FINAL ORDER/JUDGEMENT

SHRI  ASHOKE KUMAR GANGULY, MEMBER.

            This is a complaint case u/s 35 of the CP Act, 2019. The fact of the case, in brief is that the Complainant  Shri Anupam Chakraborty was proposed by one Mr. Santosh Kumar Ram, being the OP No.2 for selling of a flat measuring 375 Sq. Ft. at the proposed G+1 storeyed building to be constructed at 23G/1, Christopher Road, P.S. Tangra, Kolkata – 700046. Smt. Fulmati Devi being the OP No.1  is the mother of the OP No.2,3 & 4 and they are the owners/developers of the proposed construction at the said address. The complainant paid a sum of Rs.3,00,000/- to the Vendors on 10.5.2015 as per Agreement executed in between them. The construction work started and the complainant paid another Rs.5,00,000/- to the Vendors with assurance to complete the construction within 06 months from 10.05.2015. The Vendors wanted to construct one more floor for which they were not completing the subject flat of the complainant. The complainant wrote a letter dated 20.06.2016 to the Advocate who drafted the sale Agreement. The complainant through that letter wanted to get the subject flat in full completion or to refund him the amount paid to the Vendors. The complainant thereafter paid them  another Rs.25,000/- as per request of the Vendors. Again for electricity connection the Vendors demanded another Rs.10,000/- from the complainant which was also paid to them. The Vendors were asked to negotiate with the CESC Authorities but they  were reluctant to do so. The complainant tried to resolve the issue through the Consumer Affair Department which was ended fruitless for non participation of the Vendors. Thereafter the Consumer Complaint has been filed by the complainant praying for relief/reliefs as detailed in the complaint petition.

The OPs have contested the case by filing their W.V. contending inter alia that the complaint is purely misconceived and baseless. There is no cause of action for the case against the OPs. The OPs submit that they are not a trader or Developer or any service provider. Purely for want of money they wanted to sell one flat measuring 375 sq.ft.approx. (25% super built up) @ Rs.3050/- per sq.ft. at a total cost of Rs.11,43,750/-  The Agreement for Sale was executed on 10.05.2015 and the complainant paid Rs.3,00,000/- as earnest money and thereafter Rs.5,35,000/- to the Vendors. The flat in question was completed by the Vendors within 08 months from the date of the Agreement and the complainant was requested to take possession of the subject flat in the month of January 2016 and the complainant did not pay the balance money and was reluctant to take possession of the subject flat. Since the complainant did not pay the balance money for which the Vendors desired to refund the earnest money so received after deducting 10% as per clause No. 9 of the Agreement which was not agreed upon and accepted by the complainant. The OPs denies the proposal of selling the flat at a price of Rs.8,00,000/-.  The OPs admit that Rs.25,000/- was accepted as part consideration of the cost of the flat and Rs.10,000/- towards CESC meter installation. Since there is no deficiency in service and there was no unfair trade practice on the part of the OPs they have submitted  before the Commission to dismiss the complaint.

                                         Points for Determination

On the pleading of parties the following points have necessarily come up for determination.

1. Whether the OPs have got deficiency in service.
2. Whether the OP are indulging unfair trade practice.
3. Whether the Complainant is entitled for the relief/reliefs as prayed for.

Decision with Reasons

Points Nos. 1 to 3 :-

All the points are taken up together for the sake of convenience and brevity in discussion.

Complainant and the OP have tendered their Evidence on Affidavit. Replies to the questionnaire set forth by their adversaries have not been filed. Both parties  have submitted their BNA also.

We have travelled over the documents placed on record. 

The admitted fact of the case is that the complainant had entered into an Agreement for Sale with the OPs on 10.05.2015 for purchasing a flat admeasuring 375 Sq.Ft. approximately on the 1^st Floor consisting of two bed rooms, one bath room with common roof right along with other rights  at premises No. 23G/1, Christopher Road, P.S. Tangra, Kolkata -700046 at a total consideration price of Rs.11,43,750/- . The agreed rate per square feet was Rs 3050/- .

The manner in which the total consideration price of Rs.11,43,750/- is to be paid  has been mentioned in the said Agreement under clause No.1

1. Rs.3,00,000/-  is to be paid on the date of execution of this agreement.
2. Rs.3,00,000/- on date of Dhalai of roof Top.
3. Rs.4,00,000/- on date of Gathni,Plaster and completion of the flat in a habitable condition.
4. And balance amount to be paid on the date of Registration.

