This complaint is filed by the complainant u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not execute the deed of conveyance in respect of the questioned flat in favour of the complainant till filing of this complaint. In the prayer portion the complainant has sought for some other prayers.
The brief fact of the case of the complainant is that with an intention to purchase one residential flat he entered into an agreement for sale with the OPs on 05.12.2001 and the OPs-1-3 have handed over the physical Khas Possession of the above mentioned flat in favour of the complainant upon receipt of the part consideration money to the tune of Rs.6,07,900/- only out of total consideration money for Rs.6,30,000/- till date. The complainant has paid Rs.6,07,900/- out of entire consideration amount in favour of the OP-1-3. The measurement of the questioned flat was settled about the 900 Sq.ft. super built up area on the 3rd floor, Flat No. E-4 at multi storied building situated within Police Station – Rajarhat. It is pertinent to mention that the complainant is in possession and enjoying the said flat. The OP-1-3 did not issue any possession certificate in favour of the complainant in respect of the flat, but he got the physical possession therein and since then occupying and enjoying the same. The OP-1-3 have promised to hand over a copy of the Completion Certificate to the complainant but till date no copy of the Completion Certificate has yet been supplied to the complainant, rather they do not show any intention to deliver the same. There is structural defect in the flat has weakened and damaged the building. Repeated shower during the monsoon is also a reason for such damage of the building. Installation of appropriate and permanent electrical meter, transformer, electrical fitting, fixtures and wiring are not done as yet. Inside painting of the building on the ground floor is also not completely done by the OPs. Though the complainant is in possession of the questioned flat but sinspite of repeated request the OPs have failed to execute the deed of conveyance in his favour regarding the said flat. On several occasions the complainant contacted the OPs requesting to complete the incomplete and unfinished works as per agreement for sale, but to no effect. The OPs have intentionally and deliberately failed to perform their duties inspitet of the written correspondences on the behalf of the complainant. The OPs did not bother to reply with a view to harass the complainant. As the OPs have failed to redressal of his grievance, hence finding no other alternative the complainant has approached before this Ld. Forum (Commission as amended) by filing this complaint praying for direction upon the OPs to execute the Sale Deed in respesct of the flat in his favour, to provide Completion Certificate in respect of the G+3 storied building as per the sanctioned plan issued by the local Municipality, to provide all unfinished common services in finished manner as per the agreement for sale, to complete the incomplete and unfinished structural and other works in respect of the flat of the complainant at the expenses of the OPs, to pay compensation to the tune of Rs.4,00,000/- due to harassment, mental agony and litigation of cost to him.
After admission hearing of this complaint notices were issued upon the OPs through Speed Post with A/D and date was fixed on 18.02.2020 for S/R and appearance as also filing written version within 45 days from the date of receipt of the notices. On 18.02.2020 Postal Track Report revealed that the OP-4 received the notice, but did not turn up, scope was given to the OP-4 for filing written version on 05.03.2020 and the said date was also fixed for S/R and appearance of other OPs. On 05.03.2020 as the OP-4 did not turn up to contest the complaint either orally or by filing written version and during this time due to over of the statutory period for filing written version this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OP-4. On the said date complainant had prayed for publication of the notices in respect of the OP-1, 2 and 3 in the newspaper. The said prayer was allowed by this Ld. Commission and the complainant was directed to publish the notice in respect of the said OPs in the newspaper namely “Aajkal”. Accordingly the complainant published the notice in the newspaper from where it is evident that the OP- No. 1, 2 and 3 were directed to be present before this Ld. Commission on 10.12.2020, failing which the complaint will run exparte against the said OPs. From the date of publication of the notice in the newspaper as the OP-1, 2 and 3 did not turn up before of this Ld. Commission within the statutory period to contest the complaint either orally or by filing written version, the Ld. Commission was pleased to pass an order on 21.12.2020 that the complaint will run exparte against the OP-1, 2 and 3. Direction was given to the complainant for adducing evidence on 04.02.2021. The evidence was adduced by the complainant on 07.09.2021. Date was given on 07.10.2021 for argument.
