Act’, for short) calls in question the order dated 21 August, 2020 passed by the National Consumer Disputes Redressal Commission, New Delhi, (hereafter ‘NCDRC’, for short).
Also Read: https://newslaw.in/supreme-court/legal-analysis-of-claim-for-loss-of-profit-in-delayed-contract/
The multiple appellants are owners of flats in different blocks of a housing complex at 1, Kailash Ghosh Road, Kolkata – 700008 (hereafter ‘housing complex’, for short).
According to the appellants, the respondents also failed to provide them common amenities and facilities viz., playground, community hall-cum-office room, 33-feet wide concrete road, and supply of water from the KMC.
Based on the complaint that was lodged before the NCDRC, the appellants sought direction to the respondents to provide the completion certificate of the project and to set right the constructional defects as pointed out by the valuer. It was also contended in the written statement that most of the appellants had taken possession of the flats in 2006 without raising any objection at the material time; hence, lodging of a complaint after 2 (two) years of possession being delivered is motivated. In this regard, the NCDRC returned a finding that reading of section 403 of the Kolkata Municipal Corporation Act, 1980 (hereafter ‘KMC Act’, for short) makes it clear that it was incumbent on both the respondents as well as the appellants to not occupy the premises in the absence of the completion certificate. As our discussion hereafter would unfold, we are of the clear view that the long delay in passing the order on the complaint did have its own effect on the ultimate decision of the NCDRC.
Be that as it may, what the NCDRC omitted to bear in mind was that the appellants were allured to purchase flats of the nature and kind together with facilities and amenities as attractively published in the brochure/advertisement; hence, whether the project was huge or otherwise was absolutely beside the point. The conduct of the respondents, the NCDRC recorded in the impugned order, was far too casual and on the face of it, the respondents are guilty of “unfair trade practice” within the meaning of section 2(1)(r) of the C.P. Whether the appellants had been provided what the respondents had promised did survive for consideration, which does not get reflected in the impugned order.
Once a flat is booked and the prospective flat owner enters into an agreement for loan, instalments fall due to be paid to clear the debt irrespective of whether the flat is ready for being delivered possession.
However, there is no such clear-cut description of facilities/amenities which the respondents asserted would be provided on payment of extra money by the appellants. Sub-section (1) thereof, which finds no reference therein, requires every person giving notice under section 393 or section 394 or every owner of a building or a work to which the notice relates to send or cause to be delivered or sent to the Municipal Commissioner a notice in writing of completion of erection of building or execution of work within one month of such completion/erection, accompanied by a certificate in the form specified in the rules made in this behalf as well as to give to the Municipal Commissioner all necessary facilities for inspection of such building or work.
Similarly, section 394 also mandates every person who intends to execute any of the works specified in clause (b) to clause (m) of sub-section (1) of section 390 to apply for sanction by giving notice in writing of his intention to the Municipal Commissioner in such form and containing such information as may be prescribed.
The mere fact that the flat owners were being assessed by the KMC affords no reason to the respondents for breaching section 403(1) read with rule 26 of the 1990 Rules. Since it is found that the appellants while praying for monetary compensation of Rs.1,80,00,000.00 have failed to give detailed particulars and/or provide the basis therefor, and undoubtedly, they have also been on the wrong side of law by taking possession of their respective flats without the completion certificate, whatever might be the compulsion, we are not inclined to direct the NCDRC to decide on the compensation component.
The appeal stands disposed of on terms as aforesaid, with no orders as to costs.
Case Title: DEBASHIS SINHA Vs. M/S R.N.R ENTERPRISE (2023 INSC 114)
Case Number: C.A. No.-003343 / 2020