From the agreement itself it is observed that the complainant has paid a sum of Rs.3,00,000/- to the Vendors on the date of agreement i.e. on 10.05.2015. We do not find any other money receipts of further payments. But both parties have agreed to the fact that another payments of Rs 5,25,000/- have been paid towards part consideration of the subject flat. Another payment of Rs.10, 000/- was also paid by the complainant towards CESC Installation charges.

Out of the total agreed price of Rs.11,43,750/- the complainant has paid a total sum of Rs.8,25,000/- to the Vendors.  As such the balance amount of Rs.3,18,750 is still to be paid by the complainant.

Under Clause No. 6 & 7 it is mentioned that the parties of the First Part deliver the possession of the said flat to the parties of the second part within 8 months from the date of execution of this agreement.

In Clause No.9 of the Sale Agreement it is mentioned that

It is also that if the purchaser fails to pay the consideration money then the first party have every right to refund the earnest money so received after deduction of 10% in favour of the purchaser and similarly if the first party fails to complete the flat in respect within the said 8 months then he shall have to pay the Bank interest of earnest money to the purchaser till the possession is handed over in favour of the purchaser.

From the facts and circumstances of the case it stands that the complainant has not paid the dues as per the Sale Agreement and the Vendors have not handed over the subject flat to the complainant till date. During the long period since 10.05.2015 i.e. the date of execution of the Sale agreement there appears to have some formal and informal developments which however had ended with no results.

We also find a dispute in the matter of measurement of the flat. The complainant could have agitated the matter during the course of hearing and could have prayed for appointment of Engineer Commissioner for exact measurement of the subject flat. But the complainant has not opted for the same for which the Commission cannot interfere in the said matter at this stage.

Moreover, in that respect we find from the letter dated 17.02.2020 issued by the Consumer Affair Department, Govt. of West Bengal during the period of Mediation that one Mr. S.K. Bhattacharya,, L.B.S. of KMC  prepared a site plan of the subject flat which remained unsigned by both the purchaser and the Vendors for which the said document does not merit for a cognizable document. Even that, there was also an opportunity on the part of the complainant to adduce evidence by that L.B.S. Mr. S.K. Bhattacharya for rendering technical support in the matter of exact measurement of the subject flat. But nothing so has been done by the complainant.  

It is also the fact that the complainant has paid a substantial amount towards the purchase price of the flat and the OPs have not handed over the subject flat nor issued any demand notice for payment of the balance consideration price to the complainant. It was their duties and responsibilities  to apprise the complainant regarding advancement of the completion of the building. They have neither intimated the complainant formally about the progress of the construction nor arrange to hand over the flat to the complainant in due time. All these lapses tantamount to deficiency in service on the part of the OPs.

 As such, to end up the long persisting issue both sides should come forward with positive mind and there should be logical and realistic approach to be adopted by both the parties. Keeping that view in the mind the best option to settle the issue is that the  complainant will pay the balance consideration price and the OPs will hand over the subject flat duly completed in all respects as per the Sale Agreement dated 10.05.2015.

Considering the facts and circumstances of the case and the documents placed on record we are of the considered view that the complainant has established his case in part against the OPs.

Thus all the points under determination are answered accordingly.

In the result, the Complaint succeeds in part.

Hence,

                     Ordered 

That  the Complaint case be and the same is allowed in part on contest against  the OPs with the following directions

1. The Complainant will pay the balance consideration amount of Rs.3,18,750 to the OPs within a period of 45 days from the date of the order and the OPs will hand over the subject flat duly completed in all respects as per the Sale Agreement dated 10.05.2015 on receipt of the balance consideration amount of Rs.3,18,750 from the complainant.
2. The OPs are also directed to issue the Possession Letter in favour of the complainant along with sanctioned building plan immediately on receipt of the full consideration money and arrange for registration of the subject flat as per the Sale Agreement at the earliest but within 90 days from the date of the order. The OPs will also hand over the completion certificate of the building to the complainant within the stipulated period of 90 days.

3.  Alternatively, the OPs are directed to refund the full consideration amount of Rs.8,35,000/- to the complainant along with simple interest @ Rs7.5% p.a. from the date of respective payments till realization

4. The OPs will further pay a sum of Rs.5,000/- to the Complainant as litigation cost.

The above orders are to be complied within the stipulated period as mentioned above, in default, the aggrieved party/parties may take steps as per the provisions of the C.P.Act of 2019

Copies of the judgementbe supplied to the parties free of cost as per the C.P. Act and the judgement be uploaded to the website of the Commission forthwith for perusal of the parties.