FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The instant petition of complaint is filed by the complainant U/s 35 of the CP Act 2019.
The fact of the case in brief is that the complainants have entered into a tripartite agreement for sale with the OPs 1, 2 and 3 as vendors, OPs-4 represented by its three partners being the OPs 5 and 6 and the predecessor-in-interest of the OPs 7 and 8 as confirming party on 15.04.2012 to sell the property in question set forth in the schedule of the petition of complaint from the developers share of allocation. The total consideration price is/was of Rs. 36,00,000/-.
It is further stated that the partner of the OP-4, Utpal Bose died intested leaving behind his wife and daughter, the OPs 7 and 8 respectively as his legal heirs, successors and representatives. The complainants further stated that with the execution of the said agreement dated 15.04.2012, they paid a sum of Rs. 10,00,000/- only as part payment and paid total a sum of Rs. 35,00,000/- to the OPs 5 and 6 and the predecessor-in-interest of the OPs 7 and 8 as advance earnest money on different dates and part performance of contract on different dates only Rs. 1,00,000/- was payable by the complainants to the developers. The developers and owners undertook and assured to sell the flat in question measuring about super built up area of 1000 sq ft. @ Rs 3600/- per sq ft i.e. total consideration is of Rs. 36,00,000/- only . The measurement was qualified by a surveyor on 01.04.2023 and the complainants found that actually the flat in question was of 635 sq. ft. even adding 20 % super built up area, the total super built up area of the said flat stands to 762 sq. ft. . It is alleged that the said flat in question was constructed by the OPs deliberately and intentionally with lesser area.
The complainants on several occasions requested the OPs that to be present at the time of survey on depute their surveyor despite assurance, the OPs did not turn up at the time of taking measurement with their surveyor at the flat in question. The complainants were always ready to pay the balance consideration money of the subject flat but the OPs did not perform their part as per terms and conditions of the agreement .
The complainants served the legal notice dated 3.01.2023 but the OPs did not response to that effect which caused harassment, mental pain and agony to the complainants.
Hence, the case is filed by the complainants with a prayer to give direction to the OPs to execute the deed of conveyance in respect of the subject flat and to execute the registered deed of conveyance as per terms and conditions of tripartite agreement dated 15.04.2012 and also prayed for giving direction to the OPs to handover the completion certificate of the subject property to the complainants and also prayed for giving direction to the OPs to complete and finish painting of the outer wall of entire building and handed over the occupation and completion certificates of the subject property to the complainants. The complainants also prayed for compensation of Rs. 3,00,000/- for harassment, mental pain and agony and also prayed for compensation of Rs. 2,50,000 for damage, delayed execution and registration the deed of conveyance along with litigation cost of Rs. 2,50,000/-.
On a close scrutiny of the materials on record, it appears that even on receipt of the notice, the OPs neither appear before this commission nor contest the case by filing WV .
Under such circumstances, the commission run the case ex parte against the OPs vide order dated 11.10.2023.
In view of the above stated facts and circumstances, the petition of complaint as well as materials on record, the points of consideration will be:-
- Is the case maintainable in its present form?
- has the complainant any cause of action to file the case
- Are the complainants a consumer?
- Whether there was any deficiency in service on the part of the OPs?
- Are the complainants entitled to get relief as prayed for?
Decision with reasons
All the points of consideration are taken up together for convenience of discussion and to avoid unnecessary repetition.
On a close scrutiny of the ex parte evidence given by the complainants and the materials on record submitted by them, it is found that this case is well maintainable in the eye of law and the complainants being the intending purchasers of the flat measuring about 1000 sq. ft. at a consideration of Rs 36,00,000/-. From evidence on record, it is also revealed that the complainants have paid Rs. 35,00,000/- to the OPs against money receipt on different dates. From the unchallenged testimony of the complainants, it is proved that on the date of execution of tripartite agreement dated 15.04.2012, they paid Rs. 10,00,000/- as earnest money out of total consideration of Rs. 36,00,000/-.
The rest amount of Rs. 25,00,000/-, they paid on different dates and the OPs issued the money receipt to that effect. So, we do not find any reason to disbelieve the unchallenged testimony of the complainants as and when the OPs received the money against the money receipt on the basis of tripartite agreement dated 15.04.2012 since then the complainants are the consumers and the OPs are the service providers.
From the evidence of the complainants and also from the evidence on record, it is also proved that the OPs have failed to comply the terms and conditions of the agreement for sale. being intending purchasers, the complainants i.e . consumers paid a sum of Rs. 35,00,000/- out of Rs. 36,00,000/- towards the total consideration money of the subject flat to the OPs. They received the amount of Rs. 35,00,000/- against the money receipt but they did not complete the project or did not execute the register deed of conveyance in favour of the complainants. So, the complainants rightly knocked the door of the commission or getting reliefs and are entitled to get the reliefs as prayed for.
The service provider/ the OPs did not perform their part as per agreement and caused the harassment, mental pain and agony to the complainants by their in action. The complainants are always ready to pay the balance consideration money of Rs. 1,00,000/- to the OPs but the OPs never were ready to execute and register the deed of conveyance in respect of the subject flat to the complainants and or to handover the completion and occupation certificates issued by KMC to the complainants.
Such conduct of the OPs should be termed as deficiency in service on their part as the service provider for which they are liable to pay compensation to the complainants.
In view of discussion made above, this commission is of view that on the basis of unchallenged evidence on record the complainants could be able to prove their case against the OPs beyond all the reasonable doubt and are entitled to get reliefs as prayed for.
All the points of consideration are considered and decided in favour of the complainant.
The case is properly stamped.
Hence,
Order
that the case be and the same is decreed ex parte against the OPs with cost of Rs. 5,000/-
The complainants do get the decree as prayed for.
The OPs are directed to execute and register the deed of conveyance in respect of the subject flat as mentioned in the schedule of the petition of complaint in favour of the complaint as per terms and conditions of tripartite agreement dated 15.04.2012 within 60 days from this date of order.
The OPs are further directed to complete and finish the painting of outer wall of entire building and to handover the occupation as well completion certificates issued by KMC in respect of the subject property to the complainants.
The OPs are further directed to give compensation to the complainants of Rs. 1,00,000/- for mental pain and agony either jointly or severally along with litigation cost of 50,000/- within 60 days from this date of order, i.d. the complainants will be at liberty to execute the decree as per law.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
