West Bengal

Darjeeling

CC/11/2023

Tsechang Dorje Tamang - Complainant(s)

Versus

Ashish Kumar Dubey - Opp.Party(s)

30 May 2024

ORDER

F I N A L       O R D E R

    DATED : 30.05.2024 

        An application has been filed U/S 35 of the Consumer Protection Act, 2019 against the Opposite Parties for deficiency of service for not providing a flat to the Complainant as per the terms and conditions of the agreement executed on 29.04.2016 and therefore, the Complainant has made a prayer for delivery of the possession of the flat in question in favour of him after receiving the balance consideration amount of Rs. 74,258 /- ( Rupees Seventy Four Thousand Two Hundred Fifty Eight only) and further prays for replacing the wooden door at the main entrance of the building and also prays for Compensation to the tune of Rs. 1,00,000/- ( Rupees One Lakh only) for mental pain and agony for deficiency in service etc. and also prays for execution and registration of the flat in question in favour of the Complainant by the O.Ps and/ or any other relief or reliefs as he is entitled to. Further the Complainant has made an alternative prayer for refund of the advance amount of Rs. 5,35,742/- ( Rupees Five Lakh Thirty Five Thousand  Seven Hundred and Forty Two only) along with 18 % interest if the flat could not be delivered to him.

       The gist fact of the case is that on 18.10.2015, the Complainant had booked one flat from the Opposite Parties as mentioned in the schedule of the complaint, being Flat No. 302, at 3^rd Floor, Block ‘C’ Nano, measuring about 400 sq ft, ‘Grade Deluxe’ including super built area situated at Vastu Vihar, which has been erected upon a vacant land about 152 decimals recorded in L.R Khatian No. 1373, L.R Plot No. 476, 480, 740, 741, 759, 772 & 773 under Mouza :-Panchkulguri, P.S. Matigara, Pargana: – Patharghata, ADSR – Siliguri-II at Bagdogra under  

       Patharghata Gram Panchayat, District:- Darjeeling and the total value of the Flat was fixed at Rs. 6,10,000/- ( Rupees Six Lakh Ten Thousand only) with additional other charges and lift charges.

        It is stated by the Complainant that the Complainant has made payment of Rs. 1,55,250/- ( Rupees One Lakh Fifty Five Thousand Two Hundred and Fifty only) on 18.10.2015 at the time of booking of the said Flat to the O.Ps and subsequently, the Complainant has paid a total of Rs. 5,35,742/- ( Rupees Five Lakh Thirty Five Thousand Seven Hundred and Forty Two only) in different installments which has been mentioned in detail in Para No. 7 of the complaint and the Complainant has submitted the copy of the receipts along with the Complaint.

      The Complainant by highlighting the Clause- 2 of the Agreement stated that the Agreement made on 29.04.2016 was very specific and under terms and conditions of the Agreement, it was agreed by the parties that the Opposite Parties could not escalate the cost of the construction with the increase in the market rate and the price of the Flat would be fixed. Further, the Complainant stated that it is also mentioned in the said agreement that the Opposite Parties shall complete the construction of the Flat within 24( Twenty Four) Months from the date of sanctioned Map approval or sanctioned building plan.

      It is further stated by the Complainant that all of a sudden, the Complainant was shocked to receive a demand letter dated 06.08.2023 from the Opposite Party No. 2 and by that letter, the Opposite Party No. 2 further demanded Rs. 1,75,923/ and further on 09.09.2023 demanded to pay Rs. 94,998/ unnecessarily violating the terms and conditions of the Agreement.

       It is further stated by the Complainant that several years have passed but the Opposite Parties failed to hand over the possession of the Flat to the Complainant.

 

The Complainant visited the construction site several times and met the officials of the Opposite Parties and every time the Opposite Parties stated that the Flat is ready and complete to take possession but when the Complainant visited the construction site, he has seen that the Flat was not complete in all respect and not ready to move in.

