Brief facts of the case:

 This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that the OPs are the developer in respect of the land situated at 30,K.R Sarani, P.O-Konnagar, P.S-Uttarpara Dist-Hooghly, Pin-712235.  They constructed G+3 storied building after executing the development agreement with the three joint land owners namely Smt. Chinmoyee Roy, wife of Sri Tarun Kumar Roy.

The OPs erected /constructed the said multistoried building upon the  said land to dispose off some flats to the intending purchaser for ownership basis and the petitioners have entered into an agreement for sale dated 19^th May, 2017 with the OPs   in respect of a self contained residential flat a measuring super built up area  about 650 sq. ft. a little more or less be the same containing two bed rooms one dining, one kitchen one balcony, two bathroom cum toilets on 3^rd floor at North West Corner situated at 30, K.R Sarani P.O-Konnagar, P.S-Uttarpara, Dist-Hooghly Pin-712235 under Mouza-Konnagar, Dag no.2325 L.R. Khatian No.2543 within the limit of Konnagar Municipality for a consideration amount of Rs.6,00,000/- only including registration expenses of Deed of conveyance together with undivided share of the common passage and proportionate share of the land on which the building constructed and the complainant has already paid Rs.5.50.000/- only out of total consideration value of the said flat of Rs.6,00,000/-.  According to the said agreement the time period for delivering the possession of the flat to the complainants has already been expired on 18.5.2018 but unfortunately the possession of the said flat has not yet delivered by the OPs.

The complainant has repeatedly requested the OPs verbally to hand over the complete vacant flat to them but unfortunately they were avoiding.  Later on 6^th August 2019 the OPs sent letter to the petitioners requesting them to give time period of two months to complete the said flat and handover the same.  Unfortunately on 5^th October, 2019 this time has already been expired but the ops did not contact with the complainants and also did not handover the said flat to them and the complainants finding no alternative way to get the possession of the flat or refund the money with interest and compensation sent a Lawyer’s notice.  In response of the said notice, the ops replied through an advocate on 24.1.2020 that they have given some false and vague information.

Complainant filed the complaint petition praying direction upon the opposite party to hand over the flat and to register the said flat and to pay a sum of Rs. 550000/- alongwith @18% interest for the harassment and to pass an ad-interim order to prevent the OP from creating a third party interest in respect of the flat so booked and to pay a sum of Rs.300000/- for causing mental and physical harassment.

Defense Case:-

The opposite party contests the case by filing written version denying inter-alia all the material allegations  leveled against him and states that the complainant due to his lackadaisical attitude and disinterest to purchase the said flat, falsely accusing the op time and again, this petition is just a sample exhibition of the same and even after preparing all documentation works and process and sanctioning of loans being at the verge of completion, the whole process was cancelled due to the satisfaction of the petitioner and fresh steps were taken for re-allotment of a separate flat, which happens  to be the subject matter of the instant petition and the OP did not ever receive the full consideration amount for the above mentioned flat from the complainant.  That even without the same, the OP was ready to handover the flat to the petitioner for their residential purposes.  But it was the petitioner who denied making full payment of total consideration amount and asked the op for separate arrangement of flat by bringing amendments to the agreement registered in between the parties, it is when the op asked for some time to acquire a suitable flat in accordance to the preference of the petitioner.  It is further fact that upon receiving verbal intimation from the complainants that they are not willing to go ahead with their purchase of the aforesaid property, asking for refund of the consideration amount they had made payment of, in the most notorious manner and by putting the OP at huge catastrophe, it is when the op, still out of good faith and by expressing his bona fide intentions informed them that he would have to look for a third party purchaser for the said flat to be sold, and the consideration money could then be refunded and the complainants had agreed to the aforesaid clause and agreed to wait and get back their full refund, but due to the fact that the op could not make arrangements of an alternative customer within short time, at par with the estimation of the complainants, the complainants have preferred to file this instant complaint against the op and the op received information of the fact of the initiation of a fresh civil litigation over the schedule property to the petitioners as soon he was made a party to the same.  It is submitted that the aforesaid litigation was preferred against one of the co-owners of the land situated at 30,K.R Sarani, P.O-Konnagar, PS-Uttarpara, Hooghly 712235 and in pursuant to the fact that the op has developed his project on that site, he has been made a party to that suit, which has resulted in putting his investment and efforts at stake.

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

           The O.Ps have filed a joint evidence on affidavit which reiterates  the averments of the written version.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite parties have filed separate written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides shall have to be taken into consideration for disposal of the instant proceeding.

           Heard argument at length. In course of argument ld. Lawyer gave emphasis on evidence and documents produced by the parties.

From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief?

DECISION WITH REASONS

Issue no.1:

    In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (7) of the Consumer Protection Act, 2019.The point is thus answered in the affirmative.  

Issue no.2:

                       Both the complainants and the opposite parties are residents/having their office addresses within the district of Hooghly and the claims do not exceed the pecuniary limit of this commission. This point is thus disposed of accordingly.

Issue nos. 3 & 4:

Both the issues are taken up simultaneously for the sake of convenience.

The specific case of the complainants is that the complainants in order to purchase a flat contacted with the O.P and entered into an agreement for sale with the O.P on 19/5/2017 the consideration amount for such flat was fixed at Rs. 6,00,000/ out of which 5,50,000/ had been paid by the complainant which is an admitted fact by the O.P.As per the sale agreement the time limit for delivery of possession was framed as one year which was expired on 18/5/18, but fact remained that one letter had been issued by the O.P( annexure “c”) requested the complainants to provide him some more time for completion of the said flat which was answered by the complainant vide letter dated 17/1/20(annexure “D”) where they have categorically stated that “ at last on 6/8/2019 ,you had served an intimation letter to my clients informing them that you will hand over the possession of the said flat within next two months otherwise you will repay in advance amount with interest and this time has also been expired on 5/10/19.Now, unfortunately ,you are avoiding my clients and not interested to hand over the said flat to them. Addition to that, on spot verification of the projected area, my clients have come to know that you have given possession of their proposed flat to a third party.The allegations against the O.P was answered by advocates letter dt 24/1/20  where a new story was made out but to substantiate the claim of O.P no scrap of paper was submitted before the commission. More so, in that letter the O.P has admitted the fact that the flat in question was handed over to a third party.

From the above discussion it is crystal clear that the flat in question has already been handed over to a third party though initially agreement for sale dt. 19/5/17 was executed by and between the complainants and the O.P.So, there is complete deficiency of service on the part of O.P. In the agreement for sale dt. 19/5/17 , under the clause it has clearly been mentioned that if the developer did not hand over possession within the stipulated period , it shall pay damages of 10% over the consideration money as agreed between the parties.

When the complainants hire the services of a builder, or a contractor , for the construction of said flat ,and the consideration was also made with regard to this, as per the Consumer Laws it is a Service and the inordinate delay in handling over possession of the said flat clearly amounts to deficiency of services.

Both the issues are thus disposed of.

hence

ordered

that the complaint case no. 31 of 2020 be and the same is decreed on contest against both the O.Ps.

The complainant do get refund of Rs. 5,50,000/ along with @9% interest from the date of inception of the instant complaint case from both the O.Ps within 45 days from date and the complainant do get Rs. 50,000/ as mental harassment and agony  and Rs. 10.000/ as litigation cost from both the O.Ps within 45 days from date.

In both the cases if the O.Ps fails to comply the award within the stipulated period, the complainant is at liberty to take recourse to law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

The Final Order will be available in the following website www.confonet.nic.in.