FINAL ORDER/JUDGMENT
SMT. SUKLA SENGUPTA, PRESIDENT
This application U/s 35 (1) read with Section 38 and 39 of the CP Act, 2019 filed by the complainant.
The fact of the case in brief is that the complainant being a legal practitioner has intended to purchase an unit/office room measuring about 250 sq. ft. more or less in the ground floor of premises No. 5G, Gobra Road, PS-Beniapukur, Kolkata-7000014 from the OP being the land owner and developer of the premises in question mentioned above at a consideration of Rs. 20,00,000/-. Accordingly, the complainant being a self employed person has entered into an Agreement for Sale with the OP on 01.02.2020 and paid Rs. 10,50,000/- as part consideration out of total consideration of Rs. 20,00,000/- only from his fund in 3 installments by way of two cheques amounting to Rs. 5,00,000/- and 5,50,000/- on 20.05.2020 through bank transfer for said office room/unit. The photocopy of Agreement for Sale and Bank Statement are annexed herewith as “Annexure-A”.
In the Agreement for Sale, it was agreed by the OP that the vacant possession of the subject office room would be handed over to the complainant within 06 months from the date of execution of Agreement for Sale dated 01.02.2020 but till the date of filing of the case, the OP failed to handover the possession of the subject office room to the complainant.
It is alleged by the complainant that the OP/developer has not done any construction work in the said premises after the relaxation of pandemic situation and the construction work of the premises is still at the same stage as it was on the date of execution of the Agreement for Sale dated 01.02.2020.
It is further alleged by the complainant that the OP is delaying the matter by taking several plea. The complainant on several occasion requested the OP/developer to handover the subject office/room to him but the OP did not pay any heed to his word/request ultimately on 07.12.2022, complainant served a legal notice to the OP which was duly received by the OP but in vain. The legal notice dated 27.12.2022 is annexed as “Annexure-D”.
On 23.02.2023, the complainant sent a letter to the OP opposing the illegal construction of the subject building which was started on the terrace and/or 4th floor of the premises by the developer. It is also stated and apprehended by the complainant that the OP is trying to transfer the subject office/ room to a third party at a high rate.
Hence, the case is filed by the complainant with a prayer to provide a completion certificate from the Building Department, KMC for the said building and to developer all the necessary deed/building plan/money receipts and other documents in respect of the said building and to deliver the possession of the subject office/ room measuring about of area 250 sq. ft. more or less on the ground floor front/road side facing of said building premises No . 5G, Gobra Road, PS-Beniapukur, Kolkata-7000014 and to execute the registered Deed of Conveyance in favour of the complainant as per Agreement for Sale dated 01.02.2020 and also prayed for delay charge of a sum of Rs. 2,00,000/- and compensation of Rs 1,00,000/- along with litigation cost of Rs. 10,000/-.
From the materials on record, it appears that even after the receipt of the notice, the OP did not appear before this commission and no WV has been filed within the stipulated period by him.
Under such circumstances, the case do run ex parte against the OP vide order dated 10.07.2023.
In view of above stated pleadings, it has to be considered by this commission:-
- Whether the complainant is a consumer or not?
- Whether there is/was any deficiency in service on the part of the OP or not?
Decision with Reasons
On careful perusal of the materials on record and considering the facts and circumstances of the case, it is revealed that the complainant has entered into an Agreement for Sale with the OP land owner/developer on 01.02.2020, it was agreed by and between the parties that the construction of the subject office room situated in the ground floor of the premises No. 5G, Gobra Road, PS-Beniapukur, Kolkata-700014 measuring about 250 sq. ft. more or less in the front side of road for the purpose of running of his advocate chamber and to earn his livelihood at a consideration of Rs. 20,00,000/- .
It is also reveled from evidence on record that Rs. 10,50,000/- paid by the complainant by two cheques as part consideration of the subject office room out of total consideration of Rs. 20,00,000/- but the OP/developer failed to handover the possession of the subject office room to the complainant within 06 months from the date of Agreement for Sale.
Hence, the case is filed by the complainant. So, from unchallenged evidence of the complainant, it is crystal clear that the complainant is a consumer within the ambit of CP Act, 2019 and the OP is the service provider but even on receipt of the part consideration of Rs. 10,50,000/- out of Rs 20,00,000/- of the subject office/room, the OP failed to handover the possession of the same to the complainant. Hence, this case.
Considering the evidence on record, fact and circumstances, this commission does not find any reason to disbelieve the unchallenged evidence of the complainant.
It is fact that till the date of filing of this case, the OP/developer did not handover the subject office/room to the complainant which amounts to deficiency in service on the part of the OP. So, the complainant could be able to prove that he is a consumer, he has sufficient cause of action to file this case. The case is well within the territorial as well as pecuniary jurisdiction and there is/was deficiency in service on the part of the OP/ developer.
Under such circumstances, the complainant is entitled to get relief as prayed for.
The points of consideration are considered and decided in favour of the complainant.
The complaint do get the decree as prayed for.
Hence,
Ordered
that the case be and the same is decreed ex parte against the OP with cost of Rs. 5,000/-.
The OP is directed to provide a copy of the completion certificate of the building in question to the complainant and also directed to handover the possession of the subject office room/unit measuring about 250 sq. ft. more or less situated at 5G, Gobra Road, PS-Beniapukur, Kolkata-700014 and to execute the registered Deed of Conveyance in favour of the complainant as per Agreement for Sale dated 01.02.2020 on receipt of balance consideration within 45 days from this date of order.
The OP is further directed to pay compensation of Rs. 30,000/- along with litigation cost of Rs. 5,000/- within 45 days from this date of order i.d., the complainant will be at liberty to execute the decree as per law. The MA/216/2023 stand disposed of.
Copy of the judgment be uploaded forthwith on the website of the commission for perusal.
