HON’BLE JUSTICE ISHAN CHANDRA DAS, PRESIDENT

       This is an application under section 17(1)(a)(i) of the Consumer Protection Act where the complainant prayed for direction upon the OP to accept the dues of consideration, if any and to provide the completion certificate of the unit/premises in question and to execute and register the deed of conveyance in respect of the same in favour of the complainant and to direct the OP to pay compensation to the tune of Rs. 6,00,000/- (Rupees six lakh) for harassment to the complainant and to pay a sum of Rs. 50,000/- (Rupees fifty thousand) towards litigation cost and other consequential reliefs.

       Briefly stated, the case of the complainant was that the complainant entered into an agreement dated 28-01-2009 with the OP for purchasing a flat supposed to be developed by the OP and in response to the request of the complainant the OP allotted B-03-0014 house/bungalow as per their sanctioned plan supposed to be constructed and as per agreement the basic price of the house/bungalow was Rs. 42,25,338/- (Rupees forty two lakh twenty five thousand three hundred thirty eight) and the date of possession was fixed in July, 2010. Subsequently the area of the unit was increased to 1931 sq. ft. from 1840.64 sq.ft. and the basic price was increased to Rs. 43,87,457/- (Rupees forty three lakh eighty seven thousand four hundred fifty seven) and as per agreement the OP was to hand over possession of the unit within 30 days from the date of payment of outstanding amount as per clauses 5.3 and 5.4 of the agreement but the OP/Company did not complete the construction work for handing over possession to the complainant for which the complainant made correspondence with the OP but did not get any response and finding no other way the complainant had to take recourse of this Commission and prayed for reliefs in terms of her application, as stated earlier.

       The OP filed a written version to contest the complaint case and contended that the complaint case was not maintainable and it was bad for non-joinder of necessary parties. Denying the cause of action, as stated in the petition of complaint, the OP declined to accept the complainant as ‘consumer’ within the meaning of section 2(1)(d) of the Act and further denied that there was any consumer dispute or ‘deficiency in service’. In the written version the OP admitted that the complainant paid a sum of Rs. 49,67,646/- (Rupees forty nine lakh sixty seven thousand six hundred forty six) to the OP but by a letter dated 09-09-2009 the OP asked the complainant to make payment of a sum of Rs. 2,32,783/- (Rupees two lakh thirty two thousand seven hundred eighty three) as total dues against the principal amount related to possession and interest on delayed payment and informed the complainant that they had a plan to deliver possession of the said unit in the month of October, 2009. Thereafter the OP issued another letter of handing over possession on 21-10-2010 to the complainant stating that the actual physical possession was handed over within 30 days of submission of possession letter at the project site. Further denying and disputing the allegation as contained in the petition of complaint the OP demanded strict proof of the same and ultimately prayed for dismissal of the complaint case.

Admittedly the complainant entered into an agreement for purchasing a flat to be developed by the OP for a consideration of Rs. 42,25,338/- (Rupees forty two lakh twenty five thousand three hundred thirty eight) and the tentative date of possession was fixed in July, 2010 but due to increase of the unit from 1840.64 sq.ft. to 1931 sq. ft. the basic price was increased to  Rs. 43,87,457/- (Rupees forty three lakh eighty seven thousand four hundred fifty seven). The Annexure-3 (Statement of Accounts) tend to show that the OP received excessive amount of a sum of Rs. 97,785/- (Rupees ninety seven thousand seven hundred eighty five) which was to be refunded and the net consideration to the tune of Rs. 49,67,646/- (Rupees forty nine lakh sixty seven thousand six hundred forty six) were paid to the OP herein towards consideration of the unit to be handed over after 30 days from the date of payment as per terms of agreement in clause 5.4. Ld. Counsel for the complainant in course of hearing produced the copy of the letter dated 21-10-2010 (Annexure-5) and tried to impress that the OP undertook to give possession of the flat to the complainant within 30 days from the date of submission of the possession letter at the project site. Since the complainant paid excess amount and in the instant case this was not done which compelled the complainant to take recourse of this Commission claiming reliefs.

       Ld. Counsel for the OP in course of hearing with all fairness admitted that the complainant paid excess amount which was refunded by issuing an Account payee cheque in favour of the complainant on 19-10-2011. He also drew our attention to the completion certificate dated 18-06-2010 issued from the office of the Director, Statutory Planning Unit, KMDA (Annexure-A) and tried to impress that the OP is ready and willing to perform his part of contract and there is no hurdle in doing so at the earliest, provided the complainant is ready to take over possession upon execution of the deed of conveyance and her favour. Regard being had to the facts of the case since the complainant prayed for taking over possession of the flat upon execution and registration of the deed of conveyance in respect of the unit of the complainant and to receive completion certificate etc. and for other legal purpose she is entitled to have such reliefs. Hence we allow the complaint case being CC/115/2012, direct the OP to execute and register the deed of conveyance in favour of the complainant within 60days from the date of this order failing which the complainant shall be at liberty to get the deed executed through this Commission. The cost of registration shall be borne by the complainant. Considering the facts and circumstances of the case, we do not pass any order with regard to compensation and litigation cost, as prayed for.