In CIVIL APPEAL No. 3343 OF 2020-SC- Any deficiency detected post-purchase of flat opens up avenue for aggrieved consumer to seek relief before Consumer Forum: Supreme Court
Justices Dipankar Datta & S. Ravindra Bhat [09-02-2023]

Read Judgment: DEBASHIS SINHA & ORS v. M/S R.N.R. ENTERPRISE REP. BY ITS PROPRIETOR/CHAIRMAN, KOLKATA & ORS 

Mansimran Kaur

New Delhi, February 11, 2023: More often than not, the jurisdiction of the consumer fora under the Consumer Protection Act, 1986, is invoked postpurchase of flats. If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated, the Supreme Court has observed. 

While disposing of the present appeal  directed  under Section 23 of the Consumer Protection Act, 1986, calling  into  question the passed by the National Consumer Disputes Redressal Commission ,whereby the complaint lodged by the appellants-flat owners was dismissed, the Division bench of Justice Dipankar Datta and Justice S. Ravindra Bhat held that this was  an appropriate case where the complaint of the appellants ought to be remitted to the NCDRC for taking a relook into the complaint in accordance with law. 

The multiple appellants were the owners of flats in different blocks of a housing complex at  Kailash Ghosh Road, Kolkata.

Aggrieved by the failure of the respondents - the developers of the housing complex - to provide services as promised, the jurisdiction of the NCDRC was invoked by the appellants in 2008. They alleged that despite paying full consideration amount as per market rate and despite execution and registration of deeds of conveyance in their favour, the respondents had failed, inter alia, to provide the Completion Certificate.

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. It was their further complaint that the respondents had adopted unfair trade practices by promising a playground on land which actually belonged to a local club as well as attracting buyers by showing in the brochure/ advertisement a beautified lake, which never came into existence. 

Also, finding that there were constructional defects, a valuer from the list of approved valuers maintained by the Calcutta High Court had been engaged by the appellants. The report of such valuer revealed constructional defects of the nature delineated therein. 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

Further, they claimed that direction be issued for providing other facilities and a compensation of Rs.1.8 crore together with litigation cost.

As per the Bench, the NCDRC suspected that the purpose of the complaint was to pressurize the respondents into paying some compensation and/or not insisting upon extra payment for the extra facilities and amenities, the Court stated.  

After considering the submissions, what struck the Court first was the time taken by the NCDRC to decide the complaint after it reserved the same for passing orders. It took the NCDRC in excess of 10 months to dismiss the complaint, the Court noted. In view of the same, the Court opined that the  long delay in passing the order on the complaint did have its own effect on the ultimate decision of the NCDRC.

It was the duty of the NCDRC to ascertain, based on the materials on record, whether at all and to what extent facilities and amenities as promised were offered and/or whether there was any deficiency of service. We have not found any categorical findings in this regard, although there are unambiguous findings that the NCDRC disapproved the conduct of the respondents, the Court opined. 

“ More often than not, the jurisdiction of the consumer fora under the C.P. Act is invoked postpurchase. If complaints were to be spurned on the specious ground that the consumers knew what they were purchasing, the object and purpose of the enactment would be defeated. Any deficiency detected post-purchase opens up an avenue for the aggrieved consumer to seek relief before the consumer fora”. The reasoning of the NCDRC is, thus, indefensible”, the Court further remarked. 

Whether, upon taking possession, a flat owner forfeits his/her right to claim such services which had been promised but are not provided resulting in deficiency in services is a question that the NCDRC ought to have adverted to. 

Once the NCDRC arrived at a finding that the respondents were casual in their approach and had even resorted to unfair trade practice, it was its obligation to consider the appellants grievance objectively and upon application of mind and thereafter give its reasoned decision.

 If at all, the appellants had not forfeited any right by registration of the sale deeds and if indeed the respondents were remiss in providing any of the facilities/amenities as promised in the brochure/advertisement, it was the duty of the NCDRC to set things right.

It is evident on a conjoint reading of sections 403, 390, and 394 of the KMC Act that it is the obligation of the person intending to erect a building or to execute works to apply for completion certificate in terms of the rules framed there under. It is no part of the flat owners’ duty to apply for a completion certificate, the Court further stated. 

The Court thus observed that this was an appropriate case where the complaint of the appellants ought to be remitted to the NCDRC for taking a relook into the complaint in accordance with law and ordered accordingly.