      It is further stated by the Complainant that whenever he went to talk to the Opposite Party No. 2 regarding delay in giving possession of the Flat, the Opposite Party No:2 would sent him to the Opposite Party No. 1 and whenever the Complainant met the Opposite Party No. 1, he would sent him to the Opposite Party No. 2 and for that moving  “to and fro” the Complainant has been harassed.  The Opposite Parties could not assure him as to when they could be in a position to hand over the Flat and they are always giving some lame excuses.

      Further, the Complainant stated that he has not violated the terms and conditions of the Agreement and there are no latches on his part but the Opposite Parties have violated the terms and conditions of the Agreement and  did not honour the Agreement as stated above and demanding more money as aforesaid.

      Before filing of this case, the Complainant has approached to the C.A & F.B.P, Darjeeling and there from a NOTICE was served to the Opposite Parties, but it was in vain due to absence of the Opposite Parties. Therefore, being aggrieved the Complainant is compelled to file this case before this Commission for proper redressal.

RELIEF SOUGHT FOR : -

 The Complainant has prayed for the following reliefs:-

1. To direct the Opposite Party to hand over the vacant physical possession of the Flat in question in favour of the Complainant after receiving the balance amount of Rs. 74, 258/- ( Rupees Seventy Four Thousand Two Hundred and Fifty Eight) only.

2. To direct the Opposite Party to replace the main entrance door with good standard of wood.

3. Compensation of Rs. 1,00,000/- ( Rupees One Lakh only) for mental harassment and agony and deficiency in service.

4. Direction may be given to the Opposite Party to execute registration of the Flat in question in favour of the Complainant forthwith after delivery of possession and if the Opposite Party fails to execute to register the Flat in question in favour of the Complainant within the stipulated time as given by the Commission, the Flat may be registered through the Ld. Commission by appointing any Commissioner and in such a case the balance amount may be permitted to deposit  before the Ld. Commission.

5. And as an alternative prayer by the Complainant, direction may be given to the Opposite Parties to refund the advance amount of Rs. 5,35,742/- ( Rupees Five Lakh Thrity Five Thousand Seven Hundred and Forty Two only) to the Complainant along with 18% interest, if the Opposite Parties fails to deliver the Flat or construction is incomplete to move in for an indefinite period of time.

6. Any other relief or reliefs as the Complainant is entitled to.

DOCUMENTS FILED BY THE COMPLAINANT:-

1.  Copy of Booking Form dated 18.10.2015.

2.  Copy of Agreement dated 29.04.2016 ( 12 Pages).

3.  Copy of Money Receipts ( 8 Pages)

4.  Copy of Demand Letter dated 06.08.2023 and 09.09.2023
1. Copy of NOTICE dated 01.09.2023 by the Office of Consumer Affairs and F.B.P, Darjeeling R.O.

 

       It is seen from the case record that NOTICES were sent to the Opposite Parties but despite receiving NOTICES, the Opposite Parties No. 1, 2 and 3 did not turn up before this Commission and no Written Version has been filed by them. Therefore, the case has been proceeded ex-parte against all the Opposite Parties.

      During hearing, the Complainant has filed ex-parte evidence with an Affidavit- and after that Ex-parte Argument was heard and the Complainant also filed Brief Notes of Argument.

      From the complaint petition, evidence of the Complainant and other materials on record, the following points have been framed:-

1. Is the Complainant a Consumer under the Opposite Parties?

2. Are the Opposite Parties deficient in providing service?

3. Is the Complainant entitled to get relief as prayed for?

 

                                     DECISION WITH REASONS: -

      All the points are taken up together for the sake of brevity, avoidance of repetition of facts and convenience for discussion.

