FINAL ORDER/JUDGEMENT

SHRI SAHANA AHMED BASU, MEMBER. 

 This is an application u/s-12 of the Consumer Protection, Act, 1986.

The case of the complainant is that she booked a residential flat measuring about 1200 sq. ft. more or less and one car parking space measuring about 135 sq. ft. on the 4^th floor of newly constructed building located at at K.M.C. premises No.9/3/1-A, Hati Bagan Road (North)  P.S. Beniapukur, Kolkata-700014. The O.Ps. are the Developers. Complainant executed registered Agreement for Sale dated 24/07/2017 with the O.Ps. incorporating the respective rights and obligations of the parties  in respect of the said construction. The price of the flat  and car parking space is agreed at Rs.40,00,000/- and Rs.5,00,000/- respectively and complainant paid the entire consideration amount. O.Ps. executed and  registered a deed of Conveyance dated 27/04/2018 in favour of the complainant her parents. In addition the consideration amount, O.Ps. received Rs.5,40,000/- towards GST from the complainant and her parents without granting any GST invoice. The physical possession of the residential flat has been delivered to the complainant and her parents but the O.Ps. did not handover physical possession of the car parking space though the car parking is sold to the complainant and her parents. Despite several requests O.Ps. did not take any steps to handover physical possession of the car parking space. On the contrary, the O.Ps. illegally covering the subject car parking space with an intention to sale it to third party for their illegal gains. O.Ps. did not construct the boundary wall, flooring of the roof, bathroom of the security guard & driver and painting the outer side  of the building violation the terms & conditions of the Agreement for Sale. Being aggrieved of the of the failure of the O.Ps. to perform their part of contract, the complainant has filed the consumer complaint seeking reliefs fully mentioned in the prayer portion of the complaint.

It is also noted that Mr. Sandip Basu, one of the partner of O.P.-1 died during pendency of the case and his name has been expunged (vide order dated 08/01/2020)  as per prayer complainant. Complainant also filed amended copy of consumer complaint.

Despite service of notice of the complaint, O.Ps. have failed to file W.V. within the limitation provided u/s-13(2) of the C. P. Act, 1986. No request for condonation of delay or extension of time to file W.V. is made. Therefore, the right of O.Ps. to file W.V. is closed. O.Ps. even did not choose to file any application to set aside the ex-parte order dated 01/10/2019.

Complainant Sharmistha Bhattacharya filed her evidence by way of affidavit supporting the allegations made in the complaint.

Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of the photocopy of Development Agreement  dated 29/09/2014 executed between the O.Ps. and Shri Biswanath Dutta & 5 Others, it is clear that vide said Development Agreement, owners of premises No.9/3/1-A, Hati Bagan Road (North), Kolkata-700014 entrusted O.P.-1, a Partnership Firm to construct a G + 4 storied building thereon with a right to sale 50% of the floor area portion in the proposed building. General Power of Attorney was also executed by the owners in favour of the O.P.-1 to facilitate construction work. It is evident from a bare perusal of the registered Agreement of Sale dated 24/04/2017 that O.Ps. agreed to sale one self contained flat measuring about 1200 sq. ft.  super built area on the 4^th floor (back side) and one car parking space measuring 135 sq. ft. on the ground floor of the proposed building at a total consideration of Rs.45,00,000/-. Complainant and her parents have paid the entire consideration amount to the O.P.-1 and the parents of O.P.-1 also executed and registered Deed of Conveyance dated 27/04/2018 in favour of the complainant and her parents. Complainant and her parents also paid Rs.5,40,000/- to the O.P.-1 as GST. Complainant has categorically alleged in the complaint petition as well as evidence that O.Ps. have delivered physical possession of the subject flat on 27/04/2018 but did not handover physical possession of the demarcated car parking space despite several requests and a letter dated 27/06/2019. O.Ps. are illegally constructing a residential flat covering the subject car parking space. O.Ps. being the service provider are guilty of deficiency in service.

Complainant has clearly stated that the O.Ps. did not complete boundary wall, painting of exterior of the building & flooring of the roof. She further alleged that the O.Ps. did not construct bathroom for security guard & driver which the O.Ps. are supposed to do as per Agreement for Sale and Deed of Conveyance dated 27/04/2018. There is no cogent evidence of any un authorizsed construction of car parking space, non-construction of boundary wall, painting of exterior of the building, flooring of the roof and bathroom in the grouns floor for security guard and driver. Complainant did not file any appropriate application for appointment of Advocate Commissioner and / or Engineer Commissioner to establish such allegations of un authorized construction of subject car parking space and unfinished works of the building as per Deed of Conveyance dated 27/04/2018.

The fact remains that despite execution and registration of the subject parking space O.Ps. did not handover physical possession and in such a situation the complainant who is in need of her own car parking space cannot wait for an indefinite period. The evidence lead by the complainant remained unchallenged. Therefore, there is hardly any reason to believe the contention of the complainant.

On evaluation of materials on record, it appears that the complainant being ‘consumer’ as defined in Section 2(1)(d) of the hired services of O.Ps. on consideration in a housing construction and the O.Ps. have failed to fulfill their part of obligations and found deficeinct in rendering services within the meaning of section 2(1)(g) read with section 2(1)(o) of the C. P. Act, 1986. Therefore, the complainant is entitled to some relief when the O.Ps. did not handover physical possession of the car parking space.

It may be noted here that and her parents purchased the subject flat and car parking space from the O.Ps. but the complainant did not implicate her parents as complainants. No objection has been raised as against the apperent omission of other two purchasers / vendee being posed as complainant. Under this circumstance, this apparent omission does not appear to be fault because interest of other two purchaser / vendee is being represented and protected by the sole complainant of the instant consumer case.

Keeping in view the fatcs of the present case, we allow the following reliefs as prayed by the complainant-

1. O.Ps. are directed to handover physical possession of the subject car parking space to the complainant and her parents as per registered Agreement for Sale Deed of Conveyance dated 27/04/2018 within 30 days from the date of this order.
2. O.Ps. are directed to supply of photocopy of invoice of GST of Rs.5,40,000/- to the complainant and her parents and if any excess GST amount has paid to the O.Ps. such excess amount should be refunded to the complainant and her parents within said period.
3. O.Ps. are directed to pay Rs.50,000/- to the complainant and her parents within the aforesaid stipulated period too. 
4. No order as to cost.

With these directions the instant consumer complaint stands disposed of.

Copy of the Judgement be supplied to the parties as per rules and judgement be uploaded to the Website of the Commission forthwith for perusal of the parties.