Judgement Hon’ble Mr. Sudip Niyogi, President FACTS The fact leading to the complainant case is that complainants had booked a flat in the project “VIKRAM UTPHULLA” to be developed by the Opposite Party at Plot No. 29, Mouza- Barhan Fartabad, R.S Dag Nos. 587 & 593 under R.S Khatiyan No. 1174, P.S- Sonarpur, District- South 24 Parganas as mentioned in the petition of complaint. Accordingly, one Memorandum of Understanding (MoU) was made on 20/06/2017 where it was agreed that within three months from the date of the said agreement, the possession of the said flat along with car parking space to be handed over by the Opposite Party at a consideration of Rs.38,00,000/-. Accordingly, complainants paid Rs.30,50,000/- on different dates out of the said consideration during the period from 14/07/2017 to 12/09/2018. Complainants alleged that though 80 % of the consideration amount was paid by them, Opposite Party did not complete the construction of the said flat and hand over the possession, even repeated request in this regard came to no effect. Opposite Party issued a possession letter on 10/09/2018 to the complainants and agreed to take payment of the balance consideration of Rs.7,50,000/- only after completion of the remaining work. But thereafter, Opposite Party did not complete the remaining construction even on repeated request, nor execute and register any deed of conveyance and later, the said Opposite Party became completely incommunicado. On being compelled, the complainants completed the remaining construction works namely, wall plastering and the other works in floor, kitchen, plumbing, electricity etc. at his own cost. Opposite Party also failed to install transformer though he collected Rs.35,000/- from them. As a result, complainants had to pay Rs.43,000/- on 19/11/2020 on account of installation of transformer to the Flat Residents Association for carrying out the same. Complainants also sent a legal notice to the Opposite Party alleging deficiency in service and unfair trade practice on his part and called upon him to execute and register a deed of conveyance. But the said notice returned with postal endorsement “Left” and “Not Claimed”. So, the complainants by filing the instant complaint before this Commission prayed for a direction upon the Opposite Party to execute and register the deed of conveyance in favour of the complainants, make payment for cost of completion of the incomplete work including transformer installation amounting to Rs.1,50,000/-, compensation of Rs.3,00,000/- for causing harassment, mental agony and insecurity and cost of litigation. Notice was issued upon the Opposite Party but he did not turn up and contest the case. So, the case was heard ex parte against him. Therefore, the point for consideration is whether the complainants are entitled to relief (s) prayed for in this case. FINDINGS Besides filing evidence on affidavit, the complainants produced a number of documents which are the Memorandum of Understanding between the Opposite Party who is found to be the proprietor of M/s. A.S.H.A dated 20th June, 2017 and the complainants, the money receipts issued by the Opposite Party showing receiving payment from the complainants on different dates, one possession letter and payment receipt and the photo copies of one joint development agreement dated 27/01/2015 between the Opposite Party and the landowners, one registered Power of Attorney in favour of the Opposite Party- Developer and one gift deed in favour of one of the landowners, Sabuj Sen. From the evidence and all these documents filed by the complainants, it is found that complainants had agreed to buy the flat as mentioned in the petition of complaint and the Memorandum of Understanding dated 20/06/2017 i.e. Flat No. 1B, on the first floor measuring about 1060 sq. ft. along with car parking space at said “Vikram Utphulla” with the Opposite Party at a consideration of Rs.38,00,000/-. It is also found that out of the said consideration, the complainants already paid already Rs.30,50,000/- by making payment on different dates. Apart from this, we find that the Opposite Party also received Rs.35,000/- vide money receipt No. 0193 dated 02/02/2019 on account of installation of a new transformer. We also find from the documents that on 10/09/2018, Opposite Party issued a possession letter in respect of the said flat and car parking space in favour of the complainants and accordingly, the complainants obtained possession. But their grievance is that the execution and registration of the deed of conveyance in their favour still not being made. It is further found that complainants had to pay Rs.43,000/- by way of a cheque vide No. 398178 drawn on Vijaya Bank dated 15/11/2020 to the Bikram Neer Residents Association which was encashed on 19/11/2020 on account of cost of transformer and installation thereof. According to complainants, though Opposite Party received Rs.35,000/- from them for installation cost but he did nothing which means complainants had to pay Rs.35,000/- + Rs.43,000/- = Rs.78,000/- towards cost of transformer and installation thereof. Though complainants claimed to have incurred money for completing the incomplete works in their flat but no documents in this regard was produced by them. We find that Rs.7,50,000/- still due towards consideration to be paid by the complainants but they are entitled to get deduction of Rs.78,000/- from the said balance amount i.e. complainants had to pay Rs.7,50,000 – Rs.78,000/- = Rs.6,72,000/- as balance consideration. Thus, on the basis of the materials on record including evidence and documents, we find that complainants have been able to establish their case and therefore, they are entitled to reliefs. Accordingly, it is ORDERED That the instant case be and the same is allowed ex parte against the Opposite Party. Opposite Party is directed to execute and register a Deed of Conveyance in favour of the complainants in respect of the flat as mentioned in the petition of complaint on payment of balance amount of Rs.6,72,000/- [Rs.7,50,000 – Rs. 78,000/-]. Opposite Party is also directed to pay Rs.20,000/- (Rupees Twenty Thousand Only) for compensation for causing harassment and mental agony etc. and Rs.5000/- (Rupees Five Thousand Only) for cost of litigation to the complainants. Opposite Party is directed to comply with these orders as mentioned above within 45 days from the date of this order, failing which the complainants shall be at liberty to proceed in accordance with law. |
