The complainants have filed a complaint u/s 35 of the Consumer Protection Act, 2019 since the Opposition party after receiving full payment from the complainants in respect of the flat and car parking space has given delayed possession of the property and neither registered the sale agreement in favour of the complainants nor paid interest amount for the money advanced for registration and stamp duty as per terms and conditions.

The brief facts of the case as averred by the complainants namely Sri Champak Kumar Sarkar s/o Late Chandra Nath Sarkar and Smt. Dipti Sarkar w/o Champak Kumar Sarkar is that the Opposite party M/s Riverbank Developers Pvt. Ltd. with registered office at Kolkata - 700020 is the developer company represented by it’s Authorised signatories / Directors and the complainants being interested with the proposal advanced by the OP company, took a decision for purchasing a flat and a car parking space in the housing project namely Hiland Greens, Batanagar, South Parganas, West Bengal for the flat no 6A2 at the 6^th floor at phase 1 tower 22 when the letter of allotment was issued on 01.03.2014 with a promise to handover the completed flat and car parking space within 42 months from the date of allotment. The OP’s official sent a letter dated 19.04.2017 stating that the said flat is ready and formal delivery would start soon. The opposite party also offered an interest @ 12% for the interim period between the advance payment and actual date of registration etc. in case the registration fee, corpus fund deposit and legal fee charges are paid in advance. Accordingly the complainants made a payment of Rs. 18,44,804/- being the total consideration amount for the flat and also  sum of Rs. 1,86,215 /- as registration fee alongwith other charges totaling to a full amount of Rs. 23,67,277 /- on various dates in installments from 18.02.2014 to 04.05.2017. Thereafter OP developer though handed over the said flat and car parking space on 19.09.2021 but has not paid any interest or compensation in terms of the conditions as per assurance letter. The complainants made several requests to the OPs to complete the execution of sale deed of the flat and car parking space. But in spite of that the OPs failed and neglected to comply with the same in violation of the terms & conditions of the letter of allotment and their various commitment letters.

It is further submitted by the complainants that the OP has adopted unfair trade practices and provided deficient services by not failing to make registration of the said flat and car parking space. When the petitioner enquired from the office of the OPs about the reason of such delay in construction of the project including that of the said flat of the petitioner in question, the OPs failed to provide any satisfactory reason for the same. The complainants in their complaint petition annexed the following documents in support their arguments :-

1. Copy of Allotment letter no 82152 dated 01.03.2014
2. Copy of schedule of cost and charges and payment schedule dated 01.03.2014
3. Copy of Tax invoice dated 01.03.2014
4. Copy of application by one of the complainant for rectification of spelling of name of allottee
5. Copy of option letter dated 19.04.2017 from OP to avail interest by allottees @ 12% per on statutory charges/legal fees/corpus fund
6. Copy of a list showing payment details by complainants to OP from time to time for total Rs. 23,67,277/- (2 pages)
7. Copy of reminder letter dated 16.04.2022 and email dated 01.07.2022, 05.07.2022, 02.08.2022, 16.08.2022, 13.10.2022 and 27.10.2022 from complainants to OP developer for delay of flat registration
8. Copy of replies from OP developer to Complainants promising registration of flat dated 16.07.2022, 23.08.2022, 29.10.2022 and 06.12.2022
9. Copy of various correspondences through CA & FBP dept, Govt of W.B
10. Copy of Receipts from OP developer as payment proof for the said flat.

The complainants have also prayed for a compensation for Rs. 6,00,000/- on account of harassment, mental agony and pain and a litigation cost for Rs 50,000/-.

The S/R in respect of the OP was completed on 27.04.2023 when neither they appeared nor filed written version within stipulated period. As such the case had been running ex-parte. The Ld. Advocate of the complainants advanced arguments during the course of the proceedings. Being ex-parte the evidence adduced by the complainants remained unchallenged. The complainants also filed Brief Notes of Arguments. The complaint case was heard, perused and considered based on merits read with records and documents.

Upon careful perusal it is found that the complainants are the consumers under the scope and meaning u/s 7(ii)  of the Consumer Protection Act 2019 as payments were made including the consideration money to the OP for purchasing the said flat and car parking space after issuance of allotment letter, which was never contested by the OP. After full payment, though the complainants were given possession of the suit property but the OP has failed execution of deed of conveyance for the said flat and car parking space on several occasions. In spite of accepting the various payments of the aforesaid amounts and full payment of consideration money and all other charges, the OP did not execute sale deed in favour of the complainants. In this respect, the contention of complainant that there was a 42 month delay as per initial offer letter is not established since the complainants never exhibited either the said offer letter or any other cogent proof in support of such claim. However the complainants as a result in delay of flat registration had no other way out but to approach this commission. Therefore the delay in giving possession of the suit property to the complainants by the OP developer is not established. But it is found that no registration of sale deed was ever effected by OP company. During the adjudication before this Ld. Forum, the OP never participated or provided any cogent reason or evidence or any convincing reply in support of any of their counter-claim whatsoever.

Upon consideration of the factual aspect of this complaint, in our opinion, the OP developer company has miserably failed and is liable for repeated failure to get the flat and car parking space registered in time and in respect of the suit property in question in favour of the complainants or refund the amount as received by the OP from the complainants. Hence the OP is liable to refund the interest @ 12% as per contractual term on Rs. 27,000/- and Rs. 1,61,800/- totaling to Rs. 1,88,800/- as per terms and conditions laid down admittedly in OP’s letter dated 19.04.2022 for the period from 04.05.2017 i.e. the actual date of relevant payment made by the complainants, till the actual date of refund. The OP is also liable for suitable damage for not completing the registration of suit property.

As the grievances of the complainants have not been redressed by the OPs, the complainants had to approach before this Ld. Commission by filing this complaint finding no other alternative and had to incur expenses towards various proceedings and litigation costs. Hence due to this reason, it is our considered opinion that the complainants are entitled to get litigation cost from the OPs as well.

                                                                                                  Ordered

Hence, going by the above said discussions and observations, it is ordered that the Consumer Complaint case being no. CC/48/2022 filed on 14.03.2023 at DCDRC, South 24 Parganas, West Bengal is hereby allowed on ex-parte basis with cost as follows :-

1. The OP developer company and their Directors are directed to execute the deed of conveyance in favour of the complainant for the of the flat and car parking space as per schedule mentioned in the complaint petition within 45 days from the date of this order.
2. The OP developer company and their Directors are directed jointly and/or severally to make payment of delay interest @ 12% per annum on Rs. 1,88,800/- from 04.05.2017 till the actual date of refund as per contractual term.
3. The OP developer company and their Directors are also liable jointly and/or severally to make payment of a compensation amount of Rs.1,00,000/- for mental agony and pain inflicted upon complainants.
4. The OP developer will also pay jointly and/or severally a sum of Rs. 10,000/- to the complainants as litigation costs.

All the above payments are to be made by the OP and/or their Directors within a period of 45 days to the complainants from the date of passing this Final order, in default, (i) the entire decreetal amount as per (b) and (c) above will accrue a simple interest @ 12% per annum till actual payment and (ii) will accrue a simple interest @ 12% per annum on the total consideration price of Rs. 23,67,277 /- till the date of registration of deed of conveyance of the suit property.

Let a plain copy be provided to both the parties free of cost as per CPR.

That the final order will be available in the following website www.confonet.nic.in.