FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.35 of the C.P. Act, 2019.

The facts of the case are that the OP Builder launched a residential building at KMC Premises No. Z-3/246/1/A, Jaliya Para Road, Kolkata-700044. Complainant booked a flat measuring about 150 sq. ft. on the ground floor in the said building for a total Sale Consideration of Rs.  3,00,000/-. A Booking Agreement was executed between the parties on  27.08.2019. As per Booking Agreement , the construction of the booked flat is to be completed within  03 months from the date of execution of the agreement. It is the say of the complainant that he paid Rs. 2,00,000/- to the OP Developer. Despite that the OP did not handover physical possession of the booked flat though he is ready and willing to pay the balance consideration amount. Legal Notice dated 27.07.2021 was unattended. Alleging unfair trade practice and deficiency in service on the part of the OP Developer, the complainant has filed the present complaint.

Despite service of notice neither any one appeared on behalf of the OP Developer nor any WV is filed on his behalf. Accordingly, vide order dated 31.12.2021 the case OP Developer is proceeded ex parte and his right to file WV is forfeited.

We have heard the Ld. Advocate for the complainant and perused the material available on record as well as E/chief and BNA filed by the complainant.

The Ld. Advocate appearing for the complainant strenuously submitted that the complainant paid Rs.  2,00,000/-as demanded by the OP out of total sale consideration of Rs. 3,00,000/-. It is assured to the complainant that the possession of the booked flat would be delivered within 03 months from the date of execution of the Booking Agreement. However, the Developer has failed to deliver the possession of the flat within the stipulated period of time which tantamount to deficiency in service on his part as such the complainant is entitled for reasonable compensation for the delay in delivery of possession, mental agony and harassment. He further submitted that the developer be directed to handover physical possession of the booked flat on receiving balance sale consideration. Alternatively, if the OP Developer is not in a position to deliver the possession of the booked flat, he may be directed to refund the deposited amount along with interest  at the rate of 18  percent per annum from the date of respective deposit till the date of realization. Besides a sum of Rs. 2,00,000/- towards cost of litigation.

A perusal of the complaint reveals that the complainant booked a flat measuring about  150 sq. ft. on the ground floor of KMC Premises No. Z-3/246//1/A, Jaliya Para Road, PS-Nadial, Kolkata-700044 with the OP Developer for a total sale consideration of Rs. 3,00,000/- out of which he has paid Rs. 2,00,000/-. As per the complaint, Booking Agreement is executed between the parties on 27.08.2019. The conditions embodied in the Booking Agreement, that the OP Developer is under obligation to provide possession of the booked flat within 03 months from the date of execution of the agreement. However, the Developer has failed to keep his promise of timely delivery of possession of the booked flat.

Despite notice being served on the complaint as well as on the Application under Section  35 of Consumer Protection Act, 2019 the reasons best know to him, the OP neither put appearance nor filed WV in support of his defense. Hence, the facts averred in the complaint remain un-rebutted. Under these circumstances, the question regarding booking of flat, part payment of sale consideration and as to why to the OP did not handover physical of the booked flat on receiving balance consideration amount also remain unanswered.

In the case of the Emmar MGF  Land Ltd.  & Ors.  Vs. Amit Puri, II  (2015) CPJ 568 (NC) the Hon’ble National Commission has held that after promised date of delivery, it is the discretion of the complainant whether to accept the offer of possession, if any, or to seek refund of the amounts paid by him with some reasonable compensation and it is well within his right to seek for refund of the principal amount with interest and compensation.

With this discussion, the consumer complaint filed by the complainant is allowed ex parte against the OP with the following directions:-

1. Complainant is directed to pay balance sale consideration of Rs. 1,00,000/- (Rupees on lac) only to the OP Developer and thereafter OP is directed to handover physical possession of the booked flat to the complainant within 08 weeks from the date of passing of the order.

2. OP is further directed to execute and register Deed of Conveyance of the booked flat fully described in the schedule of the complaint petition in favour of the complainant within 08 weeks from the date of passing of the order.

3. Alternatively the OP/Developer to refund the deposited amount of Rs. 2,00,000/- (Rupees two lacs) only to the complainant with compensation in the form of simple interest  at the rate of 8  percent p.a. from the respective dates of deposit till the  payment is made together with cost of Rs. 15,000/- (Rupees fifteen thousand)   only. This amount is directed to be paid within 08 weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest  at the rate of 10  percent p.a. for the same period. It is also made clear that for non compliance, the provisions enshrined under section 72 of the CP Act, 2019 would also be attracted.

Copy of the judgment be provided to the parties as mandated by the CP Act. The judgment be uploaded forthwith on the website of this commission for perusal of the parties.