1.         The present First Appeal (FA) has been filed by the Appellant against Respondents as detailed above, under section 19 of Consumer Protection Act, against the order dated 04.02.2019 of the State Consumer Disputes Redressal Commission, West Bengal (hereinafter referred to as the ‘State Commission’), in Consumer Complaint (CC) No.369/2018 inter alia praying for setting aside the impugned order passed by the State Commission.

2.         The First Appeal has been filed with a delay of 86 days as pointed out by the Registry.  Delay in filing the First Appeal is condoned after considering the reasons adduced during the hearing, keeping in view the judgments of Hon’ble Supreme Court in Sesh Nath Singh v. Baidyabati Sheoraphuli Coop. Bank Ltd., (2021) 7 SCC 313.

3.         The Appellant was Respondent -1 and Respondent-1 was complainant and Respondent -2 was Respondent-2 before the State Commission in said CC/369/2018. Notice was issued to the Respondents on 20.08.2019. Despite service upon Respondent No.2, none appeared on behalf of Respondent-2, hence Respondent-2 was proceeded ex-parte.  Parties filed Written Arguments/Synopsis on 08.01.2020 (Appellant) and 01.01.2024 (Respodnent-1) respectively and compilation of judgments on 16.04.2024 (Appellant) and 23.04.2024 (Respondent-1).

4.         Brief facts of the case, as presented by the Complainant and as emerged from the FA, Order of the State Commission and other case records are that :

the complainant booked three flats (two flats on the fifth floor and one on the third floor) one flat for himself and his family members along with his one sister (widow), another flat for use of his brother and his family members and another (third) flat for use by his sister and her family members. The complainant also agreed to purchase one commercial space measuring about 500 sq.ft. as he runs travelling business for his livelihood.  The total consideration of three flats stands to Rs.70,00,000/- and Rs.30,00,000/- for the said commercial space.  The complainant and the developer entered into agreement for sale on 08.02.2016.  The complainant paid Rs.1,00,000/- as earnest money for the flats as well as commercial space.  The total advance/earnest money the complainant has paid against the subject flats and the said commercial space is Rs.67,00,000/- on several dates.   The developer promised the complainant to deliver possession and execute  deed of conveyance in respect of the flats within 18 months from the date of execution of Agreement for Sale i.e. by July 2017.  The developer demanded further consideration money amounting to Rs.2,00,000/- due to escalation of market value.   The developer threatened the complainant that if he does not agree to pay then he will neither give possession nor register the subject flats in favour of him under any circumstances.  To avoid legal proceedings, the complainant agreed to pay Rs.2,00,000/-  to the developer on account of escalation of market price with one condition by executing supplementary Agreement for Sale in respect of subject flats.  In spite of expiry of 18 months, the developer neither gave possession of the flats to the complainant nor executed the supplementary agreement for sale for modification of total consideration money.  On 23.02.2018, the developer sent advocate notice to the complainant asking for payment of balance consideration money of the flats where he added escalated price of Rs.2,00,000/- on the total consideration money of the flats i.e. Rs.72,00,000/- within 15 days. The complainant replied the same through Advocate and asked the developer to execute supplementary deed of conveyance. Instead of preparing Supplementary Agreement for Sale, the developer sent another letter through Advocate claiming additional Rs.20,00,000/- with an excuse of typographical error on his letter dated 23.02.2018.  The developer further asked the complainant to pay balance consideration within 15 days. The complainant met personally to the developer and tried to convince him not demand additional consideration money rather to accept Rs.2,00,000/- on account of escalation of market price but the developer being stick with his demand of Rs.22,00,000/- over the total consideration money of the flat.  As per demand of Developer , the total consideration price of the flat stands to Rs.92,00,000/-.  Hence, the complainant filed complaint before the State Commission.

