MR. SHYAMAL KUMAR GHOSH, MEMBER

The instant consumer case has been filed against the opposite parties (OPs)  by the Complainants   praying for  delivery of the completion certificate, handing over possession of the subject flat, execution and registration of deed of conveyance, compensation  and litigation cost alternatively praying for refund of entire consideration  already paid by the complainants    alongwith interest.

The factual matrix of the case is that OP No. 1 is a partnership firm.  OPs No. 2 & 3 both are partners of the OP No. 1 and OPs No. 4 to 7 are the landowners. The fact remains   that the OPs No. 5, 6 & 7 are the legal heirs of Amitrajit Chakraborty who was the owner of land alongwith OP No. 4.   The complainants have intended to purchase one new flat alongwith modern facilities near South Kolkata. An agreement for sale dated 21.04.2009 has been executed by and between the parties herein  for purchasing of the flat on the 3^rd  floor, Block ‘C’    measuring about 950 sq.ft.   at a consideration price  of Rs. 18,00,000/-.     Out of total consideration about of Rs.18,00,000/-,  complainants  have already paid Rs. 13,00,000/- on the various dates. As per agreement the opposite parties were supposed to provide the possession of the flat  to the complainants   within 720 days from the date of the agreement (clause no. 3) of the agreement dated 21.05.2009 which is middle of June, 2011. But  they have  failed and neglected to provide the possession of the flat to the complainants  till date.  The complainants have tried to contact with the OPs  in order to get the possession of the flat  but in vain.   Not only that the OPs have failed to obtain the completion certificate of the building  which is mandatory for all  newly constructed building in Kolkata Municipal Area.  The Complainants, despite payment of lion share of consideration amount, he has failed to enjoy the flat    peacefully. Under such worst situation, the OPs/developers have informed the complainants that the layout of the flat has been changed and another room has been added in the subject flat. Thereafter,  a revised agreement dated 25.11.2016 has been executed by and between  the complainants and developers 1 to 3 in respect of the flat in question measuring area 1200 flat instead of  950 sq.ft. alogwith  car parking space at a consideration amount of Rs. 23,00,000/-. After   execution of  the aforesaid  revised agreement, the OPs/developers have failed to provide possession of flat, to  execute the  deed of conveyance, to deliver completion certificate till date causing  unfair Trade Practice  on the part of them. There is a clear gross negligence , deficiency in service on the part of the opposite parties and having no other alternative , the complainants  have knocked at the door of this Commission for getting proper relief/reliefs  as prayed for  against the opposite parties.

No written version was submitted by all OPs  within the stipulated period of time before this Commission after availing the reasonable opportunities.   As such, the matter has been fixed for exparte hearing.

Ld. Advocate appearing for the complainants has fairly submitted that  the complainants  have  intended to purchase  one newly  constructed residential  flat  measuring area 950 sq.ft.   at total consideration of Rs. 18,00,000/- and to that effect  an agreement  for sale dated 21.04.2009 has been executed  by and between the complainants   and the opposite parties herein.  The Ld. Advocate has further argued that the complainant  has already paid Rs. 13,00,000/- to the developer.  As per agreement, the opposite parties were supposed to provide the possession of flat to the complainants within the month of  June, 2011 but the OPs  have failed to  deliver the possession of flat in  habitable condition within the stipulated period of time.  Not only that the opposite parties have failed to obtain the completion certificate of the said building  which is mandatory for all newly constructed flat in the Kolkata Municipal area. Ld. Advocate also submitted that  it is very unfortunate that after payment of lion shares of money the complainant  has deprived to enjoy the said flat.  Thereafter, a revised agreement for sale dated 25.11.2016 has been executed between the parties in respect of  one self-contained residential flat measuring super built up area 1200  sq.ft. on the 3^rd floor South facing alongwith one car parking space at  a total consideration amount of Rs. 25,00,000/-.   By executing this revised agreement for sale  the developer has promised to deliver the aforesaid self-contained flat to the complainant  within the stipulated period of time but to no effect. There is  no chance to deliver the aforesaid flat to the complainants as  long 07 years have already been elapsed and accordingly the Ld. Advocate appearing for the complainant   has prayed for refund of the consideration amount  already paid by the complainants alongwith interest. 

At the time  of final hearing none appeared  on behalf of  the opposite parties.

We have heard the Ld. Advocate appearing for the complainant at length and in full.

We have considered the submission  of the Ld.  Advocate.

We have meticulously perused  all materials available on the record.

The final hearing has been concluded.

Upon careful perusal of the agreement for sale dated 21.04.2009 ,  it appears to us that  Naynendu Bagchi and Sudeshna Bagchi entered into aforesaid agreement with the developers  and the landowners  in respect of purchasing  newly constructed flat measuring a super built up area about 950 sq.ft.  South   facing more or less on the 3rd floor,  Block C  together with undivided proportionate share   and interest of the land  alongwith  car parking space and common facilities like lift, generator and other civic amenities. 

