State Consumer Disputes Redressal Commission
Sri Prasanta Biswal vs Smt. Salila Guha on 23 July, 2018
Cause Title/Judgement-Entry STATE CONSUMER DISPUTES REDRESSAL COMMISSION WEST BENGAL 11A, Mirza Ghalib Street, Kolkata - 700087 Complaint Case No. CC/493/2015 ( Date of Filing : 28 Dec 2015 ) 1. Sri Prasanta Biswal S/o, Gunadhar Biswal, 9/5, Putuatola Lane, P.S - Amherst Street, Kol - 700 009. ...........Complainant(s) Versus 1. Smt. Salila Guha W/o, Sri Keshab Chandra Guha, 36A, Chandra Mondal Lane, P.S - Tollygunge, Kol - 700 026. 2. M/s. Sristi, Rep. by its Proprietor Sri Amit Sarkar S/o, Sri Barindra Kumar Sarkar, 105/1, Sarat Garden Road, Dhakuria, P.S - Kasba, Kol - 700 031. 3. Reliance Home Finance Ltd. Air Conditioned Market, 6th Floor, 1, Shakespeare Sarani, Kol - 700 071. 4. Reliance Home Finance Ltd. 570, Rectifier House, Naigaun, Cross Road, Mumbai - 400 031. ............Opp.Party(s) BEFORE: HON'BLE MR. SAMARESH PRASAD CHOWDHURY PRESIDING MEMBER For the Complainant: Ms. Jayshree Saha , Advocate For the Opp. Party: Ms. Mousumi Chakraborty., Advocate Dated : 23 Jul 2018 Final Order / Judgement The instant complaint under Section 17 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') is at the instance of an intending purchaser against the landowner (Opposite Party No.1) and the developer/builder (Opposite Party No.2) and the financer, who granted financial assistance to the complainant for purchasing the flats (Opposite Party Nos. 3 & 4) on the allegation of deficiency in services on the part of OP No.2/developer for non-delivery of possession of two residential flats as mentioned in 2nd and 3rd Schedule of the petition of complaint.
In a nutshell, complainant's case is that he had entered into an Agreement for Sale with OP Nos. 1 & 2 to purchase two flats measuring about 1100 sq. ft. each super built up area being Flat Nos.D2 on the 2nd floor and D3 on the 3rd floor at Premises No.722, Madurdaha, P.S.- Tiljala, Kolkata -700107 within the local limits of Ward No.108 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.33,00,000/- each totalling Rs.66,00,000/-. On payment of entire consideration amount, the OP Nos. 1 & 2 have executed the Deed of Conveyances in favour of him on 16.04.2015. However, despite repeated requests and reminders including notice dated 30.11.2015 the OP No.1 did not complete the entire works and further did not handover the possession of the subject flats. Hence, the complaint with prayer for following reliefs, viz. - (a) a direction upon the OP Nos. 1 & 2 to deliver peaceful and vacant possession of two flats as mentioned above alternatively to refund Rs.66,00,000/- + Rs.5,00,000/- as cost of stamp duty and registration along with interest thereon; (b) compensation; (c) litigation cost etc. Either the landowner (OP No.1) or the developer (OP No.2) have appeared to contest and as such the complaint was heard against them ex-parte.
The OP Nos. 3 & 4 by filing a written version have stated that they have given financial assistance to the complainant for the purpose of purchasing two flats being Flat Nos. D-2 and D-3 at Premises No.722, Madurdaha, P.S.- Tiljala, Kolkata -700107. Both the flats were purchased by two registered Deeds. The complainant has not raised any claim of deficiency in services or compensation against them for which the complaint should be dismissed against them.
Both the contesting parties have tendered evidence through affidavit. They have also filed reply against the questionnaire set forth by their adversaries.
Undisputedly, OP No.1 was the owner of a peace of land measuring about 3 cottahs 6 chittaks and 34 sq. ft. lying and situated at Premises No.722, Madurdaha, P.S.- Tiljala, Kolkata -700107, Dist- South 24 Parganas within the local limits of Ward No.108 of Kolkata Municipal Corporation (KMC). In order to raise a G+3 storied building, OP No.1 had entered into a Development Agreement with the OP No.2 (developer) on 17.08.2011. The OP No.1 has also executed a General Power of Attorney in favour of OP No.1. The OP No.2 had obtained sanctioned building plan from the KMC on 21.04.2012 for raising construction.
The evidence on record goes to show that on 16.04.2015 the complainant has purchased two flats measuring about 1100 sq. ft. each super built up area being Flat Nos.D2 on the 2nd floor and D3 on the 3rd floor at Premises No.722, Madurdaha, P.S.- Tiljala, Kolkata -700107 within the local limits of Ward No.108 of Kolkata Municipal Corporation (KMC) at a total consideration of Rs.33,00,000/- each aggregating Rs.66,00,000/-. On payment of entire consideration amount, the OP Nos. 1 & 2 have executed the Deed of Conveyances in favour of him.
However, it is categorically alleged by the complainant that the developer did not complete the construction and further did not handover the subject flats and in this regard, all his requests and persuasions including notice dated 30.11.2015 went in vain. It is well settled that after accepting the consideration amount as per agreement, the developer is under obligation to - (a) deliver possession, (b) execute and register the Sale Deed and (c) obtain completion certificate/occupancy certificate from the authority concerned. The non-delivery of possession amounts to deficiency in services on the part of the developer within the meaning of Section 2(1)(g) of the Act.
On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(1)(d) of the Act hired the services of OP no.2 on consideration and OP No.2 has failed to fulfil his part of obligation in handing over possession after completion of construction and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In my view, direction upon the OP No.2 to deliver possession within 60 days after completion of construction will meet the ends of justice. Despite payment of entire consideration amount, when the complainant has been deprived from enjoying the subject flats from 16.04.2015, it caused tremendous mental agony and harassment for which the complainant is entitled to compensation and considering the loss suffered by him, I assess the compensation in the form of simple interest @ 8% p.a. from the date of Deed of Conveyance i.e. from 16.04.2015 till the date of delivery of possession. Under compelling circumstances, the complainant has to file the complaint and therefore, he is entitled to litigation cost which I quantify at Rs.10,000/-.
Since I do not find any deficiencies on the part of OP Nos.1, 3 & 4, the complaint is liable to be dismissed against them.
With the above discussion, I dispose of the complaint with the following directions -
The opposite party no.2 is directed to deliver Letter of Possession after obtaining Completion Certificate from KMC in favour of complainant within 90 days from date, The opposite party no.2 is directed to pay compensation of in the form of simple interest @ 8% p.a. over the amount of Rs.66,00,000/- from 16.04.2015 till the date of handing over possession of the flats as mentioned in Second and Third Schedule of the petition of complaint , The opposite party no.2 is directed to pay Rs.10,000/- as cost of litigation to the complainant.
[HON'BLE MR. SAMARESH PRASAD CHOWDHURY] PRESIDING MEMBER