J U D G E M E N T
Claiming himself as a consumer, under the C. P. Act, 1986, the complainant has sought for interference of this Forum in respect of fact complained of.
In epigrammatic, the case of the Complaint, is that, the Complainants had entered into an ‘Agreement for Sale’ on 14.08.2008 for purchasing a self contained flat of 400 sq. ft. area in a multistoried building with the Opposite Party, specifically mentioned in the ‘Kha’ Schedule property, for a total consideration amount of Rs. 2,50,000/- only.
Accordingly the Complainant claimed to have paid a sum of Rs. 2,00,000/- only to the Opposite Party and ready and willing to pay the rest at the time of delivering the possession of the said flat. But the Opposite Party has failed to hand over the actual possession of the said flat and also failed to execute and register the ‘sale Deed’ in respect of the said flat in favour of the Complainant till to date. The Complainant repeatedly requested the Opposite to do the needful but the Opposite Party was reluctant to bother to do the same.
Being the helpless lady the Complainant had previously filed a Complaint Case vide No. 115/2010 before the DCDRF, Hoogly claiming the flat on the 1st floor as the said ‘Agreement for Sale’ dated 14.08.2008 specifies the same. After contesting the case the DCDRF, Hoogly had pleased to pass an ‘Order’ in favour of the Complainant directing the Opposite Party to provide the flat on the 1st floor after payment of balance consideration amount. But the Opposite Party dissatisfying with the said ‘Order’ had preferred an Appeal before the Hon’ble State Commission and after due hearing the Hon’ble State Commission has pleased to allow the said Appeal setting aside the ‘Order’ of the CDRF, Hoogly and directed to deliver the flat on the Ground floor (not on the 1st floor) to the Complainant. After disposed of the matter the Complainant sent a legal notice on 29.10.2013 requesting the Opposite Party to transfer the said flat, but the Opposite Party did not pay any heed to it, what amounts to negligence and deficiency in service on part of the Opposite Party and caused mental agony and harassment to the Complainants for which they had asked for compensation and the instant case is filed for seeking adequate redressal before this Forum.
Resisting the Complaint, the Opposite Party filed Written Version for denying the contentions and all material allegations made by the complainant in the Petition of Complaint and stating inter alia, that the Complainant has no cause of action to file the instant case and the case is not maintainable.
The specific case as stated by the Opposite Party in gist, is that, originally the Complainant had booked a flat on the Ground floor, but the Complainant had claimed the flat on the 1st floor instead of the Ground floor. Moreover, the Complainant demanded another flat which had/has earlier and subsequently cancelled and thereafter started to demand another with the same consideration which is not justified at all.
Thus, the Opposite Party has denied any negligence or/ and deficiency in rendering service on his part and the Complainants are not entitled to get any relief as prayed for and the Opposite Party prayed for dismissal of this case.
Points for Determination
1. Is the complaint maintainable under the C. P. Act ?
2. Was there any negligence or deficiency in service
on the part of the O.Ps ?
3. Is the complainant entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for consideration for the sake of convenience and brevity.
The main dispute between the Complainant and the Opposite Party is that whether the Opposite Party is liable to provide the flat on the Ground floor to the Complainant or not.
We have carefully considered and scrutinized the submission made before us by the Ld. Advocate for the Complainant and also critically perused all the material documents on record though the Ld. Advocate for the Opposite Party or the Opposite Party himself was not present at the time of the argument on repeated calls.
On overall evaluation of the argument advanced by the Ld. Advocate of the Complainant, and on critical appreciation of the case record, it is clearly evident that admittedly the Complainant had booked a flat by entering into an ‘Agreement for Sale’ dated 14.08.2008 by paying Rs. 2,00,000/- only out of the total consideration amount of Rs. 2,50,000/- only which was never denied by the Opposite Party by filing his Written Version.
It is revealed from the record that the Complainant specifically expressed his readiness and willingness to pay the rest amount of consideration amount at the time of delivering the possession of the said flat towards him.
Manifestly it is evident from the photocopies of the ‘Order’ pleased to pass by the Hon’ble State Commission on 06.09.2013 that both the Complainant and the Opposite Party are bound by the ‘Agreement’ entered into by and between the parties wherein it has been clearly mentioned about a flat as definitely scheduled in the Ground floor of the project and not on the 1st floor.
But the record reveals that the Opposite Party did not yet hand over the said flat as per the ‘Order’ of the Hon’ble State Commission though he had preferred the appeal and the Hon’ble State Commission pleased to allow the same and directed to provide the flat to the Complainant. So, the Opposite Party is still liable to transfer the said flat of 400 sq. ft. as per direction of the Hon’ble State Commission and the ‘Kha’ Schedule property.
Thus, in view of the above findings the Forum is inclined to hold that in the present state of affairs the prayer of providing/delivering the flat on the Ground floor of the building (as per the direction of the Hon’ble State Commission) should provided by the Opposite Party in favour of the Complainant and the Opposite Party is still liable to deliver the same.
Therefore, in light of the above analysis, we are inclined to hold that the Complainant has successfully proved the case and is entitled to get the relief as prayed for from the Opposite Party and consequently the points for determination are decided in affirmative.
In short, the Complainant deserves success.
In the result, we proceed to pass
O R D E R
That the case be and the same is allowed on contest against the Opposite Party with cost of Rs. 5,000/- only payable by Opposite Party within one month from the date of this ‘Order’.
That the Opposite Party is directed to hand over the actual possession of the said flat as described in the ‘Kha’ Schedule property as per the direction of the Hon’ble State Commission to the Complainant within a period of one month from the date of this ‘Order’.
That the Opposite Party is directed to execute and register the Deed of Conveyance in respect of the said flat (as stated in the ‘Kha Schedule’ property in the complaint) in favour of the Complainant within one month from the date of this ‘Order’. In default, the Complainant has liberty to execute and register the same through the Consumer Forum.
That all the Opposite Party is further be directed to pay a sum of Rs. 5,000/- only, to the Complainant, as compensation for harassment and mental agony within one month from the date of this ‘Order’.
In the event of non compliance of any portion of the executable order by the Opposite Party within the above specified period, the said Opposite Party shall have to pay a sum of Rs. 200/- only per day from the date of this order till its realization, as punitive damages, which shall be deposited by the Opposite Party to the State Consumer Welfare Fund.
Let the copy of the order be supplied to the parties free of cost when applied for.
