FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
The facts, as narrated in the complaint are that complainants have booked a residential flat measuring about 800 sq. ft. super built up area on the second floor of KMC Premises No. 25, Doctor Lane, Kolkata-700014. An Agreement for Sale dated 16.01.2013 was executed between the complainants and the OPs wherein it has been agreed that the total consideration of subject flat is Rs. 5,000/- per sq. ft. Complainants have paid Rs. 33,00,000/- to the OP on different dates against money receipts. As per Agreement for Sale the OP is liable to be executed and registered Deed of Conveyance in favour of the complainants in respect of the subject flat including undivided proportionate share of land. OP measurably failed to comply the terms and conditions of the agreement for sale. It is further averred in the complaint petition that the OP did not handover possession of the subject flat measuring about 800 sq. ft. super built up area on the second floor of the proposed building to the complainants violating the terms and conditions of the agreement for sale dated 16.01.2016. Alleging deficiency in service and unfair trade practice on the part of the OP, the complainants approached the Commission for getting relief and/or reliefs against the OP.
Despite service of notice, the OP did not turn up to contest the case by filing WV. Thus, the case runs ex parte against the OP.
In support of their case, both the complainants have tendered joint evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainants have also filed BNA. We have heard argument on merit and have also perused the record.
On perusal of the photocopy of Deed of Gift dated 05.12.2007, it appears to us that OP Sri Goutam Datta obtained the property fully mentioned in the deed of gift and being the owner of KMC Premises No. 25, Doctor Lane, Kolkata-700014 has executed an Agreement for Sale dated 16.01.2013 with the complainants for sale of the subject flat fully mentioned in the Schedule-B of the said agreement. As per Agreement for Sale, the complainants are entitled to get possession 800 sq. ft. super build up area on the second floor of the subject flat consisting of 2 bed rooms, 1 leaving cum dinning room, one kitchen, 1 bath along with proportionate share of undivided land. Agreement for Sale further goes to show that the complainants are liable to pay consideration amount of Rs. 5,000/- per sq. ft. in respect of the subject flat. Thus, the total consideration amount of the subject flat is Rs. 40,00,000/- and the complainants have already paid Rs. 33,00,000/- to the OP against money receipts which appears from the schedule of the agreement for sale. Despite request and reminders the OP did not handover physical possession of the subject flat to the complainants.
It is true that the OP agreed to deliver physical possession of the subject flat and also execute and register deed of conveyance in favour of the complainants but the OP did not fulfill the terms of the agreement for sale. Thus, the allegations stated in the complaint petition remains unchallenged as there is no evidence on the part of the OP to rebut the allegations of the complainants. Therefore, we can safely state that on failure to contest the case by OP tantamount to admission on the allegations stated in the complaint petition. It is very unfortunate that as per agreement for sale the OP has failed to handover physical possession of the subject flat measuring about 800 sq. ft. super built up area on the second floor of the proposed building to the complainants. Complainants are ready to pay the balance consideration amount to the OP. It is not justify that the complainants by any means suffer any more time for the breach of the agreement for sale dated 16.01.2013 on the part of the OP.
In the light of the above discussion, we are of the view that the complainants are the Consumers under the provisions of CP Act, 2019. We also find, both deficiency in service within the meaning of Section 2 (11) and unfair trade practice within the meaning of Section 2 (47) of the CP Act, 2019 to be well and truly evident on the part of the OP.
On the basis of forgoing discussion, we find the merit of the case and following directions are therefore, issued:-
- OP, Mr. Goutam Datta is directed to handover peaceful vacant possession of the subject flat measuring about 800 sq. ft. super built up area on the second floor of Premises No. 25, Doctor Lane, Kolkata-700014, PS Taltala in terms of the Agreement for Sale dated 16.01.2013 inhabitable condition and also issued completion certificate as well as possession certificate to the complainants.
- OP is also directed to execute and register deed of conveyance in favour of the complainants on receiving balance consideration amount of Rs. 7,00,000/-. Complainants are directed to pay the balance consideration amount of the subject flat to the OP on the date of execution and registration of deed of conveyance.
- OP is directed to pay Rs. 25,000/- only to the complainants as compensation for their mental harassment.
- OP is further directed to pay Rs. 5,000/- to the complainants as litigation cost.
- Alternatively, the OP is directed to refund Rs. 33,00,000/- to the complainants along with interest @ 9 % p.a. from the date of payment till realization coupled with litigation cost of Rs. 5,000/-.
OP is directed to comply the order within a period of 90 days from the date of this order in case of the OP fails to comply the order, in that event complainants may file Execution Application U/ss 71 and 72 of the CP Act, 2019 against the OP.
Copy of the judgment be supplied to the parties free of cost as per rules. Upload the judgment on the website of this Commission for perusal of the parties.
