Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complainant has submitted that the OP is the sole owner of the land holding and premises No.64/53A, Belgachia Road, Kolkata – 700 037 and OP intended to develop a three-storeyed residential building on the said land and to fulfill such intention the OP approached the complainant and complainant was intended to purchase a flat and accordingly entered into agreement for a sale with the OP on 11-02-2013 and measurement of the said flat is 650 sq. ft super-built of area and total consideration was fixed for Rs.7 lakhs and as per terms and condition of the said agreement entire consideration money of the flat was paid to the OP and the OP issued a possession letter to the complainant on 26-08-2013 and on the strength of the possession letter dated 26-08-2013 the complainant temporarily shifted with her family members in the said flat and started interior decorations of the said flat but some period complainant was out of the said flat when on 18-09-2013 said flat was placed under lock and key and when she reached to the said flat she found some miscreants and muscle men along with the OP and his relatives the lock of the said flat and started removing all of her luggage and household goods of the complainant and considering that fact complainant lodged a complaint to the local P.S. and lodged a General Diary.  Thereafter on several occasions the complainant requested the OP to execute the Deed of Sale in terms of the said agreement dated 11-02-2013 and to hand over the possession of the said flat and/or refund the entire consideration money of Rs.7,00,000/- with compensation.  But OP did not pay any heed to that and also did not take any step and for violation of the contract and also for negligent and deficiency manner of service this present complaint is filed.

          In fact, the notices has been duly served upon the OP but they did not turn up even after receipt of the notice of this complaint and so even then and thereafter complainant filed evidence in chief in ex parte that was also sent to the OP but that was not accepted by the complainant.  Thereafter, OP was given to file questionnaire, e-chief but OP did not turn up so the complaint was filed and heard ex parte.

Decision with Reasons

On proper consideration of the complaint including the agreement to Sale dated 11-02-2013 it is clear that OP is the owner cum developer of a housing complex and he constructed the same for selling the same to the intended purchaser and as per agreement complainant is bound to give some services and as per agreement complainant was entitled to get possession on full payment of consideration and considering the material it is found that complainant already paid Rs.7 lakhs as entire consideration of the flat and one possession letter was issued by the OP on 26-07-2012 but it was not accepted because the interior decoration has not been completed but complainant took initial possession for interior decoration but the possession of the flat is taken by the muscle man of the OP.  This fact was reported to the police and OP was asked to give possession and registration of the sale deed but fact remains OP received the notice including the evidence in chief of the complainant he had his scope to contest the case but he did not turn up and practically the allegation of the complainant has not been challenged by the OP though he had has scope to defy it so considering the allegation of the complainant including the materials on record we are convinced to hold that in fact as per agreement dated 11-02-2013 OP already received the entire consideration of Rs.7 lakhs but has not properly executed any sale deed and handed over the flat in favour of the complainant.  however, we may noted that the entire agreement deed states that it is a housing construction and same has been subsequently covered under the definition of service as per amendment inserted by Act 50 of 1993 with effect from 18^th June, 1993 that being the position as far as the housing construction by sale of flats by builders or societies is concerned, that would be on a different footing. On the other hand, where a sale of plot of land simpliciter is concerned and if there is any complaint, the same would not be covered under the said Act.  But considering the ruling in several judgments of different reports we have gathered that the present agreement has not been cancelled and there is no challenge on the part of the OP regarding the payment of the entire consideration and also there was no challenge against allegation of  taking possession of the said flat was taken forcibly for selling it to some other third person but the present agreement comes under the purview of housing construction and same has been specifically covered under the definition of service as of C.P. Act and the fact of this case makes it very clear that the OP raised a new building after getting necessary approval of the Municipal Authority and a part of which he sold to the complainant and it has come on the record that there are some other flats which had already been sold by the OP so we are convinced to hold that the complainant is entitled to get relief as OP has not rendered its service as per agreement and for deficiency and negligent manner of service and also for adopting unfair trade practice complainant is entitled to get a decree as prayed for either to sale or handover the possession or by returning the entire Rs.7,00,000/- with compensation and litigation cost.

          At the fag end of the hearing argument the complainant submitted that admittedly OP has sold the property to some other by force even after existence of the present agreement only to defy the claim of the complainant so necessary order may be passed so that if it would not be possible to give the decree in respect of execution of sale deed in that case refund of the entire consideration amount with compensation and imposing such penalty etc.  Considering the whole facts and circumstances we are convinced that complainant has been able to prove the case beyond any manner of doubt and allegations are proved a truth and OP’s conduct has been proved a dishonest conduct as owner cum developer and no doubt he has deceived the complainant even after receipt of total consideration of Rs.7 lakhs but no relief has been given.  In the result, the complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on ex parte with a cost of Rs.10,000/- against the OP. 

          OP is hereby directed to handover the possession of the said flat within one month from the date of this order and execute the sale deed in respect of the flat as described in the scheduled of the said agreement to sale within one month from the date of this order at OP’s own cost and if OP fails to comply this order in that case after expiry of one month from the date of this order OP shall have to refund Rs.7 lakhs already received as consideration and also composite compensation with interest to the extent of Rs.6 lakhs for harassing the complainant for removing the complainant from possession of the flat and for selling the flat to a third party at a higher rate and for deceiving the complainant and same shall be paid invariably within one month.  If OP fails to comply the first part of the order in connection with delivery of possession and execution of the Deed of Sale in respect of the disputed case flat.

          For adopting unfair trade practice by the OP and for deceiving the customer in such a manner OP is imposed penal damages of Rs.50,000/- and for adopting unfair trade practice and same shall be deposed within one month from the date of this order to this Forum.

          OP is hereby directed to comply the order within the stipulated period failing which for non-compliance and disobedience of the Forum’s order proceedings u/s.27 of the C.P. Act shall be started against the OP for which OP shall be imposed further penalty and fine.