MR SHYAMAL KUMAR GHOSH, MEMBER
The instant consumer case has been filed ) by the Complainants against the opposite parties (OPs 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 amount 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 partner of the OP No. 1 and OPs No. 4 to 7 are the landowners. Be it mentioned here that the OPs No. 4, 5 & 6 are the legal heirs of Amitrajit Chakraborty who was the owner of land alongwith OP No. 4 at the time of signing the agreement for sale. The complainants have intended to purchase one new flat alongwith modern facilities near South Kolkata . An agreement for sale dated 07.12.2008 has been executed by and between the parties herein for purchasing of the flat on the 3rd floor, South West side , Block B measuring about 1100 sq.ft. alongwith car parking space at a consideration price of Rs. 15,00,000/-. Out of total consideration amount the complainants have already paid Rs. 18,35,000/- on the various dates. As per agreement the opposite parties were supposed to provide the possession of the flat to the complainants within the month of December, 2009. 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 and accordingly,the complainants have filed a general diary with the local police station. 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 both are old aged persons suffering from immense mental pain and agony and after payment of consideration amount they have failed to enjoy the flat alongwith covered car parking space peacefully. There is a clear gross negligence and 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.
By virtue of order no. 10 dated 18.11.2022, the instant consumer case has been fixed for exparte against the OPs 1 to 7 as no written version has been submitted by them after availing the reasonable opportunities.
Ld. Advocate appearing for the complainants has fairly submitted that the complainants have intended to purchase one newly constructed residential flat measuring are 1100 sq.ft. alongwith the car parking space at a total consideration amount of Rs. 15,00,000/- and to that an agreement for sale dated 07.12.2008 has been executed by and between the complainants and the opposite parties herein. The Ld. Advocate has further argued that the complainants have already paid Rs18,35,000/- to the developer. As per agreement, the opposite parties were supposed to provide the possession of flat to the complainants within the month of December, 2009 but the OPs have failed to deliver the possession of flat in habitable condition within the stipulated period of time. To that effect the complainants have lodged a general diary against the OPs with the local police station. 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 has also submitted that it is very unfortunate at the behest of the complainants that after payment of full consideration amount the complainants have deprived to enjoy the said flat. There is no chance to deliver the aforesaid flat to the complainant as long 15 years have already been elapsed and accordingly the Ld. Advocate appearing for the complainants 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 complainants 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 07.12.2008 , it appears to us that Shri Subrata Mukhopadhyay and Smt. Chitra Mukhopadhyay both have entered into aforesaid agreement with the developers and the landowners in respect of purchasing newly constructed flat measuring a super built up area about 1100 sq.ft. more or less on the 3rd floor, South West facing Block B 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 money receipt and bank pass book, it appears to us that Subrata Mukhopadhyay has already paid to the OP No. 1 M/S, Millennium India Construction amounting to Rs. 18,35,000/- on the various dates and to that effect the OP No. 1 has acknowledged the same and issued the aforesaid money receipts in favour of Subrata Mukhopadhyay.
During the pendency of the consumer case Subrata Mukhopadhyay expired on 24.08.2022 and to that effect one interlocutory application being no. IA/930/2022 has been filed by the complainants praying for substitution of Complainant No. 1.
Having heard the Ld. Advocate and upon careful perusal of the relevant documents and papers the instant interlocutory application has been allowed and Sudipta Bandyopadhyay and Tanushri Chattopadhyay both daughter of late Subrata Mukhopadhyay have been incorporated at the place complainant no. 1.
In pursuant to the above discussion, it is crystal clear that the complainants have paid total consideration amount 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 the agreement for sale has been executed in the year 2008 between the parties. Now it is the year 2023. So, it is very unfortunate at the behest of the complainants that after expiry of long 15 years 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 of the record, it is crystal clear to us that the OPs No.1 to 3 have received the total consideration amount of Rs. 18,35,000/- 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 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 and the order of refund should be passed in order to meet the proper justice to the complainants.
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 i 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 least that the allegations against the OPs clearly stated in the petition of complaint remain 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 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 1 to 3 and accordingly we allow the instant CC case exparte against OPs 1to 3 with cost and dismiss the same exparte 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. 18,35,000/- (Rupees eighteen lakhs thirty-five thousand) only to the complainants within 60 (sixty) days from the date of this order alongwith 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.
