In the Court of the Consumer Disputes Redressal Forum, Unit -I, Kolkata, 8B, Nelie Sengupta Sarani, 4th Floor, Kolkata-700087. CDF/Unit-I/Case No.351/2012 1) Smt. Jyotsna Maji, 32/3, Mahendra Roy Lane, Kolkata-46, P.S. Topsia. ---------- Complainant ---Versus--- 1) Sri Amal Kumar Das, 2) Sri Akhil Chandra Das, Both residing at 28, Mahendra Roy Lane, P.S. Topsia, Kolkata-46. ---------- Opposite Parties Present : Sri Sankar Nath Das, President. Dr. Subir Kumar Chaudhuri, Member. Smt. Sharmi Basu, Member Order No. 7 Dated 25-04-2013. The instant complaint case is filed by the complainant with allegations of deficiency in service and unfair trade practice against the o.ps. which is within the purview of the COPRA, 1986. The case of the complainant in short is that she booked a flat from the o.ps. for a consideration of Rs.6 lakhs and at the initial stage the o.p. no.1 issued a letter of premise dt.2.3.08 on a non-judicial stamp paper of Rs.50/- and there o.p. no.1 stated that he is word-bound to hand over possession of the flat in question to the complainant and also he is word-bound to execute and register the deed of conveyance in favour of the complainant. The complainant through installments paid the o.p. no.1 Rs.2,01,000/- as part payment towards the consideration of that flat. Here, it is needed to be mentioned that on the basis of power of attorney conferred to o.p. no.1 by o.p.no.2 for receiving all payments from complainant in respect of consideration of suit flat. But the o.ps., being unsuccessful to hand over the flat to the complainant within reasonable time, gave an ‘undertaking’, in a non-judicial stamp paper of Rs.10/- dt.28.7.10, that in case of failure to provide the flat within the time schedule the complainant would be entitled to construct a tile-shed room in the said premises in order to avoid payment of rent by the complainant for the intervening period. But the o.ps. did not allow her to construct a tile-shed room, even after failure of o.ps. to hand over the flat in question to her within reasonable time. As per complainant construction work of the building in question has not yet been completed. The complainant has run from pillar to post to get possession of the flat on payment of balance consideration to the o.ps. but o.ps. have evaded with one context or the other. Moreover, the complainant has alleged against the o.ps. that excess amount was demanded by them from the complainant for suit flat and as per the ld. advocate of the complainant thus claim of the o.p. tantamounts to unfair trade practice u/s 21(r) of the COPRA, 1986. Therefore, the complainant has no alternative but to file the instant case before this Forum to redress the dispute and she has prayed for relief as mentioned in the complaint petition. Even after valid service of notices upon both o.ps. either of the o.ps. have appeared before this Forum and the instant case has been heard ex parte against both the o.ps. Considering all facts and circumstances of the instant case following points are in limelight for discussion. Points for Consideration: 1) Whether the complainant is ‘consumer’ as per definition u/s 2(1)(d)(i) of the COPRA, 1986. 2) Whether the o.ps. have committed deficiency in service under the purview of the section 2(1)(g) and 2(1)(r ) of the COPRA, 1986. 3) Whether the complainant is eligible to get relief as prayed for. Decision with reasons: All the above mentioned point s are discussed simultaneously for proper adjudication of the case. Before going to the merit of the case this is needed to be mentioned that we have no alternative but to hear the instant case ex parte against both o.ps. the contention of the complainant and all documents filed by the complainant are unchallenged piece of testimony. It is also pertinent to mention that as per decision of Hon’ble National Commission, if landowner and/or developer has failed to give possession and or to execute and register the Deed of Conveyance of the suit property in favour of the consumer/complainant ,the cause of action shall be continued till delivery of possession and execution and registration of deed of conveyance. Therefore, the instant case is not time barred in any manner. After going through minutely the complaint, evidence and BNA and all the documents brought before this Forum by the complainant and hearing in details from the ld. advocate of the complainant it is crystal clear that complainant booked a flat for residential purpose from the o.ps., where both the o.ps. are landowners as well as developers and this fact reveals from annex-A of complaint petition. The complainant being a woman with weak financial background with intention to have own residential accommodation for herself and for family members booked the suit flat and paid in total Rs.2,01,000/- to o.p. no.1 towards the consideration of the flat Rs.6 lakhs and she also took loan for paying the balance amount to the o.ps. But o.ps. could not complete the construction of that apartment where the suit flat would be situated, even on 28.7.10 and undertook that o.ps. would give access to the complainant to construct a tile shed room within the premises in question. But till the date of hearing of the instant case the o.ps. did not give the complainant possession of the suit flat nor executed and registered the deed of conveyance. Even the o.ps. did not give any scope to the complainant for constructing any temporary accommodation at the suit premises as they promised in black and white on 28.07.10. As per agreement for sale dt.2.7.09 the o.ps. are duty bound to hand over the possession of the suit flat to the complainant within one and half year from the date of aforesaid agreement dt.2.7.09. But the o.ps. have failed to hand over the flat till the date of hearing of the instant case. In the light of the above discussion we are of the opinion that complainant is ‘consumer’ and o.ps are ‘service provider’ as per provision of the COPRA, 1986, because she paid Rs.2,01,000/- towards part payment of consideration of the suit flat to the o.ps. To decide whether the o.ps. are deficient in service or not the following discussion is advanced. It is beyond doubt that o.ps. being landowners and developers could not hand over the possession of flat nor execute and register the deed of conveyance in favour of the complainant within stipulated period and even did not allow the complainant to construct shelter at suit premises even after written commitment by o.ps. on 28.7.10. Therefore, we strongly of the opinion that o.ps. being landowner and developers committed deficiency in rendering service towards the complainant / consumer. Ld. advocate for the complainant has raised a point that the o.ps. demanded excess amount from the complainant in relation to the suit flat and he has submitted that this act of o.ps. would be considered as ‘unfair trade practice’. But complainant could not file even scrap of paper to establish that o.ps. have demanded excess amount from the complainant towards the consideration of flat in question and we are not position to consider the point of demanding excess amount by o.ps. and as well as the allegation of unfair trade practice against the o.ps. has not been sustained. This is pertinent to mention that for inaction and deficiency in service the o.ps. complainant has to incur rent for her residential accommodation and if Deed of Conveyance will be executed and registered in favour of the complainant by the o.p.s then she has no alternative but to spent huge excess amount for stamp duty at the time of execution and registration of deed of conveyance and has to suffer tremendous mental agony for this delay to fulfill her dream of own accommodation, even after arranging finance towards the consideration of the suit flat and paying part payment of Rs.2,01,000/- and also being ready to pay Rs.4,00000/- to the o.p.s as balance amount towards the balance consideration of the flat in question we hold that complainant is eligible to be compensated by both the o.ps. Hence, Ordered That the case is allowed ex parte with cost against both the o.ps. O.ps. are jointly and/or severally directed to hand over possession of the flat in question and to execute and register the deed of conveyance in favour of the complainant subject to receipt of Rs.4,00000/- from the complaint as balance amount towards the consideration of th flat in question and o.p.s are also directed to pay to the complainant compensation of Rs.30,000/- (Rupees thirty thousand thousand) only for harassment and mental agony and litigation cost of Rs.3000/- (Rupees three thousand) only within 60 days from the date of communication of this order, failing which, o.ps. shall pay jointly and/or severally Rs.200/- (Rupees two hundred) only per day, out of which Rs.100/- (Rupees one hundred) only per day shall be payable to the complainant and Rs.100/- (Rupees one hundred) only per day is payable to the State Consumer Welfare Fund from the date of completion of stipulated period till the date of full and final execution of the aforesaid all orders. Complainant is at liberty to file execution case before this Forum in case of non-execution of the aforesaid order in its entirety within the stipulated period under the provision of COPRA, 1986. Supply certified copy of this order to the parties free of cost. | 
