Shri Ashoke Kumar Pal, Hon’ble President:- Stripped of unnecessary details the case of the complainant in short is that the complainant with intent to purchase a flat more fully described in the schedule of the petition of complaint as well as agreement for sale executed by and between the parties in 1425 B.S. (Annexure – A). The consideration amount was settled at Rs. 18,96,000/- and the O.Ps. promised to deliver the flat within 31.08.2019. The complainant paid Rs. 6,96,000/- on different dates as earnest money and the O.Ps. acknowledged the receipt of the same by issuing money receipts (Annexure – B). Despite payment of the considerable amount the O.Ps. declined to hand over the possession of the said flat inspite of request by the complainant on various occasions. The request of the complainant to refund the earnest money was also turned down by the O.Ps. which prompted the complainant to file the instant complaint case on the relief as sought for in the petition of complaint. The O.P. No. 2 did not come forward to contest the case by filing W/V and as such, by Order No. 5 dated 03.01.2023 the instant complaint case was heard ex-parte against the O.P. No. 2. The O.P. No. 1 contested the case by filing W/V contending interalia that the claims of the complainant are all false. The specific case of the O.P. is that the complainant gave Rs. 3,90,000/- out of the total consideration amount of Rs. 16,96,000/- to the O.Ps. On request of the complainant the O.P. gave possession of the suit flat to the complainant on rental basis due to sudden demises of his brother till the registration of the deed of conveyance. On good faith the O.P. gave possession of the suit flat to the complainant where the complainant started to reside along with his brother’s wife (widow). The O.P. further on request of the complainant gave him cash amount of Rs. 5,00,000/-. Subsequently, due to his financial stringency the complainant shifted in another flat of the O.P. e.g. “Dilip Apartment” and after a few months without any intimation the complainant left the said flat also of the O.P. The O.P. also denied the other material averments of the petition of complaint para wise and prays for dismissal of the instant complaint case with cost. Points for consideration :- - Is the complainant a consumer?
- Are the O.Ps. guilty of deficiency in service and unfair trade practice?
- Is the complainant entitled to get relief as prayed for?
Decisions with reasons :- Point No.1 :- On perusal of the case record along with copies of documents, it appears that the complainant was willing to purchase a flat as described in the agreement for sale (Annexure – A) as well as the schedule of the petition of complaint. The complainant paid Rs. 6,96,000/- out of the total consideration amount of Rs. 18,96,000/- on different dates and the O.Ps. acknowledged the receipt of the same. Therefore, the complainant is a consumer as defined U/S 2(7) of the Consumer Protection Act, 2019. As such, Point No.1 is decided in favour of the complainant and against the O.Ps. Points No.2 & 3 :- Both the Points No.2 & 3 are taken up together for consideration for the sake of convenience and as they are interlinked. The complainant booked the scheduled flat more fully described in the schedule of the agreement for sale (Annexure – A) and made payment of Rs. 6,96,000/- out of the total consideration amount of Rs. 16,96,000/-. It was agreed upon that the delivery of possession of the said flat will be made within 31.08.2019. But the O.Ps. failed to comply with the terms and conditions of the agreement for sale and could not deliver possession of the scheduled flat to the complainant within the stipulated time despite repeated requests by the complainant. The O.Ps. also turned down the request of the complainant to refund the earnest money. The O.P cooked up a different story in the written version which is not at all corroborated by any documentary evidence, as such we are unable to accept the same. The O.P in his W/V set up a new story of giving delivery of possession of the suit flat to the complainant on rental basis where the complainant resided for a few months along with brother’s wife (widow). But we find no cogent documents in support of the same. The O.Ps. also tried to set up another story of giving cash amount of Rs. 5,00,000/- to the complainant. But in absence of my cogent and documentary evidence, we are unable to accept the same. The fact remains that the O.Ps. failed to give delivery of possession of the scheduled flat to the complainant. It appears that the complainant failed to get service from the O.Ps. On the other hand, the complainant was harassed by the O.Ps. by various ways. Therefore, it is clear from the averments of the complainant that the O.Ps. are guilty of deficiency in service and unfair trade practice. As such, the complainant is entitled to get the reliefs as prayed for. Thus the Points 2 & 3 are also decided in favour of the complainant and against the O.Ps. In the result, the complaint case succeeds. Fees paid is correct. Hence, it is ORDERED That the instant complaint case be and the same is hereby allowed on contest against the O.P. No. 1 and ex-parte against the O.P. No. 2 with cost of Rs. 20,000/- (Rupees Twenty Thousand) only. The O.Ps. are jointly and severally liable and are directed to refund Rs. 6,96,000/- (Rupees Six Lakhs Ninety Six Thousand) only along with simple interest @9% per annum w.e.f. the respective dates of payments of installments made by the complainant till the date of final realization thereof within 30 days from the date of passing this order. The O.Ps. are jointly and severally liable and are directed to pay compensation of Rs. 2,00,000/- (Rupees Two Lakhs) only for mental pain, agony and harassment caused to the complainant, within 30 days from the date of passing this order. The O.Ps. are jointly and severally liable and are directed to pay the litigation cost of Rs. 20,000/- (Rupees Twenty Thousand) only within 30 days from the date of passing this order. Let a copy of this order be supplied free of cost to the parties concerned. That the final order will be available in the following website:www.confonet.nic.in. | 
