Hon’ble Mr. Ajeya Matilal, Presiding Member

Ld. Advocate for the Complainant is present along with the Complainant. OP is absent.                                                                                

Heard the submission of the Ld. Advocate for the Complainant.

This is a Consumer Complaint filed under section 17 of the Consumer Protection Act, 1986 valued at Rs.35,20,000/-. The Complainant entered into an agreement dated 23.02.2015 for purchasing a flat situated at the 2^nd floor at 17/6A, Biplabi Barin Ghosh Sarani, Kolkata – 700067 for consideration of Rs.35,20,000/-. The OP entered into an agreement for sale of a residential flat of 800 sq.ft. super built up area, more  specifically mentioned in the 2^nd schedule of the Agreement for Sale. The Agreement for Sale was notarised on 26.03.2015. It would appear from the Agreement for Sale dated 26.03.2015 at page 55 that the residential flat at the 2^nd floor was measured with more or less of 800 sq.ft. super built up area including bedroom kitchens etc. The total consideration was Rs.35,20,000/-. As per the Agreement dated 26.03.2015 the committed date of delivery of possession of the flat was within 18 months from the date of agreement. The Complainant paid Rs.35,20,000/- through different cheques, bank drafts etc. Subsequently, the Opposite Party demanded Rs.5,00,000/- more for extra work. On 05.12.2015 the Opposite Party served a notice to the Complainant demanding Rs.5,00,000/- for extra work. Subsequently through his Advocate the Complainant informed the Opposite Party on 03.09.2016 intimating that apart from the consideration money they paid an extra amount of Rs.80,000/- for extra work. But the Opposite Party did not execute and register any deed of conveyance in spite of receipt of consideration money. So, the Complainant served an Advocate’s notice on 03.09.2016 on the Opposite Party. But the Opposite Party did not comply with the directions of the advocate’s notice. On 15.03.2017 the Central Bank of India issued a notice to the Complainant to deposit the original deed of conveyance. But the Complainant was unable to produce the same, because the Opposite Party did not execute the same.

Initially, the Opposite Party contested the case by filing a Written Version denying the material allegations of the complaint petition.

The Complainant filed his evidence on affidavit which was challenged by the Opposite Party putting questionnaire. The Complainant gave reply to such questionnaire. The Opposite Party adduced evidence on affidavit on 13.06.2019. The Opposite Party admitted in evidence, that he received Rs.36 lakhs paid by the Complainant. It appears from para 4 of the evidence on affidavit by the OP, that the said flat was of 800 sq. ft. super built up area as per agreement.  It is alleged by the Opposite Party that the Complainant was occupying the flat measuring about 950 sq.ft. But there is no documentary evidence in this regard. But it appears from the agreement dated 26.03.2015 that the total super built up area was 800 sq. ft.

The OP filed evidence on affidavit. The complainant put questionnaire.  OP filed reply.

Now points for consideration are:-

1. Whether the Complainant is a consumer?
2. Whether the Complainant has any cause of action to file the case?
3. Whether there is any deficiency in service?
4. Whether the Complainant is entitled to get relief as prayed for?
5. To what other relief or reliefs, if any, the complaint is entitled to?

Decisions with reasons:-

We perused the evidence on record adduced by the both sides along with the documents filed.

Annexure B includes money receipts for flat and documents regarding sanctioning of home loan by Central Bank of India in favour of the Complainant, Nitai Dey. The home loan was for Rs.20,00,000/- with a margin money of Rs.15,20,000/-.  It appears from the evidence that after the expiry of stipulated period the Opposite Party did not deliver the possession of the flat in question to the Complainant. According to the Complainant the cause of action arose on the different dates of Agreement for Sale, final reminder and notice dated 15.03.2017 issued to the Complainant by Central Bank of India. The Complainant paid EMI @ Rs.19,750/- per month to the Central Bank of India, which would appear from Annexure H. The Ld. Advocate for the complainant submitted that the Complainant paid last EMI on 28.10.2023.

On careful consideration of the pleadings, evidence on record including oral and documentary evidences, we are of the opinion that the Complainant proved his case as there is deficiency in service on the part of the Opposite Party. The Complainant has cause of action to file his case and he is entitled to relief as prayed for. All the points are decided in favour of the Complainant.

So, the case succeeds.

Hence it is ordered

The case is allowed, on contest, against the Opposite Party, with litigation cost of Rs.1,00,000/- for his mental agony and harassment. The Opposite Party is directed to hand over the flat situated at the 2^nd floor at 17/6A, Biplabi Barin Ghosh Sarani, Kolkata – 700067 and execute a Deed of Conveyance within 90 days from this order. The Opposite Party is also directed to pay interest @Rs.10% per annum on Rs.36,00,000/- from 1^st October 2016 within the stipulated period, failing which it shall carry interest in the aforesaid rate till payment.

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