Sri. Apurba Kr. Ghosh............President.

Both the petitioners filed this case under section 34/35 of the Consumer Protection Act. 2019 and praying for the following relief/order:

1. Direction against the OP to deliver up the Clear, Khas and actual possession of the suit property to the complainants and execute the necessary deed of conveyance to and in their favour or in default thereof a direction against the OPs to make payment of Rs. 7,15,500/- to the complainants together with interest accrued thereupon from the date of legal notice.
2. Direction against the OPs to make payment of Rs. 2,00,000/- to the complainants towards compensation due to mental agony, harassment suffered by complainants owing to the acts and conducts of the OP.
3. Direction against the OPs to pay a sum of Rs. 25,000/- to the complainants towards litigation cost.
4. Any other relief/reliefs which the complainants are entitled.

Brief facts of the complainant.

1. That the complainants are son and mother were keen to purchase residential flat along with parking premises and entered into an agreement dated 20.05.2019 with the OPs for purchasing scheduled mentioned property for the total consideration of Rs. 28,51,500/-.
2. That the complainants as per terms of the agreement paid a total sum of Rs. 7,15,500/- to the OPs and on receiving the said sum of money from the complainants  OPs issued money receipt in favour of the complainant no. 1.
3. That at the time of entering into agreement OPs have already received sanctioned building plan for the building namely Rishiraj Enclave which was duly inspected by the complainants and as per the said agreement the OPs are supposed to deliver the up the  Khas, actual and physical possession of the suit property within 18 months from the date of sanctioning of the aforesaid building plan. The complainants were not provided building plan and as such the original as well as copy of building plan are still lying with the OPs.
4. 18 months tenure has already been expired from the date of sanction of the building plan but on several requests by the complainants the OPs neither deliver up the Khas, actual, physical possession of the suit flat to the complainant nor they execute the necessary Deed of conveyance in favour of them and till date the OPs have not even completed construction of the building for which the complainants are facing immense hardship, difficulty.
5. That finding no other alternative the complainant on 17.08.2020 sent legal notice to the OPs requesting them to execute necessary Deed of Conveyance in their favour upon payment of balance consideration amount within one month from the date of receipt of that notice but they deliberately refused to accept the said legal notice and the conduct of the OPs is nothing but the deficiency in services.
6. That  the cause of action of this complaint arose in the month of June 2020 when the complainants requested the OPs to deliver up the Khas, Actual and Physical possession of the suit property in favour of the complainants and execute the necessary Deed of conveyance to and in their favour and thereafter on 17.08.2020 when the legal notice was issued and thereafter on each and every day.
7. In respect of the complaint the petitioners have filed some documents by a firisti which are as follows:

1. Xerox copy of Deed of agreement dated 20.05.2019.
2. Xerox copy of acknowledgement come money receipts.
3. Xerox copy of legal notice dated 17.08.2020 along with postal receipt and returned envelope.

Notice was sent from this commission and on receipt of notice the Ops have appear before this commission through their Ld. advocate on 05.03.2021. But subsequently they did not turned up before this commission to contest this case. Accordingly the case is taken up for ex-parte hearing. Now the question is to decide as to whether ;

POINTS FOR CONSIDERATION

1. Whether the complainants is a consumer as per the provision of C.P. Act. ?
2. Whether the case is maintainable in its present form and prayer under the provision of the C.P. Act. ?
3. Whether there is any cause of action to file this case by the complainants?
4. Whether there was deficiency in service on the part of the OP as alleged by the complainants?
5. Is the complainant has able to prove this case and entitled to get any relief as prayed for?

                                                DECISION WITH REASONS

All the points are taken up together for discussion to avoid unnecessary repetition and for the sake of convenience and brevity of this case.

In order to prove the case the petitioners have filed their written deposition in the form of an affidavit. In the written deposition the complainants have specifically corroborated the contains of the complaint and they have also filed some documents by a firisti including the Deed of agreement, money receipt as well as legal demand notice.

At the time of argument Ld. Advocate of the complainants submits that the complainants have been able to prove the case against the all the OPs who despite receiving the sum of Rs. 7,15,500/- did not delivered the Khas, Actual and physical possession of the flat in question in favour of the complainants. He further argued that the OPs have not also took any initiative for execution of the Deed of conveyance in favour of the complainants on receiving the balance amount as per terms and condition mentioned in the said agreement. It is further argument of the complainants that by not delivering the Khas possession of the flat and non execution of Deed of conveyance in favour of the complainants is nothing but the deficiency in service on their part. He praying for necessary order in this regard.

Having heard the Ld. advocate of the complainants and on perusal of the entire record including the evidence of the complainants as well as documents filed. It is admitted fact that the agreement was executed by and between the complainants and the OPs for selling a scheduled mentioned flat along with car parking. It is also admitted fact that the OPs have received a sum of Rs. 7,15,500/- from the complainants as per terms of the agreement and to that effect money receipts were also issued in favour of the complainants. It is also proved before this commission that the complainants were compelled  to sent legal demand notice in favour of the OPs requesting them to deliver actual, Khas possession of the flat in question in favour of the complainants and they also requested the OPs to execute the Deed of Conveyance in their favour. But the OPs despite receiving amount of money as per agreement did not pay any heed to the request of the complainant by delivering Khas possession of the flat as well car parking in favour of the complainants.

Having heard the Ld. advocate of the complainants and considering unchallenged evidence of the complainants including their documents we are of the view that the complainants have been able to prove their case to the effect that there is deficiency in service on the part of the OPs who despite receiving the said sum of Rs. 7,15,500/- from the complainants did not take any initiative for delivering Khas possession of the flat in question along with car parking after receiving the balanced amount. We are also of the view that complainants are entitled to get the relief as per law.

Hence,

Ordered

That the instant consumer case being No. 16/2020 is allowed on ex-parte against the OPs but in part.

The OPs  are jointly and severally liable to pay awarded amount to the complainants. The OPs are directed to pay a sum of Rs. 7,15,500/- (seven lakhs fifteen thousand five hundred) only to the complainants along with interest @ 7% per annum with effect from the date of issue legal notice by the Ld. advocate on behalf of the complainants i.e. since 17.08.2020 till making payment of the entire amount.

The OPs are also directed to pay a sum of Rs. 15,000/- (fifteen thousand) only to the complainants towards mental pain, agony and harassment  for deficiency in service as well restrictive trade practice on the part of the OPs.

The OPs are also directed to pay a sum of Rs. 5,000/- (five thousand) only to the complainants towards litigation cost. The OPs are also directed to pay a sum of Rs. 10,000/- (ten thousand) only in the Consumer Legal Aid Account of this Commission.

Let a copy of this order be given to the parties free of cost.