       It is evident from the evidence of the Complainant and other materials on record that on 18.10.2015 the Complainant had booked one flat from the Opposite Parties as mentioned in the schedule of the complaint, being Flat No. 302, at 3^rd Floor, Block ‘C’ Nano, measuring about 400 sq ft, ‘Grade Deluxe’ including super built area situated at Vastu Vihar, which has been erected upon a vacant land about 152 decimals recorded in L.R Khatian No. 1373, L.R Plot No. 476, 480, 740,  

      741, 759, 772 & 773 under Mouza :-Panchkulguri, P.S. Matigara, Pargana: – Patharghata, ADSR – Siliguri-II at Bagdogra under Patharghata Gram Panchayat, District:- Darjeeling and the total value of the Flat was fixed at Rs. 6,10,000/- ( Rupees Six Lakh Ten Thousand only) with additional other charges and lift charges.

        It is seen from the evidence of the Complainant that the Complainant has made payment of Rs. 1,55,250/- ( Rupees One Lakh Fifty Five Thousand Two Hundred and Fifty only) on 18.10.2015 at the time of booking of the said Flat to the O.Ps and subsequently, the Complainant has paid a total of Rs. 5,35,742/- ( Rupees Five Lakh Thirty Five Thousand Seven Hundred and Forty Two only) in different installments which has been proved from the documents and receipts filed by the Complainant.

      Therefore, in our view the Complainant is a consumer under the O.Ps as per the provision of Sec-2(7) of the C.P.Act,2019.

       Now in order to determine whether the O.Ps are deficient or not we have to scan the evidence of the Complainant once again.

      It is seen from the copy of agreement that the O,.Ps must complete the construction of the Flat within 24( Twenty Four) Months from the date of sanctioned Map approval or sanctioned building plan.

       Further, it is seen from the copy of agreement that the total consideration amount of the flat was Rs. 6,10,000/ ( Rupees Six Lakh Ten Thousand only)

      Seen the copy of letters as annexed by the Complainant.

      It is seen by us that the O.Ps have demanded money in excess of the agreed value. But the proper reason for such escalation of price has not been shown.

It is further seen that several years have passed but the Opposite Parties failed to hand over the possession of the Flat to the Complainant which have violated the terms and conditions of the agreement.

       It is further evident from the evidence of the Complainant that the Complainant visited the construction site several times and met the officials of the Opposite Parties and every time the Opposite Parties stated that the Flat is ready and complete to take possession but when the Complainant visited the construction site, he has seen that the Flat was not complete in all respect and not ready to move in.

      It is further seen from the evidence of the Complainant that he has been harassed by the O.Ps unnecessarily. Before filing of this case, the Complainant has approached to the C.A & F.B.P, Darjeeling for mediation but the problem was not solved due to absence of the O.Ps. Therefore, being aggrieved the Complainant is compelled to file this case before this Commission for proper redressal.

       From the above discussion, it is crystal clear that the Complainant has paid a substantial part of the total consideration amount to the O.Ps , but the O.Ps failed to deliver the vacant possession of the flat in question within the stipulated period of time. Demanding more from the Complainant is also unjust and improper, which is violating the terms and conditions of the agreement. Here we find clear deficiency on the part of the O.Ps.

      In a judgment reported in 2016(2)C.P.R 371, titled as  M/S Lakshmi Builders vs Kesavarapu Somesvvara Rao(NCDRC), the Hon’ble National Commission  has been pleased to observe that “the unscrupulous act of the appellants/ builders should be dealt with heavy hands ,who after grabbing hard earned money of the purchasers go on enjoying their money but do not hand over the possession, on one pretext or the other. The appellants/builders want the respondentNo:1/purchaser to run from one forum to other, so that the appellants

       can go enjoying respondent No:1’s money without any hindrance. No leniency should be shown to such type of litigants who in order to cover up their own fault and negligence, go on filing meritless appeal. Equity demands that such un scrupulous litigants whose only aim and object is to deprive the opposite party of the fruits of the decree, must be dealt with heavy hands.  Unscrupulous builders like appellants, who after taking substantial amount from the purchasers do not perform their part of obligation, should not be spared. A strong message is required to be sent to such type of builders, that National Commission is not helpless in such type of matters. The appeal is dismissed with punitive damages of Rs.1, 00,000/.”

