FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.12 of the C.P. Act, 1986.
Brief facts of the consumer complaint:-
The OPs 3 & 4 being the owners of Premises No. 12/2A, Dharmatala Road, Kolkata-700 042 entrusted OPs 1 & 2 to develop their land situated at Kasba Mouza, J.L. No. 13, Touzi No. 145 comprised in Dag Nos. 1907 & 1908 under Khatian No. 30 of K.M.C. Ward No. 57. Complainant had entered into an Agreement for Sale dated 07.01.2019 with the OPs for purchasing a flat measuring about 250 sq. ft. more or less (carpet area) on the top floor of the proposed building at a consideration of Rs. 3,00,000/-. Complainant paid Rs. 95,000/-. That the possession of the flat would be handed over to the complainant within two months from the date of execution of the Agreement for Sale dated 07.01.2019. The OPs have failed to meet the commitment and also failed to provide the service, hence, a legal notice dated 20.03.2019 was duly sent to the OPs but of no consequence. Finding no other way out, the complainant filed the present consumer complaint.
The OPs 1 & 2 were duly served of the complaint. However, despite service of notices upon them, no Written Version is filed.
The OPs 3 & 4 have contested the case by filing Written Version contending, inter alia; that they are ready and willing to execute and register Deed of Conveyance of the subject flat as and when called for. Complainant paid consideration amount to the OPs 1 & 2 / developers. Therefore, the answering OPs have no responsibility to handover possession of the subject flat to the complainant.
Complainant Shri Dibyendu Motilal has filed his evidence by way of affidavit supporting the allegations made in the complaint. OPs 3 & 4 did not file their evidence despite given opportunities. We have heard the argument on merit.
The complainant by way of un-contradicted testimony has proved that the OPs have entered into an Agreement for Sale dated 07.01.2019 with the complainant and is supposed to handover the subject flat to the complainant within two months but despite the expiry of the said period the possession of the flat is not handover to the complainant. Complainant has also stated that he has paid Rs. 95,000/- out of total consideration of Rs. 3,00,000/- to the OPs 1 & 2/ developers. Since the complainant has clearly stated that the OPs have filed to handover the subject flat within the stipulated period, the OPs 1 & 2 being the developers have committed deficiency in service. As per Agreement for Sale dated 07.01.2019 the OPs 1 & 2 are liable to sale the subject flat from their allocation to the complainant. The liabilities of OPs 3 & 4 / owners is only execute and register Deed of Conveyance in favour of complainant with the developers. The developers fail to fulfill their commitment. Therefore, we have no hesitation in concluding that the OPs 1 & 2 have committed deficiency in service as also have indulged in unfair trade practice.
In view of the discussion above, the complaint is allowed with following directions:-
- The OPs 1 & 2 / Developers are directed to handover possession the subject flat to the complainant within 30 days from today after receiving balance consideration amount.
- OPs are jointly directed to execute and register Deed of Conveyance of the subject flat in favour of the complainant within one week from the date of handover possession.
- Alternatively, the OPs 1 & 2 are directed to refund Rs. 95,000/- to the complainant within 60 days from today along with compensation of simple interest at the rate of 10 percent per annum from the date of payment till the realization of the amount.
- OPs 1 & 2 are directed to pay a sum of Rs. 10,000/- as cost of litigation to the complainant. With these directions the present consumer complaint stands disposed of.
Copy of the judgment given to the parties as per rule.