5.         Vide Order dated 04.02.2019, the State Commission passed the ex-parte order with the following directions:

“i.  The Opposite Party No.1 is directed to deliver Letter of Possession in favour of complainant within 60 days from date after obtaining Completion Certificate subject to payment of balance amount of Rs.48,00,000/-;

ii. The Opposite Party Nos. 1 & 2 are directed to execute and register the Deed of Conveyance in favour of complainant within 90 days from date;

iii. The Opposite Party No.1 is directed to pay compensation in the form of simple interest @ 8% p.a. from the committed date of possession i.e. from 08.08.2017 till the date of delivery of possession;

iv. The Opposite Party No.1 is directed to pay Rs.10,000/- as cost of litigation to the complainant;

v.  The balance amount payable by the complainant shall be adjusted by OP No.1 out of the compensation payable to them in terms of this order.”

6.         Appellant has challenged the Order dated 04.02.2019 of the State Commission mainly/inter alia on following grounds:

i)         The State Commission failed to appreciate that the service of notice on a defective complaint, wherein the address of the Appellant was incomplete, cannot be deemed to be a complete service and hence the State Commission erred in recording in its order dated 06.09.2018 that the Appellant has been duly served. 

ii)        The State Commission failed to appreciate the Respondent-1 filed amended complaint only on 24.12.2018 and therefore, notice of the amended complaint ought to have been issued to the Appellant as amended complaint has to be treated as a fresh complaint which gives right to the Appellant who was opposite party to file written version to the same.  The State Commission, therefore, erred in not issuing notice on the amended complaint to the Appellant, who was OP before the State Commission and erroneously proceeded to decide the complaint without issuing notice to the same and without permitting the Appellant to file written version the amended complaint.

iii)       The State Commission  failed to appreciate that a fraud was committed by the Complainant/Respondent-1 herein , upon the State Commission by placing incomplete address of the Appellant for the purpose of service of notice of the complaint as per order dated 04.06.2018 resulting into an ex-parte order against the Appellant.  The State Commission failed to appreciate that a conjoint reading of the order dated 05.10.2018 and 24.12.2018 it will be apparent that the State Commission although proceeded ex-parte on 05.10.2018 against  the Appellant herein however till 24.12.2018 no amended copy of the complaint was filed by Respondent -1.  Hence, the Appellant did not get any opportunity to file his written version to the amended copy of the complaint as no notice was issued or served upon the Appellant in respect of the amended complaint and on 24.12.2018 itself the Respondent-1 filed his evidence on affidavit as well as brief note of argument and the complaint was fixed for ex-part hearing on 16.01.2019.

iv)       The State Commission failed to appreciate that Respondent-1 has not approached the State Commission with clean hands and has made false statements on oath for which the State Commission ought to have rejected the complaint outrightly.  The State Commission failed to appreciate that the complainant/Respondent-1 in the complaint made false statements with regard to payments made by him to the Appellant.  As a matter of fact, the Respondent-1 never intended to complete the sale transaction within the time prescribed by paying the balance consideration and therefore the Appellant was never at fault. 

v)        The State Commission erred in recording that the Rspondent-1 has paid only Rs.22,00,000/- towards the total consideration of the three flats namely Rs.70,00,000/- without any evidence.  The said conclusion arrived at by the State Commission is absolutely perverse as the case of Respondent-1 was not that he has paid Rs.22,00,000/- as part considertion as will be evident from the fact that in the complaint at para 4 and 5 the Respondent-1 alleged that he has paid a sum of Rs.37,00,000/- as advance/consideration money towards the said three flats.  Hence, the impugned order passed by the State Commission is wholly perverse and illegal and is liable to be set aside.

vi)       The Respondent No.1 with the malafide intention alleged in the complaint that he has paid a sum of Rs.67,00,000/- towards the three flats and commercial space against a total consideration on Rs.1,00,00,000/- without producing any evidence namely, money receipts in support of such contention. The State Commission failed to appreciate that the Appellants were not under any obligation to either deliver the possession of the flat or execute the deed of conveyance unless the entire amount towards consideration of the property is paid, in the present case the properties in issue, and therefore, the Appellant due to non-receipt of the balance consideration for the three flats in issue could not complete the construction on time and since time is the essence of the contract, it is obligatory on both the parties to strictly adhere to the time frame both for the payment of consideration and for construction of the premises. The State Commission erred in deciding the Complaint filed by the Respondent No. 1 only on the basis of the Agreement to sale with respect to the properties in issue without establishing the proper fact with regard to the payments made by the Respondent no. 1 to the Appellant.

vii) The State Commission did not consider the matter in its proper perspective and committed a grave error in passing the impugned Order. The State Commission passed the impugned order in complete disregard to the provisions of the Consumer Protection Act. The State Commission has failed to exercise a jurisdiction so vested and passed the impugned order without application of its judicial mind and in total contravention to the provisions of Consumer Protection Act. The impugned order against which the Appeal has been filed is bad in law and cannot be sustained.

