State Consumer Disputes Redressal Commission
M/S. Ganapati Construction vs Sri Goutam Chatterjee on 30 May, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 First Appeal No. A/1044/2017 ( Date of Filing : 22 Sep 2017 ) (Arisen out of Order Dated 15/09/2017 in Case No. EA/72/2012 of District South 24 Parganas) 1. M/s. Ganapati Construction 77A/22, Raja Subodh Chandra Mullick Road, Kolkata -700 092, P.S. - Jadavpur, Dist. South 24 Pgs. 2. Sri Pinaki Sen, partner, M/s. Ganapati Construction S/o Lt. S.K. Sen, D/26, Bapuji Nagar, P.S. Jadavpur, Kolkata -700 092. 3. Sri Goutam Dutta, partner, M/s. Ganapati Construction S/o Lt. N.B. Dutta, 2/9, Chittaranjan Colony, P.S. - Jadavpur, Kolkata -700 092. ...........Appellant(s) Versus 1. Sri Goutam Chatterjee S/o Lt. Sunit Kumar Chatterjee, 77A/25, Raja Subodh Chandra Mullick Road, Kolkata -700 092, P.S. - Jadavpur, Dist. South 24 Pgs. 2. Smt. Jhumur Dasgupta alias Suchita Dasgupta 77A/2, Raja S.C. Mallick Road, Kolkata - 700 092. 3. Smt. Rinku Dutta alias Mousumi Dutta 2/9, Chittaranjan Colony, Kolkata - 700 092. 4. Sri Susovan Chowdhury 77A/25, 1st Floor, Raja S.C. Mallick Road, Kolkata - 700 092. ...........Respondent(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Appellant: Mr. Prasanta Banerjee, Advocate For the Respondent: Debnath Saha, Advocate Dated : 30 May 2018 Final Order / Judgement
Challenge in this appeal under Section 27A of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is to the Order No. 51 dated 15.09.2017 passed by the District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur (in short, 'Ld. District Forum') in Execution Application No. 72 of 2012 stems from Consumer Complaint No. 296 of 2010.
I have scrutinised the materials on record and considered the submission advanced by the Ld. Advocate appearing for the appellants and respondent no. 1. Respondent Nos. 2 to 4/landowners did not contest.
Having heard the Ld. Advocates appearing for the contesting parties and on going through the materials on record, it would reveal that the respondent no. 1 herein being complainant lodged a Consumer Complaint under Section 12 of the Act being CC/296/ 2010 before the Ld. District Forum against the appellants/construction firm and its two partners as well as the respondent nos. 2 to 4 (landowners) on the allegation of deficiency in services on the part of them for non-delivery of possession, non-execution of Sale Deed in respect of one flat and car parking space. The said complaint was allowed on contest against the appellants/developers and its two partners and on consent against the landowners on 23.08.2012 with certain directions which are mentioned hereinbelow:
"That the CC/296/2010 be and the same is decreed in part on contest against O.P. Nos. 1, 1(a) & 1(b) with cost and on consent against the rest without cost.
All the O.Ps. are directed to execute and register Deed of Conveyance in favour of the complainant in respect of the flat and car parking space in question within one month from this date.
The O.P. Nos. 1, 1(a) & 1(b) are also directed to complete the unfinished works as per stipulation and specification of the sanctioned plan, to deliver possession of common meter room, guard room and pump room within one month from this date.
The said O.P. Nos. 1 series are also directed to supply the copy of Completion Plan and Occupancy Certificate within one month from this date.
The O.P. Nos. 1 series are hereby personally restrained from transferring/alienating the common area to any stranger purchaser/persons.
The O.P. Nos. 1 series are also directed to pay compensation of Rs. 1,00,000/- and the cost of Rs. 10,000/- totalling to Rs. 1,10,000/- within one month from this date, failing which, the said amount shall carry on interest @ 10% per annum from the date of default till realisation".
Since the said order has not been complied with by the appellants/developer, the respondent no. 1 /decree holder put the decree/order in execution being EA/72/2012. Meanwhile, an appeal has been preferred and the same was dismissed.
Mr. Prasanta Banerjee, Ld. Advocate appearing for the appellants has submitted that the appellants have complied with the order in its letter and spirit but despite best efforts could not obtain Completion Certificate and in this regard, unless the landowners extend their support it is quite difficult to obtain the Completion Certificate and to hand over an authenticate copy of the same to the respondents no. 1 Per contra, Mr. Debnath Saha, Ld. Advocate appearing for the respondent no. 1 has contended that the execution case was initiated in the year 2012 and is still pending for consideration and when it is the bounden duty on the part of the appellants being developer to hand over the Completion Certificate the question of inter-se dispute between the developer/landowner cannot stand in the way to defeat the justice.
I have considered the rival contentions of the parties. Admittedly, the order passed by the Ld. District Forum on 23.08.2012 in connection with the CC/296/2010 has attained finality. For enforcement of the said order, the Ld. District Forum has passed the order and sitting in Execution Court, the Ld. District Forum has no option but to execute the order in its letter and spirit.
The only point remains for consideration as to whether the appellants are under obligation to obtain Completion Certificate from the local authority or not. In this regard, law is well settled that after accepting the consideration amount as per agreement, the developer is under obligation to - (a) delivery possession; (b) execute and register the Deed of Conveyance and (c) obtain Completion Certificate/Occupancy Certificate from the local authority. When despite several years and so many opportunities, the appellants/judgment debtors could not obtain Completion Certificate, the Ld. District Forum by the impugned order has rightly passed an order of W.A. for execution of the order.
Therefore, having heard the Ld. Advocate appearing for the respective parties and on perusal of the materials on record, I do not find any shortcoming or loophole in passing the order impugned and as such the appeal is liable to be dismissed. The Execution Application is pending for long five years and the appellants have failed to obtain Completion Certificate and in order to shirk off the liability has filed this appeal which appears to be harassing and malafide in nature and as such the appeal deserves dismissal with cost of Rs. 20,000/-.
For reasons aforesaid, the appeal is dismissed on contest with cost of Rs. 20,000/- out of which Rs. 10,000/- to be paid to the respondent no. 1/decree holder and the balance amount of Rs. 10,000/- to be paid in the account of Consumer Legal Aid Account of this Commission within 15 days from the date of order.
To 28.06.2018 for appearance of the parties before the Ld. District Forum and the appellants/judgment debtor nos. 1, 1(a) and 1(b) must show receipts as to payment of costs otherwise the Ld. District Forum will take appropriate steps so that its order is being obeyed, executed and carried out in its letter and spirit.
The Registrar of the Commission is directed to send a copy of the order to the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Baruipur with reference to EA/72 of 2012 for information.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER