FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
Brief facts of the case are that the OPs 1, 2 and One Arbi Begum are the owners of a piece and parcel of land measuring about 02 Cottahs situated within Ward No. 16 of KMC being Premises No. 68/1/1B, Hare Krishna, Konar Road, Kolkata-700014. OP-3 is a Developer who agreed to construct a G+4 storied building on the said land. The Complainants and the Constituted Attorney of the vendors executed an Agreement for Sale dated 14.02.2018. By the said agreement, the vendors agreed to sell 500 sq. ft. of area consisting of 2 BHK, one Drawing cum Dinning Room, one Kitchen, a covered varanda and Bath and Privy at a sale price of Rs. 15,00,000/-. In terms of the Agreement for Sale, the OPs are liable to handover peaceful possession of the subject flat to the complainants within 31.12.2020. Complainants have already paid Rs. 13,00,000/- to the OP-3 being the Constituted Attorney of the owners. It is further agreed that the complainants will pay the balance sale price of Rs. 2,00,000/- at the time of execution of Deed of Conveyance and delivery of possession of the subject flat. The complainants are ready and willing to pay balance sale price but the OPs did not execute Deed of Conveyance and deliver peaceful possession of the subject flat in habitable condition on receiving balance sale price. The OPs deprived the complainants for which the complainants have suffered mental pain and agony. Having no other alternative, the complainants issued legal notice dated 29.11.2021 to the OPs but such notice was unattended. Alleging deficiency in service and unfair trade practice the complainants filed the present case against the OPs.
Despite service of notices of the complaint, the OPs did not turn up to contest the case by filing WV within the statutory period as provided under the CP Act, 2019. Thus, the case runs ex parte against the OPs.
Complainant No. 2, Md. Shoaib has filed evidence by way of affidavit wherein he has reiterated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainants and also perused the material available on record as well as written argument.
In course of hearing the Ld. Advocate for the complainants submitted that there is a gross deficiency in service and unfair trade practice on the part of the OPs. Despite receiving 90 % of sale price, they did not execute and register Deed of Conveyance as well as deliver peaceful possession of the subject flat to the complainants . It is prayed that the consumer complaint should be allowed in terms of the prayer.
We have given our thoughtful consideration to the various pleas raised by the Ld. Advocate of the complainants and find that the Constituted Attorney of the vendors executed an Agreement for Sale dated 14.02.2018 with the complainants. By virtue of the said agreement, the OPs agreed to sell a flat measuring about 500 sq. ft. little more or less consisting of 2 bed rooms, one Drawing Cum Dining Room, one Kitchen, a Covered Varanda and one Bath and privy on the second floor of the proposed of G+4 storied building at sale price of Rs. 15,00,000/-. The complainants have paid Rs. 13,00,000/- to the OP-3 out of total sale price of Rs.15,00,000/- . Despite several request and legal notice dated 29.11.2021, the OPs failed and neglected to handover physical possession of the subject flat as well as did not execute and register Deed of Conveyance in favour of the complainants in spite of payment of Rs. 13,00,000/-. The complainants are ready and willing to pay the balance consideration amount to the OPs on the date of execution and registration of the Deed of Conveyance and delivery of possession of the subject flat. The OPs did not avoid the terms and conditions of the Agreement for Sale .
It is the duty of the OPs to execute and register Deed of Conveyance and delivery of possession of the subject flat to the complainants after receiving balance sale price of Rs. 2,00,000/-. OPs did not file WV denying the allegation of the complainants as made out in the complaint petition. Complainants cannot be made to wait indefinitely for execution and registration of the Deed of Conveyance and receiving possession of the subject flat. Thus, the Commission has authority to pass appropriate order in this complaint case.
It is settle law that the complainants being the purchasers of the subject flat for residential purpose is ”Consumers” under the provision of Consumer Protection Act, 2019. We also find both deficiency in service within the meaning of section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OPs.
In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OPs with the following directions:-
- OPs are directed to execute and register Deed of Conveyance and delivery of physical possession of the subject flat fully mentioned in schedule of the complaint petition measuring about 500 sq. ft. on the 2nd floor of the G+4 storied building situated at KMC Premises No. 68/1/1B, Hare Krishna, Konar Road, Kolkata-700014 inhabitable condition to the complainants on receiving balance sale price of Rs. 2,00,000/- (Rupees two lacs) only.
- OPs are also directed to issue possession letter of the subject flat and completion certificate of the building to the complainants.
- OPs are further jointly and severally directed to pay Rs. 5,000/- (Rupees five thousand) only as litigation cost to the complainants.
The OPs are directed to comply the above order within a period of 90 days from today and the complainants shall pay the balance sale price of Rs. 2,00,000/- on the date of execution and registeration of the Deed of Conveyance and delivery of possesion of the subject flat. Complainants will bear cost of stamp duty and registration charges for execution and registration of Deed of Conveyance .
Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.