7.         Heard counsel for the Appellant and Respondent-1.  Contentions/pleas of the parties, on various issues raised in the FA, based on their FA/Reply, Written Arguments, and Oral Arguments advanced during the hearing, are summed up below.

1. 1 In addition to the grounds under (para 6) the Appellant contended that the Appellant is the developer of a land situated at Premises No. 92/1, Dr. Daudar Rahman Road, P.S. Charu Market, Kolkata. The Respondent-2  is the owner of the said premises. Respondent-1 having acquired the information with regard to development of a multi-story building at the said premises, approached the Appellant and agreed to purchase three residential flats, which were to be constructed at the said premises. Accordingly on 08.02.2016, the Respondent-1 and the Appellant entered into an agreement for sale of three flats and the consolidated price of the three flats booked by the Respondent- 1 was agreed at Rs.70,00,000/-.  At the time of execution of the said agreement for sale Respondent-1  had paid Rs.1,00,000/- as earnest money out of total consolidated agreed consideration money of Rs.70,00,000/- for purchase of aforesaid three flats. Respondent-1 had agreed to pay a sum of Rs. 10,00,000/- as the earnest money as per the agreement for sale but the Respondent - 1 paid only a sum of Rs. 1,00,000/- as the earnest money for which due receipt was issued by the Appellant. Thereafter, Respondent-1 also booked a Commercial Space admeasuring 500 Sq. Ft in the ground floor of the said premises for a total consideration of Rs.30,00,000/-. Respondent no. 1 paid amounts in cash to the Appellant and till 10/10/2016 the Appellant received a total consolidated sum of Rs. 34,00,000/- from Respondent-1 for the three Residential Units and one Commercial unit booked by him. Apart from that, the Respondent-1 also paid Rs. 2,00,000/- vide cheque no. "000067" drawn on Bank of Baroda. The said cheque drawn on Bank of Baroda bounced against which the Respondent-1 paid the said amount of Rs. 2,00,000/- in cash on 13/10/2016. Respondent-1 also paid another cheque no. 000064 drawn on Bank of Baroda, Bhawanipur Branch for a sum of Rs. 3,00,000/-, which was also bounced but the Respondent-1 did not pay the said amount. Thereafter, the Respondent-1 paid a sum of Rs.9,00,000/- in cash to the Appellant on 6/5/2017. Thus till 6/5/2017 the Appellant has received in all a consolidated sum of Rs. 45,00,000/- (i.e. 34,00,000/- + 2,00,000/- + 9,00,000/-) for the three Residential Units and one Commercial unit booked by Respondent-1. Accordingly, the Respondent-1 requested the Appellant to adjust the amount of     Rs.30,00,000/- towards the Commercial Unit at the ground floor of the premises as completely paid and requested for execution of the deed of conveyance with regard to the commercial unit. Respondent-1 also requested to keep the balance amount of Rs.15,00,000/- (i.e. Rs.45,00,000/- minus (-) Rs. 30,00,000/-) towards the consolidated payment of amount towards the three Residential Units booked by him in the said premises. Accordingly, after adjusting the payment of Rs.30,00,000/-, the Appellant executed a deed of conveyance in favour of the Respondent-1 for the commercial unit booked by him at the ground floor of the premises. After 06.05.2017, Respondent-1 did not pay any further amount towards the said three residential units. However, Respondent-1 was required to make the complete payment for the said three residential units upto 17.04.2016 but the Respondent-1 defaulted in all his payment schedules and paid only a sum of Rs.8,00,000/- till 06.05.2017 out of Rs.70,00,000/- for the three residential units thus hampering the complete construction schedule.  It is further contended that if the Respondent-1 had adhered to the payment schedules and made timely payment as per the agreement for sale dated 08.02.2016, the Appellant would have delivered the residential units to the Respondent-1 on or about August 2017. It is also contended that the Respondent-1 failed to make the payment within time, he agreed to increase the value of the three flats to Rs.90,00,000/- and agreed to enter into a supplementary agreement. Acknowledging the same the Respondent - 1 has issued a statement on 06.05.2017. Respondent-1 has deliberately concealed the said fact from the State Commission. The Appellant could not continue the work since the construction was directly linked to the payment made by the Respondent-1. It is also contended that despite several verbal request for payment towards the three residential flats, the Respondent-1 did not make any further payment. Hence, the Appellant thereafter issued a legal notice dated 23.02.2018 demanding