FINAL ORDER/JUDGEMENT
SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
The facts as stated in the complaint are that the OPs being the owners launched for construction of residential building at KMC Premises No. 9, Gora Chand Road, PS-Beniapukur, Kolkta-700014. Complainants booked a four BHK flat measuring of 1200 sq. ft. build up area equivalent to 1500 sq. ft. super build up area on the 3rd floor of the proposed G+4 storied building. An Agreement for Sale dated 12.03.2011 was executed between the complainants and OPs 1 to 4 and Md. Shafi, since deceeased. OPs 5 to 8 are the legal heirs of Md. Shafi. Basic price of the flat is Rs. 22,50,000/- (at the rate of Rs. 1,500/- per sq. ft.). Complainants have paid Rs. 2,50,000/- vide cheque No. 685047 dated 12.03.2011 draw on SBI, India Exchange Place Extension Branch, Kolkata to the owners of the land against money receipt. Complainants further paid Rs. 4,00,000/- on 20.03.2011, Rs. 4,00,000/- vide cheque No. 685048 dated 20.03.2011 , drawn on SBI, India Exchange Place Extension Branch, Kolkata- Rs. 2,00,000/- on 11.05.2011 and Rs. 7,50,000/- vide cheque No. 648673 dated 24.05.2016 drawn on SBI High Court, Samriddhi Bhawan Branch (total Rs. 20,00,000/-) to the land owners OPs against money receipts. In clause 07 of the Agreement for Sale dated 12.03.2011 promised date of possession is mentioned as August, 2011 with grace period of eight months. There is a further clause in the Agreement for Sale that in case of default of delivery of possession and execution of Deed of Conveyance of the subject flat, the OPs shall pay interest at the rate of 1 percent per month on the deposited amount with effect from September 2011. Dr. Quamruddin Ahmed and Dr. Shabbir Ahmed co owners of KMC Premises No. 9, Gora Chand Road, Kolkata-700014 sold their share to Md. Quddus Ali Molla (hereinafter OP-1) by executing two registered Deed of Conveyance both dated 25.07.2016. The OPs are not showing any interest to complete the construction and they engaged contractor Md. Nadeem Aktar, Md. Nasir Ali, Ahwar Jamil, Md. Shafi and Md. Hasan Imam to complete the construction of the said building and accordingly they executed Memorandum of Agreement dated 11.11.2016. Till date construction work is not progress. Due to unreasonable delay in delivery of the possession, complainants requested the OPs to complete the construction of the building including subject flat, handover possession and to execute and register Deed of Conveyance but the OPs did not honour the request. Complainants issued legal notice to the OPs but such notice is unattended.
In view of the gross deficiency in service and unfair trade practices of the OPs, the complainants have thus filed the present consumer complaint with the following prayer:-
“Allow the complaint and direct the OPs to complete the construction and to handover possession of the subject flat to the complainants and to execute and register the Deed of Conveyance.
Allow compensation of Rs. 10,80,000/- and litigation cost of Rs. 1,00,000/-.
Pass any other or further order which this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.”
The complaint is not resisted by the OPs and they did not come forward to file any WV within specified period as per CP Act, 2019 and as such the consumer case has proceeded ex parte against the OPs vide proceedings against 27.10.2021.
In support of their case, complainnt-1 Md. Kamran has tendered evidence through affidavit. We have considered the argument of the complainants and perused the materials available on record.
On perusal of the consumer complaint coupled with Agreement for Sale dated 12.03.2011, we find that the OPs being the owners launched for construction of residential building at KMC Premises No. 9, Gora Chand Road, PS-Beniapukur, Kolkata-700014 and the complainants booked 04 BHK flat measuring of 1200 sq. ft. build up area equivalent to 1500 sq. ft. super build area on the third floor of the proposed G+3 storied building. OPs 1 to 4 and Md. Shafi, since decesased father of OPs 5 to 8. Basic price of the flat is Rs. 22,50,000/- (at the rate of Rs. 1,500/- per sq. ft.). Money receipt goes to show that the complainants paid Rs. 20,00,000/- to the land owners/ OPs on different dates against cheques and by cash. In clause 07 of Agreement for Sale dated 12.03.2011 promised date of possession is mentioned as August 2011 with grace period of 08 months in default, the vendors/OPs shall pay interest at the rate of 1 percent per month on the deposited amount to the complainants with effect from September 2011. From the evidence on record, it emerges that Dr. Quamruddin Ahmed and Dr. Shabbir Ahmed co owners of the KMC premises No. 9, Gora Chand Road, PS-Beniapukur, Kolkata-700014 sold their share to Mr. Quddus Ali Mullah (hereinafter OP-1) by executing two registered Deed of Conveyance both dated 25.07.2016. The OPs are not showing any interest to complete construction and they engaged Md. Nadim Akhatar, Md. Nasir Ali, Anwar Jamil, Md Shaffi and Md. Hasan Imam to complete the construction of the said building and accordingly, they executed Memorandum of Agreement dated 11.11.2016 but till date construction work is not in progress. Complainants have alleged that till date the OPs did not complete the construction and also did not offer the subject flat to the complainants. Complainants have lost trust in OPs. Alleging deficiency in service and unfair trade practice on the part of the OPs have been proved. OPs failed to keep their promise in terms of the Agreement for Sale and failed to deliver possession of the subject flat after expiry more than 10 years. Even till date, OPs have not come up with plea that they have completed construction and obtained completion certificate from the KMC. It is pertinent that despite service of notice of complaint, OPs did not put appearance nor the OPs filed WV in response to the complaint. As the OPs have failed to controvert the allegations in the complaint by filing WV, the allegation in the complaint are deemed to have been correct. It is well settled that the allegations made in the complaint if not denied is deemed to be admitted as correct. Complainants in their affidavit did support the allegations made in the complaint. Therefore, it cannot be said that complainants have failed to prove the deficiency of service and unfair trade practice.
On evaluation of materials on record, it is quite evident that the complainants being “consumers” hired the service of the OPs in a disputed flat and the OPs have failed to keep their promise in handing over physical possession of the flat as per Agreement for Sale within the stippulated period and thereby deficiency in rendering services under the CP Act, 2019. In the premises, complainants are entitled to get reliefs.
In view of the above, consumer complaint is disposed off with following directions:
- OPs are directed to complete the construction of the subject flat and also handover physical possession to the complainants.
- OPs are directed to execute and register deed of conveyance in favour of the complainants in respect of the subject flat after receiving balance consideration amount of Rs. 2,50,000/-.
- OPs are further directed to pay compensation of Rs. 50,000/- to the complainants.
- OPs are also directed to make payment of a sum of Rs. 10,000/- as cost of litigation in favour of the complainants.
The above directions be complied by the OPs within a period of 60 days from today failing which the complainants shall be at liberty to execute the order by filing appropriate application under the CP Act, 2019 against the OPs.
Order be communicated to the parties as per rules and judgment be uploaded forthwith on the website of this commission for perusal of the parties.
