FINAL ORDER / JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

The petition of complaint has been filed by the complainant U/S 35 of The C.P. Act, 2019.

The fact of the case in brief is that the complainant No.-1 and 2 are doctors and complainant no. 3 is the senior citizen and the father of the complainant no.-1.

It is further stated by the complainants that they had entered into an agreement for sale dated 30.03.2015 for purchasing a flat from the OP being Flat No. 7A on the 7^th floor measuring about super built up area of 2150 sq. ft. more or less along with car parking space comprised in the block named Gardenia / No.7A forming part of the complex named “Ideal Greens” at a consideration of Rs.99,39,442/- out of which Rs.76,65,759/- had already been paid in from of part payment and the remaining part of the consideration i.e. on Rs.22,73,663/- could be paid by the complainant on the date of getting possession as per terms and condition of the agreement and it was agreed by the OP in the said agreement that the flat in question shall be completed by or before April, 2018.  The copy of the agreement dated 30.03.2015 is Annexed “A”.

It is further stated by the complainant in written complaint that on the date of agreement for sale dated 30.03.2015. The complainant made payment of a Rs. 76,65,759/- (Rs seventy six lacs sixty five thousand seven hundred fifty nine) only. The copy of statement of A/c to that effect has been marked as annexure B.

It is alleged by the complainant that on several occasions he requested the OPs to inform him to allow the progress of the project but the representative of the OP did not give any information to the complainant rather in the month of Oct, 2017 the complainants visited the spot of construction and found that only the pilling work was completed whereas the OPs agreed to handover the possession of flat in question situated in the 7th floor of the building on April 2018. then the complainants went to the office of the OPs and asked them about deficiency and discrepancy on their part to which the OPs assured the complainants that the subject flat shall be delivered on or within 06 months from the date of the actual date of completion of the construction and development of the subject flat but ultimately, they failed to handover the flat in question to the complainants till date. thereafter, the complainants ventilated their grievance to the OPs by e-mail and the OPs vide e-mail dated  10.07.2018 again informed the complainants that the flat in question shall be completed by December, 2019 and the complainants may pay 15 % upon receiving flat for fit outs and remaining balance on the date of possession. The e-mail dated 10 July 2018 sent by the OPs has been annexed as annexure “D”. but ultimately the OPs failed to handover the possession of the subject flat to the complainant till date and violated the agreement dated 30.05.2015 which is deficiency in service, negligence on the part of OPs which caused harassment, mental pain and agony and monetary loss to the complainant.

Hence, the case is filed by the complainant before this commission with a prayer to give direction to the OPs for giving delivery of possession of the subject flat and to execute the deed of sale in favour of the complainants id to refund the entire payment made by the complainant as part payment of consideration money for the said flat.

It is also prayed by the complainant to give direction to the OPs for giving compensation of Rs.  50,00,000/-  to the complainants only for  humiliation, harassment and deficiency in service on the part of the OPs along with litigation cost of Rs,1,00,000/-.

The OP has contested the claim application by filing a WV through its authorised signatory Abhinav Misra denying all the allegation levelled against it.

 It is the case of the OPs that the complainants have suppressed several materials facts.  Thus, the petition of complaint is liable to be dismissed.

Admittedly the complainants agreed to purchase a residential flat  being 7A on 7^th floor in the block “Gardenia” in “Ideal Greens” along  with one car parking space being park No. B. in the basement accordingly an allotment letter was issued in favour of the complainants on 10.02.2015 (annexure-A). Thereafter, the OP company entered in to an agreement for sale through its representative with the complainants on 30.03.2015 and the total consideration of flat was Rs. 99,39,422/-. It is also admitted fact that the complainants have made payment of a sum of Rs.  76,65,759/- towards the part consideration of the flat and car parking space and a sum of Rs.  24,62832/- is still lying due.

The OP Co. through its authorised signatory has further stated in WV that the construction of such a big project is depending on various sanctions and permissions granted by different authorities. In the present case due to unavailability of labour and other materials the OP co. failed to complete the project and which was beyond the control of the co. Such facts were well within the knowledge of the complainants. It is further stated by the OP Co. through its authorised signatory that the complainant had opportunity to cancel the agreement if they were dissatisfied with the delay caused in construction of the subject project. But they did not cancel the same.

It is also categorically denied by the OP that the OP has negligently and wrongly failed to deliver the possession of subject flat to the complainants or has caused any loss or harassment to the complainants. It is also denied that there was any sort of deficiency in service on the part of the OP.