the balance payment from the Respondent-1 for completing the construction in the said premises and in case the Respondent-1 fails to pay the demanded amount the Appellant will be constrained to cancel the agreement for sale. In response to the said legal notice the Respondent-1 sent a reply dated 15.03.2018 through his Advocate wherein he admitted the fact of entering into a supplementary agreement. Thereafter, the Appellant sent reply dated 27.03.2018 to Respondent-1 in response to his reply dated 15.03.2018 to legal notice, wherein the Appellant contended that the Respondent-1 despite agreeing to enter into a supplementary agreement and pay the revised rate of Rs.90,00,000/- for the said three flats, neither entered into the said supplementary agreement nor paid the balance amount towards the consideration of the three flats. Respondent-1 thereafter sent a letter through his advocate without making any statement with regard to the contention raised by the Appellant and without making any further payment to the Appellant. Respondent-1 instead of entering into the supplementary agreement and paying the balance amount towards consideration of the three flats filed a Consumer Complaint on 28.05.2018 before the State Commission as CC/369/2018. It is further contended that Respondent-1 filed the complaint without furnishing the full address of the Appellant herein, whereas he was fully aware of the address of the Appellant at the time of the institution of the complaint. The matter was listed for admission hearing on 04.06.2018. The State Commission Issued the notice to the incomplete address of the Appellant. In the meantime the Respondent-1 filed an interim application being IA/631/2018 for amending the cause title of the Complainant as the address given in the original Complaint of Appellant was incomplete. That the said application was listed for hearing on 26.06.2018 and the State Commission allowed the said application being IA/631/2018 and directed the Respondent-1 to file amended version of complaint and fixed for 06.09.2018.  Although the Respondent-1 filed the said application giving the fresh address of the Appellant herein but did not file the amended version of the petition of complaint. On  06.09.2018, the State Commission recorded that "Both the O.Ps. have been duly served. S/R is thus complete" and fixed the matter for 05.10.2018. It is also contended that  although the direction was issued upon the Appellant for filing of the Written Version but till such date no amended Complaint was filed by the Respondent-1, as is evident from the order dated 06.09.2018, whereby the State Commission fixed the matter for 05.10.2018 and directed the Respondent- 1 for filing amended version of the petition of complaint. On 05.10.2018, the State Commission closed the right of the OPs for filing of the written version. From a bare reading of the Consumer Complaint it will appear that the Respondent-1 had given incomplete address of the Appellant and till 05.10.2018 has not filed the Amended Complaint and order dated  24.12.2018 by the State Commission it is apparent that the Respondent-1filed it's Amended Complaint containing the complete address of the Appellant on 24.12.2018. On the said date Respondent-1 also filed it's Evidence by way of affidavit and the State Commission proceeded ex-parte against the Opposite Parties. Evidence by way of affidavit filed by the Respondent -1.  It is also contended that a conjoint reading of the order dated 05.10.2018 and 24.12.2018, it will be apparent that the State Commission although proceeded ex-parte on 05.10.2018 against the Appellant herein, however, till 24.12.2018, no amended copy of the Complaint was filed by the Respondent-1, hence, the Appellant did not get any opportunity to file his written version to the amended copy of the complaint as no notice was issued or served upon the Appellant in respect of the amended Complaint and on 24.12.2018 itself the Respondent-1 filed his evidence on affidavit as well as brief note of argument and the complaint was fixed for ex-parte hearing on 16.01.2019. It is also contended that Respondent-1 is an investor in properties and therefore, he booked the aforementioned three flats but also booked the commercial space for monetary gains. Although the price of the flats and the commercial space was much higher as per the prevailing market value of the property, the Appellant on the condition that the Respondent-1 shall strictly follow the payment schedule agreed to sell the aforesaid flats and commercial space at much lesser price. The said Complaint Case was thereafter heard by the State Commission and judgement was passed on 04.02.2019. 

1. 2 On the other hand it is contended by Respondent-1 states that his family comprises of his wife, son, one widow sister, one married sister along with her husband and two daughters, one brother and his wife and children. The Respondent-1 was searching for big accommodation or 3 flats so that all of them stay together which is their family culture and therefore, contacted the OP-1/Appellant herein for availability of flats. The Respondent/1 and the Appellant entered into Agreement for sale dated 8th February, 2016 in respect of subject flats. The total consideration of three flats stands to Rs.70,00,000/-. The appellant and Respondent-1 also entered into an agreement for sale in respect of one commercial space for running a traveling business for his livelihood. The value of the said commercial space is Rs.30 Lakhs. It is further contended that the total advance money, the Respondnt-1 paid to the Appellant is Rs.52 Lakhs,out of which the Appellant has adjusted Rs.30 Lac towards one commercial shop and registration of Deed of Conveyance in respect of the said commercial space without delivery of possession and for same, Respondent-1 has already filed one case before State Commission being CC/199/2019. Therefore, balance Rs.22 Lakhs is with the appellant as advance money in respect of the subject flats. Now, as per agreement for sale the developer/ appellant is under obligation to deliver the subject flats within 18 months from the date of agreement i.e. August, 2017 in terms of agreement for sale.  It is further contended that the developer/appellant failed to complete the construction of the subject flat within stipulated period and also failed to provide Completion Certificate. The Respondent-1 was in doubt that whether the Appellant will be able to complete the construction within the stipulated period and therefore did not pay further money. The complainant/ Respondent-1 paid entire consideration money of Rs.30 Lac to the appellant in respect of the shop room but till date he failed to deliver possession. Suddenly, the appellant has illegally demanded for further consideration money amounting to Rs.2,00,000/- due to alleged escalation of market value, to which Respondent-1 did not agree being illegal demand of the appellant and asked him to give him possession and execute deed of conveyance in respect of the subject flats. On counter the appellant threatened the respondent no. 1 that if he does not agree to pay then he will neither give possession neither register the subject flats in favour of him under any circumstances. To avoid legal proceedings,  the respondent-1 agreed to pay Rs.2,00,000/- to the appellant on account of escalation of market price with one condition by executing supplementary Agreement for Sale in respect of subject flats. In spite of expiry of 18 months the appellant neither gave possession to the Respondent-1 in respect of the subject flats nor executed the supplementary agreement for sale for modification of total consideration money. The Respondent-1 had requested several times but the appellant did not heed to pay attention of the Respondent’s  request. On 23.02.2018, suddenly the appellant sent one advocate notice illegally asking for payment of balance consideration money of the subject flats where he added escalated price of Rs.2,00,000/- on the total consideration money of the subject flats i.e. Rs.72,00,000/-. The respondent no. 1 replied through his Advocate and further asked the appellant to execute Supplementary Deed of Conveyance. Instead of preparing Supplementary Agreement for Sale, the appellant sent another letter dated 27.03.2018  through his legal agent namely claiming additional Rs.20,00,000/- instead of Rs.2,00,000/- with an excuse of typographical error on his letter dated 23.02.2018. The appellant further asked the respondent no. 1 to pay balance consideration within 15 days. The respondent no. 1 personally met the appellant and tried to convince him not demand additional consideration money whimsically rather to accept Rs.2,00,000/- on account of escalation of market price as demanded by the appellant earlier but the appellant was not ready to listen the respondent no. 1's request and stick with his demand of Rs.22,00,000/- over the total consideration money of the subject flat. Therefore, as per illegal demand of the Appellant, the total consideration price of the subject flats stands to Rs.92,00,000/-. The respondent no. 1 further sent one advocate notice on 02.04.2018 to the appellant but the appellant did not reply or contacted him anymore. Therefore, there is no agreement between the appellant and the respondent no. 1/ complainant in respect of illegal demand of extra money by the appellant for the subject flats. Finding no other alternatives, the respondent no. 1/ complainant filed consumer case being no. CC/369/2018 before State Commission. The Appellant has come before this Commission on the grounds that Summon has not been served on the appellant. Dispute in respect of total advance money paid towards subject flats and advance money has not been paid as per schedule Enhancement of Consideration money and the Complainant/ Respondent no. 1 is an investor.   In respect of summon service the Appellant has contended that after admission of the said consumer case, it appears that due to typographical mistake, the address of the appellant was incomplete and obviously without complete address no summon can be sent. The complainant/ respondent no. 1 filed on Interlocutory application being no. IA/631/2018 and accordingly vide order dated 26.06.2018 the State Commission has inserted the full address of the appellant on the original complaint and simultaneously directed the respondent no. 1 to file one amended complaint before the State Commission office in the meantime. Thereafter the State Commission has sent summon to the Appellant and the appellant has received the same on 11.07.2019.  Now, the appellant has alleged that he has not been served with copy of amended complaint. It is further contended by respondent no. 1 that amended complaint bears insertion of full address for the perusal of the State Commission but State Commission has already inserted the full address of the appellant on the original complaint. For the sake of argument, if the appellant did not receive amended complaint, then how the appellant has filed true copy of Amended Complaint and IA being no. IA/631/2018 with this Appeal Petition and same is not a certified copy. It is crystal clear that the appellant did not appear in the consumer case intentionally inspite of getting notice and amended complaint and therefore there is no scope of making new submission/defence in appeal petition. In response to the ground that in respect of payment of advance/earnest money - It is contended that it is an admitted position that till 10.10.2016 Rs.34,00,000/- has been received by the appellant/ developer. Again Rs.4,00,000/- was paid by the respondent no. 1 to the appellant on 10.10.2016. The respondent no. 1 further paid Rs.2,00,000/- to the Appellant/ developer vide cheque but same was dishonoured and the respondent no. 1 immediately paid Rs.2,00,000 in cash on 12.11.2016. Again Rs.3,00,000/- vide cheque no. 000064 drawn on Bank of Baroda, Bhawanipore branch as acknowledged by the appellant/ developer. The appellant has alleged that cheque of Rs.3,00,000/-  was dishonoured. Such statement is false and denied. In this regard, the respondent no. 1 contended that the appellant has failed to file any single document that the said cheque was dishonoured. If it is so, then obviously the appellant/ developer should have sent notice under Negotiable Instrument Act and/or demand notice. This statement of the appellant is false. On 06.05.2017 the respondent no. 1 has again paid Rs.9,00/,000- in, therefore, total advance money has been paid by the respondent no. 1 is Rs.52,00,000/-  to the appellant towards three flats and one commercial space. The respondent no. 1 states that this appellant has registered Deed of Conveyance in respect of the said commercial space and deducted Rs.30 Lac from the total advance money. Therefore, after deduction of Rs.30 Lac from the said total advance money of Rs.52,00,000/- (and balance Rs.22,00,000/- is with the appellant/ developer which is the advance money in respect of the three subject flats. It is further contended that in terms of agreement for sale, the total consideration money for three flats is Rs.70 Lakhs and there is no clause in the agreement for escalation of consideration money

of the three subject flats. Further, no supplementary agreement was executed and there is no scope of agreeing of escalated price. It is also contended that the flats were never completed within the stipulated period and/or the developer/ appellant endeavour to complete the construction work when the respondent no. 1/ complainant sent advocate letters dated 22.03.2019 and 09.03.2019 to the appellant/ developer intimating the final order of consumer case as well as ready and willing to deposit the balance consideration money after deducting the awarded money to the appellant's bank account but the appellant did not give his bank details. Respondent -1 relied upon following judgments (i)Narendra Pal Singh v. Meerut Development Authority cited in III (2002) CPJ 34: 2002 (2) CPR 7. (ii)Smt. Hardeep Kaur Chhetra v. Chandigarh Housing Board, cited in 2002 (3) CPJ 1: 2002 (1) cpr 201 (NC).(iii) Ghaziabad Development Authority v Vishnu Dutt Dimri cited in 2002(1) CPR 151 (NC) (iv) Lastly Fora cannot adjudicate on issue of liability to pay escalation charges as held in Yash Bir Jaggi v Unitech Ltd reported in IV (2006) CPJ 123; 2007 NCJ 160 (NC).It is further contended by Respondent-1 in respect of payment of non-payment of advance money in terms of agreement that respondent no. 1/ complainant paid Rs.52 Lac to the appellant/ developer in the year 2016 where this appellant adjusted Rs.30 Lac towards the commercial space before completion of project work. In spite of having Rs.22 Lac on account, the appellant/ developer did not complete the construction work of the subject flats. There was a genuine doubt upon the developer/ appellant that whether he would able to complete the construction work of the subject flats within the stipulated period. This respondent no. 1/ complainant requested the appellant that he will pay entire consideration money on the date of delivery of possession and registration of deed of conveyance with Completion Certificate but the appellant failed to do so.  For the sake of argument, the respondent no. 1/ complainant submitted that there is no clause for cancellation of agreement and the developer did not cancel the agreement till date and therefore there is no question of default on payment in advance money arise where the construction of subject flats are still incomplete till date. No completion certificate has been supplied by the appellant to the respondent no. 1. The appellant did not send any notice in this regard also. Respondent-1 further contended in respect of investment allegationthatrespondent no. 1/ complainant belongs to Islam religion and it is his tradition of his family to stay together and therefore he has booked three flats for his big family which the respondent no. 1 has already stated in the complaint as well as in the first paragraph of the written submission. Moreover, those three flats are residential flats and there is no scope for utilizing/ exploiting the same commercially. The respondent no. 1/ complainant has separately purchased one commercial space for his livelihood from this appellant/ developer. The allegation of investor is baseless. In this regard, the respondent no. 1 has relied upon the judgment of thisCommission in Kavita Ahuja v Shipra Estate Ltd & Jai Krishna Estate Developers Pvt. Ltd. where it has been held that contention to book three flats to have all family members stay together with their respective independence was accepted. If the complainant wanted her family members to stay in her vicinity, it cannot be said that flats were purchased for speculative purpose or for making profit by selling them later. It is not value of goods that matters but purpose for which the goods bought are put to. Held as bookings of three flats were not for commercial purpose, hence complainant was consumer as cited in I (2016) CPJ 31 (NC).It is again contended by the complainant that the opposite parties have received summon and did not contest the case by filing written version and therefore the testimony of the complainant remains unchallenged. It is well settled principle that non filing of written version by the opposite parties shall be deemed to be accepting the allegations and facts stated in the complaint. The complainant contends that he is always ready and willing to pay the balance consideration money to the developer in respect of the subject flats but he is not willing to pay escalation price as illegally demanded by the developer which is also falls under the definition of unfair trade practice as well as deficiency of service. It is also submitted that the stay order passed by this Commission was vacated due to non-compliance of direction therefore the State Commission below proceed the execution case and through court machinery the respondent no. 1 had got possession in respect of the subject flat and prayed this Commission to dismiss the instant appeal.

8.         We have carefully gone through the orders of the State Commission, other relevant records and rival contentions of the parties.  As regards contentions of the Appellant about the maintainability, we are in agreement with the observations and findings of the State Commission that the flats in question were not purchased by the Respondent-1 herein for any commercial purpose but for his self use and use of his family members, hence, the complaint is maintainable. 

9.         There is no dispute as regards the consideration for three flats in accordance with the Agreement for sale dated 08.02.2016, which is for Rs.70,00,000/-.  The commercial space was sold for another Rs.30 lakhs.  The issue pertaining to commercial space is not in dispute in the present case.  As regards enhancement of price, there is no supplementary agreement or any other evidence to show that the parties have agreed for enhancement of the consideration by Rs.20.00 Lakhs as claimed by the Appellant herein.  The Respondent-1 admits that under pressure, he agreed for paying an enhanced amount of Rs.2.00 lakhs towards escalation of the market price. While the Complainant in his complaint claims that he has paid in total an amount of Rs.67.00 lakhs, out of which, Rs. 30.00 Lakhs was adjusted towards commercial space, hence amount paid towards the three units was Rs.37.00 Lakhs,  the Appellant claims that the Respondent-1 paid only Rs.45.00 Lakhs, out of which Rs.30.00 Lakhs was adjusted towards the commercial space and hence only balance Rs.15.00 Lakhs remains paid towards the three flats. However, both sides have failed to place on record any cogent and reliable evidence to establish the total payments as claimed by them. The State Commission in its order has taken the total amount paid by the complainant as Rs.52.00 lakhs, out of which 30 lakhs was adjusted towards commercial space and hence only Rs.22.00 Lakh stood paid as part consideration amount towards the three units against the total consideration amount of Rs.70.00 Lakh.  Hence, the State Commission has passed its order to deliver the possession and execute the sale deed on receipt of balance amount of Rs.48.00 lakhs.  The extract of relevant paras of the State Commission’s order are reproduced below:

“The Agreement for Sale dated 08.02.2016 postulates that the complainant in order to purchase three flats being Flat No.5C measuring about 1120 sq. ft. super built up area on the 5^th floor, Flat No.5E measuring about 1200 sq. ft. super built up area on the 5th floor and flat No.3B measuring about 800 sq. super built up area on the 3rd floor aggregating 3120 sq. ft. had entered into an Agreement for Sale with the developer at a total consideration of Rs.70,00,000/-. The money receipts available on the record speak that till now the complainant has paid Rs.52,00,000/- in favour of the developer. However, the complainant also agreed to purchase one commercial space valued of Rs.30,00,000/-. The said commercial space is not a subject matter of consideration in this case. Therefore, if from the payment of Rs.52,00,000/-, a sum of Rs.30,00,000/- i.e. the value of commercial space be excluded, the complainant has paid only Rs.22,00,000/- as part consideration amount towards the total consideration amount of Rs.70,00,000/-.

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On evaluation of materials on record, it transpires that the complainant being 'consumer' as defined in Section 2(1)(d) of the Act, hired the services of OP No.1 on consideration and OP No.1 has failed to fulfil their part of obligations as per Agreement and thereby deficient in rendering services towards the complainant within the meaning of Section 2(1)(g) read with Section 2(1)(o) of the Act. Therefore, the complainant is entitled to some reliefs. In our view, direction upon the OP No.1 to deliver possession and to execute the Sale Deed within 60 days from the date of communication of the order on receipt of balance amount of Rs.48,00,000/- will meet the ends of justice. Despite payment of a part amount, when the complainant has been deprived from having a roof of their own over their head, certainly it has caused tremendous mental agony and harassment for which they are entitled to compensation and considering the loss suffered by them, we assess the compensation in the form of simple interest @ 8% p.a. from committed date of possession i.e. from 08.08.2017 till the date of delivery of possession. Under compelling circumstances, the complainant has to approached this Commission and, therefore, complainant is entitled to litigation cost which we quantify at Rs. 10,000/-.

With the above discussion, we dispose of the complaint ex-parte with the following directions-

1. The Opposite Party No.1 is directed to deliver Letter of Possession in favour of complainant within 60 days from date after obtaining Completion Certificate subject to payment of balance amount of Rs.48,00,000/-;

2. The Opposite Party Nos. 1 & 2 are directed to execute and register the Deed of Conveyance in favour of complainant within 90 days from date;

3. The Opposite Party No.1 is directed to pay compensation in the form of simple interest @ 8% p.a. from the committed date of possession i.e. from 08.08.2017 till the date of delivery of possession.

4. The Opposite Party No.1 is directed to pay Rs.10,000/-  as cost of litigation to the complainant.

5. The balance amount payable by the complainant shall be adjusted by OP No. 1 out of the compensation payable to them in terms of this order.”

10.   The order of the State Commission has not been challenged by the Respondent-1(Complainant) herein and hence this has become final as against Respondent-1 herein.  After careful consideration of the entire facts and circumstances of the case, we see no merit in the contention of the Appellant.  The State Commission has given a well-reasoned order and we find no reason to interfere with its findings.   There is no evidence on record to establish that Respondent-1 paid only Rs.37.00 Lakhs as claimed by the Appellant,  hence, the order of the State Commission is upheld.  Accordingly, the First Appeal is dismissed.

11.  The pending IAs in the case, if any, also stand disposed off.