rs. 10,000/- towards the cost of litigation within the above mention period.
