SRI SHYAMAL KUMAR GHOSH, MEMBER

• The instant Appeal has been preferred by the appellant/opposite-party challenging the judgment and order dated 23/11/2021 passed by the ld DCDRC, Kolkata Unit-1 in connection with CC case being no – 129/2020 wherein the ld DCDRC has been pleased to allow the Consumer case ex-parte against the opposite party. Being aggrieved and dissatisfied with such order, the appellant/opposite-party has preferred the instant appeal against the respondent/complainant.
• The fact reveals in short that the complainant entered into an agreement for sale with the opposite party on 22/09/2015 in respect of one self contained residential flat along with car parking space at a total consideration amount of Rs.16,36,890/-  only. As per payment schedule the complainant paid Rs.15,14,677/- only to the developer out of total consideration amount. As per terms and conditions of the agreement for sale, the opposite party promised to complete the construction work within 36 months along with 6 months grace period. In spite of receiving Rs.15,14,677/- the opposite party did not complete the flat in question in habitable condition and also failed to deliver the possession of the said flat to the complainant within reasonable period of time. Having no other alternative the complainant/respondent herein knocked at the door of the ld DCDRC for getting proper relief/reliefs as prayed for.
• The notice was served upon the opposite party. They also appeared before the ld DCDRC but after availing several opportunities the opposite party failed to file their written version in order to defence the aforesaid consumer case and as such the case was fixed for ex-parte against the opposite party.
• The appellants were absent without any steps at the time of final hearing. Complainant/respondent was present through the ld advocate and filed brief notes of arguments.
• Ld advocate appearing for the respondent/complainant has argued that the complainant has paid consideration amount of Rs.15,14,677/- to the developer for purchasing the said flat in question for his personal use.  Hence he comes well within the definition of the consumer under the Consumer Protection Act, 1986. Ld advocate further has further argued that since the developer/opposite party entered into an agreement for sale, the opposite party would be bound to execute and register the deed of conveyance in favour of the complainant and to hand over the possession of the subject flat. Since the opposite party has failed to perform his duties properly in pursuant to the terms and conditions of the agreement for sale, it is crystal clear to us that there is a fault or gross negligence on the part of the opposite party. So the complainant/respondent is entitled to get proper relief/reliefs as prayed for against the opposite party/appellant.
• We have heard the ld advocate appearing for the respondent/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 was concluded.
• It is admitted that the complainant/respondent already paid Rs.15,14,677/- to the opposite party/appellant- developer on the different dates which is clearly revealed from the following table:

Total  consideration amount paid   Rs.15,14,677.00

In pursuant to the agreement for sale dated 22.09.2015 the opposite party promised to deliver the possession of the subject flat to the complainant after completion of the building within the stipulated period of time. But they have failed to comply the terms and conditions of the aforesaid agreement for sale. Be it mentioned here that at the time of hearing the complainant also promised to pay the rest consideration amount to the opposite party/developer. In spite of receiving Rs.15,14,677/- (lions shares of money) the opposite party/appellant did not co-operate with the complainant/respondent which causes clear case of unfair trade practice as well as gross negligence and deficiency in service on the part of the opposite party.

At the threshold, it was brought to our notice that before the Ld. Trial Commission, the appellant/OP failed to file their written version and to that effect, the Consumer Complaint was fixed for ex-parte hearing against the OP.  So, it is crystal clear to us that the petition of complaint remained unchallenged and un-rebutted.  There is no reason to disbelieve the testimonies of the petition of complaint.

In this regard, we can safely rely upon the decision reported in 2017 (4) CPR 590 NC wherein Hon’ble NCDRC has been pleased to hold that when the OPs did not file their written version, this conduct on their part amounts to admission of allegations levelled in the complaint against them.

In view of above observations, we seem that the decisions taken by the Ld. Trial Commission is certainly correct and proper and accrodingly, we find no such error, mistake or any irregularities in passing the order impugned dated 23/11/2021 and hence we affirm the said order passed by the ld Trial Commission.

In this respect we can safely rely upon the following case laws in order to dispose of the matter:

• In Sanjoy Kr Gupta vs Kebal Kisahan Baran and others reported in 2014 (3) CPR 236 (NC) wherein the Hon’ble NCDRC has been pleased to hold that Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds.

• In Fortune Infrastructure and another vs Trevor D’lima and others reported in (2018) 5 SCC 442 wherein the Hon’ble Apex Court has been pleased to hold that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund of the amount paid by him along with compensation.

Considering all aspects from all angles and keeping in view of present position of law and regard being had to the Hon’ble Apex Court and Hon’ble NCDRC we are constrained to hold that the negligence on the part of the appellant/opposite party is proved and accordingly we dismiss the instant appeal filed by the op/appellant without any order as to costs.

The OP/appellant is directed to comply the order impugned dated 23.11.2021 passed by the Ld. DCDRC, Kolkata, Unit-I forthwith.

The instant appeal stands disposed of as per above observations.

Note accordingly.