JUSTICE V.K. JAIN, PRESIDING MEMBER (ORAL)

          The complainant and her mother late Bharati Ghosh entered into an agreement with the appellant for purchase of a residential flat for a consideration of Rs.17,50,000/-.  A sum of Rs.15,50,000/- had been paid by the time the agreement was executed between the parties and out of the balance amount of Rs.2,00,000/-, Rs.1,80,000/- was alleged to have been paid in cash leaving a balance of Rs.20,000/- to be paid to the appellant.  The possession of the flat was to be delivered within six months of the execution of the agreement.  The said possession having not been offered the complainant approached the concerned State Commission by way of a consumer complainant, seeking possession of the flat with completion certificate, execution of the conveyance deed and compensation etc.

2.      The complaint was resisted by the appellant, managing partner of the builder Nirmaan (India), its other partner as well as the land owners, who were the other parties to the consumer complaint.  The appellant and his partner inter-alia stated in the written version that they were ready to execute the deed of conveyance.  They also admitted the transaction with the complainant and her mother, but claimed that the brother of the complainant being other legal representative of her deceased mother was a necessary party to the consumer payment, payment of Rs.15,50,000/- was admitted by them but the alleged payment of Rs.1,80,000/- was disputed.   It was also alleged that they had already handed over possession to other flat buyers and had also allocated flats to the land owners who were opposite parties No. 3 – 5 in the complaint.

3.      The land owners who were opposite parties No. 3 to 5 in the consumer complaint contested the complaint on the ground that the developer had asked the complainant several times to take possession of the flat on payment of the agreed sale consideration.  The State Commission vide its order dated 02.7.2018 directed as under:

      “i. The opposite party Nos. 1 and 2 are jointly and severally directed to deliver possession within 90 days from date in favour of the complainant in respect of the property as mentioned in Second Schedule of Agreement for sale dated 26.9.2014 after obtaining completion certificate form the appropriate authority.

      ii. The Opposite Party Nos. 1 to 5 are jointly and severally directed to execute Deed of Conveyance in respect of the subject property within thirty days from the date of delivery of possession.

      iii. The Opposite Party Nos. 1 & 2 are directed to pay compensation in the form of simple interest @ 10% p.a. from the date of committed date of possession i.e. from 26.3.2015 till the actual date of delivery of possession.

      iv. The opposite party Nos. 1 and 2 are directed to pay Rs.10,000/- as cost of litigation to the complainant.

      v. The balance amount payable by the complainant, if any, shall be adjusted by OP Nos. 1 & 2 out of the compensation payable to them in terms of this order.  The balance compensation, if any, shall be paid at the time of offering possession of the flat to the complainant, in terms of this order.”

4.      Being aggrieved from the aforesaid order, the appellant is before this Commission by way of this appeal.

5.      It is contended by the learned counsel for the appellant that the complaint was bad for non-joinder of the brother of the complainant, he being the other class- I legal representative of the deceased mother of the complainant, who was a co-purchaser along with the complainant.  On a perusal of the impugned order, I find that the deceased mother of the complainant was survived only by two legal representatives, the complainant who was her daughter and Sri Chiranjib Ghosh, brother of the complainant.  Sri Chiranjib Ghosh had filed an affidavit stating therein that he had relinquished his rights, title and interest in respect of flat in question in favour of the complainant.  In view of the said affidavit, it was not necessary for the complainant to implead her brother Sri Chiranjib Ghosh as a party to the consumer complaint, she being the sole beneficiary of the flat which the builder was required to deliver within six months of the execution of the agreement.

6.      The agreement was executed on 26.9.2014, and Clause 3 of the said agreement required delivery of possession to the purchaser within six months of the said agreement, except in case of unavoidable circumstances, such as act of God, natural calamity etc.

7.      No act of God or natural calamity in construction of the flat was even pleaded by the appellant.  Therefore, the possession ought to have been delivered by 26.3.2015.  The consumer complaint however, came to be filed in September, 2015.  The State Commission noticed that the appellant has not obtained the requisite completion certificate / occupancy certificate and in fact developer had not even obtained Drainage Sanction Plan (either internal or external) from the concerned Authority.  During the course of hearing, I specifically asked the learned counsel for the appellant as to whether they have obtained the requisite occupancy certificate / completion certificate.  The learned counsel conceded that the requisite occupancy certificate / completion certificate has not been obtained so far.  Without obtaining the requisite occupancy certificate / completion certificate, the appellant cannot deliver legal possession of the flat to the complainant.  Therefore, the direction for giving possession after obtaining the completion certificate is fully justified.  The direction for execution of the deed of conveyance within thirty days from the date of delivery of possession to the appellant cannot be faulted since the title in the property cannot be transferred to the complainant without execution of the said deed of conveyance.  The builder having unreasonably delayed the offer for possession of the flat, which can in any case, cannot be made without obtaining the requisite occupancy certificate / completion certificate, the direction for payment of compensation also cannot be faulted with.   As regards the balance amount payable by the complainant, the State Commission has already directed that the same can be adjusted by the builders out of the compensation payable to her in terms of its order.   

8.      For the reasons stated hereinabove, I find no ground to interfere with the impugned order.  The appeal being devoid of any merit is hereby dismissed.