      In a judgment reported in 2015(3) C.P.R 700 titled as Ansal Properties & Infrastructure Ltd. Vs A.L. Baweja(NCDRC), the Hon’ble National Commission, after dismissing the revision petition filed by the petitioner/O.P, has been pleased to observe that” registration be done without payment of any cost within 45 days from today, otherwise penalty will be imposed upon the O.P in the sum of Rs.500/ per day, subject to the condition that this order will not be in respect of any other liability or rights.”   

       In a judgment reported in 2016(1) C.P.R 712, titled as Ms. Shweta Kapoor Vs M/S Unitech Limited(NCDRC), the Hon’ble National Commission has been pleased to direct the O.Ps that “they should deliver the possession of the flat booked by the complainants within one year from the date of order and if failed, the O.Ps should pay compensation  along with other directions made therein.”

      In a judgment reported in 2016(1) C.P.R 256, titled as  C.M. Nayar Vs M/S Unitech Ltd.(NCDRC) the Hon’ble National Commission, after allowing the appeal, has been pleased to hold the view that” the sale deed has been executed but the complainants were aggrieved because there was delay in handing over premises in dispute and non  issuance of  occupancy certificate and hold the view       that justice delayed is not only justice denied, it is also justice circumvented, justice mocked and system of justice undermined.”

       “ The builders can’t prefer to adopt Fabian policy and in such a case directions has been issued to the OPs to pay 15% interest for delayed period and to give occupancy certificate.”

      In a ruling reported in  2015(3) C.P.R 562(N.C), titled as  B.Subbarao Vs M/S Sun Pharmaceuticals Ltd. & Ors, the Hon’ble National Commission after allowing the revision petition held that” the Consumer Fora is entitled to award not only value of goods or services but also to compensate consumer for injustice suffered by him due to deficiency in service in sale of goods or rendering of service.”

       In another ruling reported in 2015(3) C.P.R 629, titled as Emaar MGF Land Ltd. & Anr. Vs Dyal Singh,the Hon’ble National Commission has been pleased to hold that” non delivery of physical possession of apartment within the stipulated period of time, as mentioned in the agreement, not only amounts to deficiency of service on the part of the builders but also guilty of indulging into unfair trade practice, if there is no explanation cited as to why the builders failed to deliver possession within the time frame.”

       In another ruling reported in 2016(2) C.P.R 805, titled as  Navneet Chabra Vs United Limited, the Hon’ble National Commission has been pleased to hold that  “justice delayed is not only justice denied. It is also justice circumvented, justice mocked and system of justice undermined.”

       It is further held in Rajeev Kumar Singh Vs Jai Prakash Associates Ltd. & Others, reported in 2020(3) CPR-55( N.C) that “allottee of a flat is entitled to refund of amount deposited if sufficient time has elapsed as mentioned in the agreement and possession is not handed over”

       Further, in Jainendra Kumar Vs  Abhicon Infrastructures Pvt. Ltd reported in 2023(4) C.P.R-98( Bom) it was held by the Bombay SCDRC that  “Complainant is a Consumer of the Opponent service provider, who failed to handover possession of the booked flat and even on demand from the complainant,       opponent failed to refund the hard amount of the complainant, in the form of consideration, which amounts to deficiency in service and unfair trade practice. Complainant was deprived of his dream of home and was compelled to run from pillar to post for the years together. Complainant was compelled to face hardship mentally and physically and constrained to face financial difficulties. Thus, opponent failed to appear and resist the Complaint, no evidence is produced on record on behalf of the opponent regarding completion of the project and handing over possession of the booked flat to the complainant. The Commission was of the opinion that the complainant is entitled for the relief claimed of refund of amount together with interest. Complainant has sought for refund along with interest @18% p.a which is exorbitant. Complaint is partly allowed. Opponent was directed to refund amount of Rs. 50,00,000/ to the Complainant along with interest @ 9% p.a from the date of respective payment till its realization.”

