Sri Ashoke Kumar Pal, President

The case of the complainant in sort is that the complainant intended to purchase a flat from the OPs being Flat No.4A measuring about 1405 Sq.ft. super built up area with car parking space in the ground floor of the building namely “Aarburpoint” at premises No.449 NSC Bose Road, Kolkata-700 084 at a total consideration amount of Rs.59,70,000/- (Rupees fifty nine lakhs seventy thousand) .  An agreement for sale was also executed by and between the parties on 30.04.2013.  As per terms of the agreement the complainants paid Rs.53,03,000/- out of the total consideration amount of Rs.59,70,000/-.  The complainants took Home Loan from State Bank of India to meet the expenditure.  The complainants undertook interior works in the said flat and after completion of the same they handed over the key of the flat to the OP No.1 & 2 and waiting for the delivery of the possession of the flat by the OPs as per terms of the agreement.  On 25.07.2019 the OPs obtained completion certificate and delivered physical possession of the flat to the complainants in the month of 2019 with an assurance to issue a possession letter shortly.  The OPs demanded maintenance changes at a very high rate from the complainants from the month of April, 2017 when the complainants were not in possession of the flat.  The OPs once demanded from the claimant Rs.1,44,625/- on different heads.  But subsequently through e-mail dated 21.02.2020 the OPs demanded the complainants an amount of Rs.1,96,700/-.  On 01.12.2020 the complainant issued a legal notice from their Advocate asking the OP to issue letter of possession in respect of the flat and the car parking space and also to execute and register a valid deed of conveyance in favour of the complainants in terms of the agreement.  The OPs received the said notice but failed to comply with the requirements of the same and hence this case.  The OPs although appeared in this case but ultimately did not come forward to contest the same and as such by order No.7 dated 07.04.2022 the instance case proceeded exparte as against the OPs.

Points for consideration

1. Are the complainants consumers?
2. Are the O.Ps. guilty of deficiency in service?
3. Are the complainants entitled to get reliefs as prayed for?

Decision with Reasons

Point No.1, 2 & 3 :-  All the points are taken up together for the sake of convenience and as they are interlinked.

On perusal of the case record along with the documents, it appears that the complainants intending to purchase a flat being Flat No.4A measuring 1405 Sq.ft. Super Built up area in the 4^th floor along with garage space in the ground floor entered into an agreement with the OPs on 30.04.2013 and paid Rs.53,03,000/- (Rupees Fifty Three Lakhs and Three Thousand) out of the total consideration amount of Rs.59,70,000/- (Rupees Fifty Nine Lakhs and Seventy Thousand). The OPs issued money receipts for the same.  Therefore, the complainants are consumers as defined in Section 2(7) of the Consumer Protection Act, 2019.

      The complainants booked the scheduled flat and entered into an agreement on 30.04.2013 with the OPs to that effect.  The complainant made payment of Rs.5,03,000/-(Rupees Five Lakhs and Three Thousand) out of the total consideration amount of Rs.59,70,000/- (Rupees Fifty Nine Lakhs and Seventy Thousand) on different dates and the OP acknowledged the receipt of the same by issuing money receipts.  The complainant filed copies of the money receipts along with petition of complaint from which it appears that all the payments have been properly made.  On the other hand despite payment of the earnest money by the complainant as per terms of the agreement dated 30.04.2013, the OPs failed and neglected to issue letter of possession to the complainants and to execute and register a proper deed of conveyance.  The complainants finding no other alternative demanded the OPs a letter of delivery of possession and to execute and register a valid deed of conveyance in respect of the scheduled flat along with car parking space.  Therefore, it is clear from the averment of the complainants that the OPs are guilty of deficiency in service and unfair trade practice. 

The complainant booked the scheduled flat from the OPs and made payment of Rs.53,03,000/-(Rupees Fifty Three Lakhs and Three Thousand)  out of the total consideration amount of Rs.59,70,000/-(Rupees Fifty Nine Lakhs and Seventy Thousand) on different dates.  But the OPs violated the terms and conditions of the agreement dated 24.02.2015.  Neither the OPs gave delivery of possession letter nor executed and registered a proper deed of conveyance in favour of the complainants as per terms of the agreement of sale dated 30.04.2013.  Therefore, as the complainants did not get any positive response from the OPs.  They have been compelled to file the present case against the OPs  on the reliefs sought for in the petition of complaint.  As such, there is no hesitation to hold that the complainants are entitled to get the relief as prayed for. As the OPs did not hand over the letter of delivery of possession to the complainants nor any deed of conveyance has been executed and registered in favour of the complainants, the complainants failed to get service from the OPs.  On the other hand, the complainants were harassed by the OPs by various ways.  Therefore, the complainants are entitled to get the relief as prayed for.

Thus the 1^st, 2^nd and 3^rd points are decided in favour of the complainants and against the OPs.

In the result, the complaint case succeeds.

Fees  paid is correct.  Hence, it is,

                                                              ORDERED

That the complaint case be and the same is allowed exparte against the OP No.1-6 with cost of Rs.25,000/- (Rupees twenty five thousand).

The O.Ps. are jointly and severally liable and directed to execute and register a valid deed of conveyance in respect of the scheduled flat along with car parking space in favour of the complainants in terms of the agreement dated 30.04.2013 within 30 days from the date passing this order.

The OPs are jointly and severally liable and directed to hand over a copy of sanctioned plan, completion certificate and a valid letter of possession to the complainants within 30 days from the date of passing this order.

The OPs are jointly and severally liable and directed to pay a sum of Rs. 1,54,550/-  (@ Rs.5 per Sq.ft. i.e. 1405 Sq.ft. for 22 months) to the complainants for delay in completing the construction work and obtaining the completion certificate in terms of the agreement dated 30.04.2013 within 30 days from the date of passing this order.

 The OPs are jointly and severally liable and directed to pay compensation to the tune of Rs.1,00,000/- (Rupees one lakh) only for mental pain and agony suffered by the complainant within 30 days from the date of passing this order.

The OPs are jointly and severally liable and directed to pay the litigation cost of Rs.25,000/- (Rupees Twenty Five Thousand) within 30 days from the date of passing this order.

The complainants are at liberty to put the order into execution after the expiry of 30 days if the orders are not complied with by the OPs within 30days from the date of passing this order.

Let a copy of the order be supplied free of cost to both the parties as per rules.               

            The Final order will be made available in www.confonet.nic.in .

            Dictated and corrected by me

                      Ashoke Kumar Pal   

                               President