Upon careful perusal of the Revised Agreement for Sale dated 25.11.2016, it  appears to us that  the Complainants have entered  into this agreement with the developers No.  1 to 3 in respect of the one self-contained residential flat measuring super built up area 1200 sq.ft. on the third floor, South facing  and one open car parking space  alongwith undivided proportionate share  and interest of land  and common facilities and amenities at a total consideration amount of Rs. 25,00,000/- only.

Upon careful  perusal  of the money receipt and Bank statement,  it appears to us that  the complainants have  made   the following payment :

In pursuant  to the above discussion, it is crystal clear that the complainants have paid total consideration  amount  of Rs. 23,00,000/- to the OPs/developers for purchasing the aforesaid flat in question and as such the complainants come well within the purview of  the definition of the ‘consumers’ as per Section 2(d) (ii)  of the Consumer  Protection Act, 1986.

It is pertinent to mention here that  for the first time the agreement for sale has been executed in the year 2009 between the parties and thereafter in the year 2016.  Now, we are in the year 2023.  So, it is very unfortunate   that after expiry  of long expected long period of time,   the OPs  have failed to deliver the possession of the flat to the complainants  in habitable condition causing clear gross negligence and deficiency in service on the part of opposite parties.

Upon  careful perusal , it is crystal clear to us that the OPs  No.1  to 3 have received the total consideration amount of Rs. 23,00,000/- from the end of the complainants and as such  it should be  the bounded duties  of the OPs No. 1 to 3 to deliver the flat in question  as well as completion certificate  to the complainants but in vain.  From the detailed hearing  and upon  careful  perusal of the record, there is no hesitation to hold that  it is not possible at the behest  the OPs/developers to deliver the subject flat to the complainants in habitable condition as the project work has totally failed.  It is the settled principles of law that the complainants should not wait  for indefinite period of time to get the flat in question in habitable condition and as such the order of refund should be passed in order to meet the proper justice to the complainants.

It is pertinent to mention here that  the complainants have taken a loan from the State Bank of India for purchasing  the aforesaid flat in question.  The loan amount of Rs 5,00,000/- has been approved  by the Bank for the first time and the said amount has  been  handed over directly to the OP No. 1/developer which is clearly reflected  in the running page no. 36  issued by State Bank of India. The said loan  amounting to Rs 5,00,000/-  has been fully paid up by the complainants  which is clearly revealed from the running page no. 37  and no dues certificate has also been issued in favour of the complainants  on 31.07.2014 and accordingly the loan account being no. 31126055298 is hereby closed.

The gross negligence and deficiency on the part of the OPs/developers  are hereby proved.  In this respect,  we can safely rely upon the decision  Suniti Kumar Bhat and others –vs- Unitech Acacia Projects Pvt. Ltd.  and others reported in  2018(3)CPR 795 (NC) wherein  the Hon’ble National Commission held that when the builder fails to construct  the flat on time, he is entitled  to pay compensation in the form of  interest and cost of litigation.  In this respect we  can depend upon another  remarkable  decision  FORTUNE INFRASTRUCTURE AND ANOTHER  VS TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund  of amount paid by him alongwith compensation.

It is not last but the least that the allegations against the OPs  clearly stated  in the petition of complaint remains unchallenged as no written version has been filed by them in order to take the defence against the said petition of complaint.  Moreover, the OPs kept mum against the said allegations brought in the aforesaid consumer case filed by the complainants and accordingly there is no hesitation to hold that such silence clearly proves the negligence /fault on the part of the opposite parties/developers. 

No order should be passed against the  OPs No. 4 to 7/ landowners as  they did not receive any consideration amount  from the complainants.

Keeping in view of above observations and for finality of the litigation, there is no hesitations to hold that there is a clear gross negligence and deficiency in service on the part of OPs No. 1 to 3 and accordingly we allow the instant CC case exparte against OPs  No. 1to 3 with cost and dismiss the same  against the OPs 4 to 7 without any order as to cost.

Hence,

It is

                                                      ORDERD

That the OPs No. 1 to 3 /developers are directed to refund of Rs. 23,00,000/- (Rupees twenty-three lakh) only   to the complainants within 60 (sixty) days from the date of this order  alongwith  simple interest @ 9% p.a. (in the form of  compensation )  from the date of each payment till full realisation.

That the OPs No. 1 to 3/developers are further directed to pay litigation cost of Rs.20,000/- (Rupees twenty thousand) only to the complainants within the aforesaid stipulated period of time , in default the awarded amount   shall carry interest @ 9% p.a. till full realisation.

No order is passed against the OPs No. 4 to 7 /landowners  as they did not receive  any consideration amount from the end of the complainants.

In case of non-compliance of the order by the OPs No. 1 to 3 /developers, the complainants are at liberty to put the final order in execution.

The instant CC case is, thus, disposed of .

Note  accordingly.

Let a copy of this order  be supplied to the parties free of cost.