      Considering the evidence of the Complainant, submissions made by the Complainant as well as the materials on record and especially considering the ratio of the above judgments, we are of the view that all the O.Ps are deficient in rendering service towards the complainant and therefore, the case of the complainant is succeeded as he has able to prove his case and therefore, the complainant is entitled to get relief as under. The unchallenged testimony of the Complainant proves his case.

      Regarding the quantum of compensation, we quantify the compensation at Rs.30, 000/, considering the nature of the case and keeping in mind the loss and sufferings of the complainant. No specific prayer has been made by the Complainant for cost of the proceeding. Therefore, we are refraining ourselves to award any amount on the point of litigation cost.

      All the points, therefore, have been discussed elaborately and go in favour of the complainant. 

Hence,

       It is ordered that the C.C No: 11 of 2023 is allowed ex-parte against the O.P No: 1, 2 & 3, but in part.

 1.  All the O.Ps are, jointly and severally, directed to hand over the vacant physical possession of the flat in question to the complainant in habitable condition within 2 months( Two Months) from the date of this order.

2.   All the O.Ps are, jointly and severally, directed to execute and register the deed of conveyance in respect of the flat of the complainant, which is specifically mentioned in schedule of the complaint petition as well as in the agreement made between the parties, dated 29.04.2016, in favour of the complainant within 2 months(Two Months) from the date of this order, after receiving the balance consideration amount of Rs. 74,258/( Rupees Seventy Four thousand Two Hundred Fifty Eight Only) from the Complainant.

3.   The Complainant is also directed to pay the balance consideration amount of  Rs. 74,258/( Rupees Seventy Four thousand Two Hundred Fifty Eight Only) to the O.Ps prior to the execution and registration of the flat in question within the above mentioned period of 2 months(Two Months).

       If the  OPs fails to execute and register the deed of conveyance in respect of the flat in question in favour of the Complainant within the above noted stipulated period of two months, the Complainant is at liberty to make an application for execution and registration of his flat through this Commission by appointment of a Commissioner by filing an Execution Application as per law and in such a case the Complainant has to deposit the balance consideration amount Rs. 74,258/( Rupees Seventy Four thousand Two Hundred Fifty Eight Only)  before this Commission.          And if the flat of the Complainant is registered through this Commission and the Complainant deposits the balance consideration amount before this Commission, liberty is given to the O.Ps to make an application for withdrawal of the same from this Commission.

       Be it noted that the cost of registration shall be borne by the Complainant only.

4.  The O.Ps are, jointly and severally, directed  to complete and finish the pending works of the flat and replace the main wooden door by any good quality of timber within the aforesaid period of two months.

5.   All the O.Ps are, jointly and severally, directed to pay compensation to the tune of Rs.30,000/( Rupees Thirty Thousand Only) to the complainant within 2 months(Two Months) from the date of this order. 

6.    In the alternative, in case the O.Ps fails to complete the pending works of the flat in question of the Complainant or fails to deliver it to the Complainant within the aforesaid two months or fails to execute and register the deed of conveyance in respect of the said flat within the aforesaid period of two months after taking balance consideration amount as stated above, the O.Ps are jointly and severally directed to refund the total advance amount received by them to the tune of  Rs.5,35,742/- ( Rupees Five Lakh Thirty Five Thousand Seven Hundred and Forty Two only) along with interest @ 12% p.a to the Complainant forthwith after the expiry of the two months. The interest amount shall be calculated from the date of respective date of payments till the date of realization.

       In default of any portion of this order, the complainant is at liberty to file an Execution Application under the provisions of the C.P Act,2019  for execution of this order and may also file an application for execution and registration of the flat of the complainant through the intervention of the Commission by appointing  any Commissioner.  

      Let free copies be given to the parties concerned as per the C.P. Rules & Regulations,2020.