Date of Filing : 24 March, 2022.

Date of Judgement : 06 July, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This complaint is filed by Mrs. Maya Shaw and Mrs. Punam Shaw nee Prasad, hereinafter called the Complainants, under Section 35 of the Consumer Protection Act, 2019, hereinafter called the said Act, against (1) M/s. B S Properties, (2) Sri Manoj Kumar Vagadia, (3) Sri Shubhang Vagadia, (4) Sri Gautam Chatterjee and (5) Sri Tarun Kumar Chatterjee, hereinafter called the Opposite Parties or O. Ps./Respondents, alleging deficiency in service occurred from the part of the O. Ps.

            The statement of the complaint petition and the annexed documents state, in short, that the Complainants entered into an Agreement for Sale on 07/02/2017 with the OPs-1, 2 & 3, where the OPs- 4 & 5 were the owners/confirming parties, intending to purchase a flat on the third floor of the building lying and situated at the premises no. 6, Surya Kumar Chatterjee Street, P. S. – Bhawanipore, Kolkata – 700 025, to be constructed by the OPs-1, 2 & 3 admeasuring more or less 1266 sq. ft. super built up area’ for a consideration of Rs.60,00,000/-.  The complainants paid Rs.42,35,000/- to the OPs-1, 2 & 3 from time to time and were ready and willing to pay the rest amount. In terms of this agreement the OPs- 1, 2 & 3 were obliged to deliver possession within 24 months from the date of this agreement. The complainants requested the OPs- 1, 2 & 3 repeatedly to deliver possession of the said flat upon receipt of the balance consideration.  But the OPs deliberately failed and neglected to hand over possession of the subject flat.  A supplementary agreement was executed between the complainants and the OPs on 24/09/2020, but the OPs-1, 2 & 3 failed to comply with this agreement also.  Complainants proposed the OPs to execute registered agreement for sale and after getting consent from the OPs they deposited the necessary Stamp Duty and other Charges for the execution and registration but the OP – 3 wilfully and deliberately remained absent during registration resulting the registration not done for want of signature of the OP – 3.  Complainant found that the OPs- 1, 2 & 3 had not finished construction of the building, only super structure has been completed and the OPs-1, 2 & 3 had abandoned the construction.  Hence they filed the instant complaint before this Commission praying to direct the OPs to: (1) deliver possession of the subject flat and execute and register the flat in their favour, (ii) to restrain the OPs from creating third party interest in respect of the said flat, (iii) to refund Rs.2,74,292/- paid by the complainants for the pending registration,  (iv) to pay Rs.10,00,000/- as compensation, (v) to pay Rs.50,000/- as litigation costs and any other relief(s).

                Complainants filed copies of (i) Agreement for Sale dated 07/02/2017, (ii) Supplementary Agreement for Sale dated 24/09/2020, (iii) some photographs, said to be, of the building, (iv) receipt issued by the authority for deposit of Stamp Duty & Registration Fees and (v) 17 receipts of payment issued by the OP-1 company as annexure to the complaint petition.

            Notices were served, after admission to the O. Ps. and the services were found satisfactory for the OPs- 4 & 5 but services were not satisfactory for OPs- 1, 2 & 3 for which notices were served again upon OPs- 1, 2 & 3.  This time service of notice found satisfactory. But none of the OPs appeared before this Commission nor any written version was filed by them for which ex parte proceeding was followed against all the OPs and ex parte hearing was fixed. Complainants prayed to treat their complaint petition as their evidence.  During ex parte argument none of the OPs appeared to contest the case and the complainants filed their Brief Notes of Argument. We have now come to the position to deliver the Final Order in this case.  We have to decide whether the O. Ps. are deficient in rendering proper service in accordance to the agreements for sale for which the complainants are entitled to get relief as prayed for.  Original copies of the agreements are taken into consideration for reaching the conclusive decision.

DECISION WITH REASONS

            Let us consider the two Agreements for Sale executed between the complainants and the O. Ps. first, taking into account the statement of the complaint petition.  Here, in the first agreement dated 07/02/2017, the OP-1, represented by its partners, the OPs- 2 & 3, has been described as the Vendor/Developer/Owner/First Part, the complainants as the Purchasers/Second Part and OPs- 4 & 5 as the Owners/Confirming Parties/Third Part. From this agreement it emerges that the actual owners of the premises were the OPs – 4 & 5 and their relative Sri Barun Kr, Chatterjee with equal share of which Sri Barun Kr. Chatterjee sold his share to M/s. B. S. Properties, thus the OPs- 1, 4 & 5 became the owners of the premises where the four storied building has to be constructed by the OP-1 company.  Complainants agreed to purchase one flat on the third floor admeasuring 1266 sq. ft. super built up area for a consideration of Rs.60,00,000/-.  Complainants paid Rs.12,00,000/- before execution of this agreement and thereafter they paid from time to time, according to the complaint, Rs.42,35,000/-.  It was agreed that the Developer would hand over possession of the subject flat within 24 months from the date of the agreement, but that has not been done.  Even in the year 2020, when the supplementary agreement for sale was executed on 24/09/2020 – a long three and a half years after the first agreement – the construction of the building was not completed. In this supplementary agreement it is stated that the Developer could not complete the building due to shortage of fund for which they requested the purchasers to supply fund out of balance consideration for further construction.  We see that in the month of October, 2021 complainants are still paying instalment though they found that only the super structure has been completed.  Complainants have not stated when they found that the Developer abandoned the project site and they have not disclosed when the photographs have been taken.  If that be the so, we can think that the motive of the Developer was to collect more money from the purchasers as far as possible than to finish construction.  When the complainants insisted the OPs to execute a registered Sale Agreement and after receiving consent for the OPs when they deposited necessary Fees/Stamp Duty, then the OP-3 refrained himself from signing in the agreement thereby causing a huge expense by the complainants without any fruitful result.  There is no contrary material to counter or rebut the claim of the complainants as the OPs did not contest the case. So, we have to proceed with this case relying on the statement and documents placed before us by the complainants.

            So, considering all these aspects we held that the O. Ps. have not complied with the assurances agreed to be done by them as promised through the agreements for sale which constitute deficiency in rendering service to the purchasers/complainants/consumers in this case as defined under the Act, hence they are liable to compensate and the purchasers/complainants are entitled to get relief.  All the OPs must execute and register the Deed of conveyance of the scheduled flat in favour of the complainants within 2 months after realisation of balance consideration. The OPs-1, 2, & 3 should hand over the flat in complete habitable condition in accordance with the agreements.  The OPs- 1, 2 & 3 are liable refund Rs.2,34,292/- which the complainants has incurred for Stamp Duty and Registration  Fees. The OPs- 1, 2 & 3 are also bound to pay Rs.8,000/- to the complainant as litigation cost.

Hence,

            it is

              ORDERED

That the Complaint Case No. CC/174/2022 is allowed ex parte against all the Opposite Parties.

All the Opposite Parties are directed to jointly execute the Deed of Conveyance in respect of the subject flat in accordance with the Agreement for Sale dated 07/02/2017 and Supplementary Agreement for Sale dated  20/09/2020 in favour of the complainants after realisation of the balance consideration within 60 days from the date of this order. The OPs-1, 2 & 3 are directed to refund Rs.2,34,292/- together with a compensation of Rs.50,000/- to the complainants.  The OPs-1, 2 & 3 are also directed to pay Rs.8,000/- to the complainants as litigation cost.  All these amounts should be given within the aforesaid time period failing which a simple interest @9% will be imposed on the entire sum till full and final realisation.

The cost of registration of the Deed will be borne by the complainants.