FINAL ORDER/JUDGEMENT

Smt. SAHANA AHMED BASU, Member,

The case of the Complainant, in a nutshell, is that, the Complainant has entered into an Agreement for Sale with the OP1 on 02/05/2014 for purchasing one self-contained residential flat measuring about 1030 sq.ft super built-up area a little more or less situated at the 2^nd Floor (south facing) consisting of 2 bedrooms, 1 drawing cum dining room, 1 kitchen, 2 toilets and 2 W.C. with marble flooring along with 1 car parking space measuring about 120 sq.ft lying and situated at premises no. 81A, R.K. Chatterjee Road, P.S. – Kasba, Kolkata-700042. District – 24 Parganas (south) for a total consideration amount of Rs.35,73,088/-. The Complainant paid Rs.7,00,000/- in cash to the OP1 before and at the time of execution of Agreement for Sale for which the OP1 did not provide any money receipt till date to the Complainant.Being allured by the sentimental words of the OP1 the Complainant has paid an amount of Rs.29,92,000/- to the OP1 by several cheques and cash and accordingly the OP1 issued several money receipts. It was agreed between the parties that OP1 shall deliver the possession of the flat and car parking space in question and also will register the same in favour of the Complainant within 18 months from date of the execution of Agreement for Sale i.e. within 02/05/2015. But after 02/05/2015 the OP1 started to make false assurance to the Complainant about the completion of the flat and car parking space in question and in this process several years lapsed but the OP1 failed to complete the construction work of the said flat and car parking space as per the terms and conditions of the Agreement for Sale and also failed to execute deed of conveyance in favour of the Complainant within stipulated period. After the death of Smt. Chabi Basu i.e. the mother of the OP2 another Development Agreement was executed between the OP1 & OP2.  Which was registered on 31/08/2017 wherein the OP1 represented himself as the Director of M/S ARV Abasan Pvt. Ltd. and all the money receipts which are issued by the OP1 are in the name of ARV Abasan Pvt. Ltd.whereas the OP1 put his signature. Thereafter the OP1 gave the possession of the flat and car parking space to the Complainant on 20/10/2016 in an inhabitable condition without any possession letter. The OP1 assured the Complainant that he will complete the incomplete work of the building and the flats per sanction plan and also will register the same in favour of the complainant and handover the Completion Certificate after obtaining it from the KMC. But that is not happened then the Complainant has compelled to do the incomplete work from her pocket with the assurance on the part of the OP1 that those amount will be adjusted from the remaining consideration amount and accordingly the Complainant bore a sum of Rs.2,23,194/- to make the flat in an habitable and living condition and also a sum of Rs.1,59,000/- was spent by the Complainant for damp treatment and other damage repair. When the Complainant started to live in the said flat it is noticed that the OP1did not complete the roof and even did not bother to fix a gate in front of the roof. Further when the Complainant sold her car the OP2 rented the Complainant’s car parking space. On protest the OP2 told the Complainant as the flat and car parking space is still not yet been registered in Complainant’s name that’s why the Complainant has no right to tell anything. During lockdown period the Complainant is not in the said flat and when she came back she found that door lock of her flat was broken and as such she lodged a GD in the Kasba P.S. OP2 also has filed case u/s 144 CrPC and by which the OP2 is not allowing the complainant to enter into her own flat. Finding no other option the Complainant moved an application before the Ld. ACJM, Alipore u/s 156(3) CrPC against the OPs 1 & 2. Thereafter the Complainant sent a legal notice dated 06/09/2021 to the OPswith the request to amicably settle the matter. But the OPs are remained unturned. Therefore the Complainant knocked the door of this Commission praying for relief/reliefs.

Upon service notice Ld. Advocate for the OP1 appeared by filing voka. But WV was not filed for the OP1 within stipulated period. OP2 did not contest the consumer complaint despite service of notice. No WV has been filed by the OP2 within the statutory period. Thus, the case runs ex parte hearing against the OP 1 & OP2.

In support of his case the complainant has tendered evidence supported by an affidavit and also relied upon documents annexed with the complaint petition. We have heard argument on merit and have also perused the record.

Evidently, the Complainant had purchase a flat measuring about 1030 sq.ft  along with a car parking space measuring 120 sq.ft by paying Rs.29,92,000/- to the OP1 out of total consideration amount of Rs.35,73,088/-. An Agreement for Salewas executed between the parties on 2/05/2014 . Ld. Advocate for the complainant alleged that as per the Agreement for Sale the possession of the said flat was to be handed over within 18 months. Clause 27 of the said Agreement support this contention. Ld. Advocate for the Complainant alleged that the OP1 failed to fulfil the commitment and at last the said flat handed over to the Complainant in inhabitable condition without Possession Letter. Therefore the Complainant faced problems andbore a sum of Rs.2,23,194/- to make the flat in an habitable and living condition and also a sum of Rs.1,59,000/- was spent by the Complainant for damp treatment and other damage repair. In this regardphotocopies of money bills issued by the OP1 are furnished by the Complainant. It is also alleged by the Ld. Advocate for the Complainant that the OP1 is neglected to register the flat in favour of the Complainant and also did not provide the Completion Certificate to the Complainant. Photocopy of Legal Notice sent by the Complainant to the OPs reveals that the complainant made sincere efforts to get the said service.

Another allegation is made by the Ld. Advocate for the Complainant that the OP2 had illegally occupied the allocated car parking space of the Complainant and installed a collapsible gate in the 1^st Floor of the building during the Lockdown which is preventing the Complainant to enter her own flat. But in this regard no documentary evidence is adduced by the Complainant.

            It is true that that no WV has been filed by the OPs though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OPs tantamount to admission of the allegations stated in the complaint petition.

In view of the above facts it is observed by us that, the incident is very unfortunate that OP1 has miserably failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the utter negligence on the part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OP1 is proved and the complainant is entitled to get relief/ reliefs.

 Based on the above discussion we disposed of the consumer case in the following terms:-

1. OP1 & OP2 are directed to execute and register the flat and car parking space in favour of the Complainant within 04 weeks from the date of passing of this order failing which OP1 shall refund the deposited amount of Rs.29,92,000/- and Rs.2,23,194/- for incomplete work and Rs.1,59,000/- for damage repair incurred by the complainant with interest @ 8% p.a. from the date of the order till its realization  within stipulated period.
2. Till then OPs are restrained by this order to create any third party interest.
3. OP1 is directed to hand over the Completion Certificate in question to the Complainant and also provide the Possession Letter in favour of the Complainant.
4. The OP1 is also directed to pay an amount of Rs.10,000/- as litigation cost and 25000/- as compensation for mental agony harassment to the Complainant.
5. The instant Consumer Complaint is thus allowed on ex parte against the OP1 and OP2.
6. Abovementioned orders are to be complied with by the OPs within the specified period. If the OPs transgress comply the order within the said period, the Complainant shall be at liberty to put the matter into execution as per Law.

Copy of the judgement be supplied to the parties as per rules. Judgement be uploaded on the website of this Commission forthwith for perusal of the parties.