As per OPs case the complainants have no cause of action to file this case and the petition of complaint is liable to be dismissed with cost.

In view of the above stated pleadings the points of considerations are as follows:-

1. Is the case maintainable in its present form?
2. has the complainant any cause of action to file the case
3. Is the complainant a consumer?
4. Is there any deficiency in service on the part of the OPs?
5. Is the complainant entitled to get relief as prayed for?
6. To what other relief or reliefs is the complainants entitled to get?

Decision with Reasons

All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.

 From careful perusal of the material on record and also considering  the position of law, it appears that the case is well maintainable in eye of law and this commission has ample jurisdiction both territorial and pecuniary to try this case.

The complainants have intended to purchase the subject flat along with car parking space in the basement  as mentioned in the schedule of petition of complaint being flat no. 7A on the 7^th floor of the building measuring super built up area 2150 sq. ft. more or less in the name “Gardenia” situated at premises No. 591A, Moti Lal Gupta Road, Kolkata-700008.

It is admitted fact that the complainants have entered into an agreement for sale with the OPs on 30.03.2015 and paid the part consideration of Rs 76,65,759/- against proper money receipt. So, when the complainant entered into agreement for sale with the OPs and paid the part consideration out of the total consideration money of Rs. 99,39,422/- only against money receipt paid by the representative of the OP since then as per CP Act  2019. The complainant is a consumer beyond all reasonable doubt and the OP is the service provider.

It is the complainant’s case  that as per agreement (annexure A). It is agreed by the OP that the flat in question and the car parking space shall be completed by or before April, 2018 but it is admitted fact that till filing of this case the OP could not be able to complete the construction work of the subject flat and car parking space and also could not be able to handover the possession of the same to the complainants or to execute the deed of conveyance to that effect on receipt of the balance consideration money i.e Rs.  22,73,663/- only.

Ld. advocate for the complainant argued that the complainants on several occasions requested the OP and his  representative to inform about the present position of construction work of the subject flat but the OP did not pay any heed to their words and they personally visited the spot and found that only pilling work was completed and in spite of expiry of the period for handing over the possession of  subject flat and car parking space to the complainants the OP did not take any proper steps to informed about the actual picture of construction work. The OP in its BNA as well as WV  practically admitted the position that they entered  into agreement for sale date d 30.03.2015 with the complainants for the subject flat at a consideration  of Rs. 99,39,342/- only in total and the OP received a sum of Rs.  7665759/- only as part consideration of the complainants and agreed to complete the construction work from the subject  flat by or before April 2018. but they failed to complete the construction work. The OP has taken the plea that due to some unavoidable circumstances, the construction  of the subject flat could not completed  the work and the OP could not able to handover the possession  of the subject flat to the complainants. It is also the plea of the Op that the complainant had option to cancel the agreement for sale as the OP could not complete the construction work in time, such plea taken by the OP and from evidence on record as adduced by the parties to this case it is proved beyond all reasonable doubt that the complainant could be able to prove their case that the OP failed to comply the terms and condition of the agreement for sale and they did not pay any heed to the request of the complainants to handover the subject flat to them in time and to execute and register the deed of sale in respect to the subject flat and car parking space in question in their favour which means there was deficiency  in service and negligence on the part of the OPs which caused humiliation, mental pain and agony and loss of money to the complainants and such conduct of the OP compelled  the complainants to knock the door of the commission for getting relief.

In view of discussion made above, it is held by this commission that the complainants could be able to prove their case successfully beyond all reasonable doubt and are entitled to get the relief as prayed for. 

All the points of consideration are thus considered and decided in favour of the complainants.

The case is properly stamped.

Hence,

Ordered

That the case be and the same is decreed on contest against the OP with cost of Rs. 5,000/-.

The complainants do get the decree as prayed for.

The OP is directed to deliver the passion of the flat in question in favour of the complainant and to execute the deed of sale in their favour id the OP is directed to refund the amount of Rs. 76,65,759/- only  which is  paid by  the complainants as part consideration along with interest @ 9 %. On the above mentioned amount from the date of filing of this case till realisation within 45 days from this date of order.

The OP is further directed to give compensation to the complainants of a sum of Rs. 50,000/- along with litigation cost of Rs. 20,000/- within 45 days from this date of the order id the complainants will be at liberty to execute the decree as per law.