On 07.10.2021 the Ld. Counsel for the complainant was present; but none was present on behalf of the OPs. The Ld. Counsel for the complainant has advanced his argument.
We have carefully perused the petition of complaint along with the document as available in the record.
At the very outset we are to mention to the judgment passed by the Hon’ble NCDRC in the case of Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’
The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of the notices the OPs did not bother to turn up to contest the complaint either orally or by filing written version. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.
It is seen by us that the crux of this complaint is as to whether the complainant is entitled to get sale deed in respect of his flat in his favour or not. It is found from the record that out of the entire consideration value of the flat only Rs. 22,100/- is remaining unpaid by the complainant. It is an admitted fact that the complainant got physical possession in the said flat and enjoying the same since getting possession. As per settled law the OPs are under the compulsion/obligation to execute the sale deed in respect of the flat in favour of the complainant in view of the terms and condition of the agreement for sales. It is also the duty of the complainant to pay the remaining amount of Rs.22,100/- to the OPs before execution of the sale deed. The OPs are directed to take necessary step for execution of the deed of conveyance in respect of the said flat in favour of the complainant upon receipt of the due amount to the tune of Rs.22,100/. It is pertinent to mention herein that if the OPs will refuse to accept the said amount from the complainant, this complainant may deposit the said amount to this Ld. Commission in the name of the OPs by way of demand draft, which will be under the custody of the Registrar-in-Charge of this Ld. Commission. It is also necessary to mention that if the OPs will fail and to neglect to execute the deed of conveyance in favour of the complainant, the complainant may approach before this Ld. Commission to get it executed through the machinery of this Ld. Commission in accordance with law.
In the prayer portion of the complaint the complainant has mentioned that there are several unfinished and incomplete works in his flat as well as in the common areas. But in this respect no Engineer Commissioner’s Report is forthcoming; rather no separate application was filed by the complainant to this effect for appointment of an Engineer Commissioner for inspection on the points of the unfinished or incomplete work in the flat along in the common areas. Therefore the said prayer as made out by the complainant cannot be allowed. The complainant has also sought for the completion certificate issued by the competent authority, in this respect we are to say that in terms of the agreement for sale the complainant is very much entitled to get the copy of the completion certificate of the said multi-storied building.
Therefore, the said prayer as made out by the complainant cannot be allowed. The complainant has also sought for the completion certificate issued by the competent authority, in this respect we are to say that in terms of the agreement for sale the complainant is very much entitled to get the copy of the completion certificate of the building concerned.
Admittedly due to deficiency in service on behalf of the OPs the complainant has approached before the Court of Law by filing this complaint and for proceeding with this complaint the complainant had to incur some expenses, in our view the complainant is entitled to get litigation cost from the OPs.
We are also of the view that in spite of giving physical possession in the flat the OPs did not bother to execute the sale deed in favour of the complainant in terms of the agreement for sale as well as several written correspondences on behalf of the complainant, which is an example of deficiency of service on the part of the OP-1-3. Due to such deficiency in service on the part of the OPs the complainant is also entitled to get compensation.
Going by the foregoing discussion hence it is ordered that the consumer complainant being no. CC/205/2019 is hereby allowed in part exparte against all the OPs with cost.
The OPs are directed either jointly or severally to execute the deed of conveyance in respect of the flat of the complainant in favour of the complainant within 45 days from the date of passing of this judgement, failing which the complainant will be at liberty to get it executed through the machinery of the Ld. Forum. The complainant is directed to pay the due amount of Rs.22,100/- to the OPs without any further delay, failure on the part of the OPs to receive the said amount, the complainant is at liberty to deposit the due amount with this Ld. Commission by way of demand draft in the names of the OPs, which will be under the custody of the Registrar-in-Charge of this Ld. Commission till receipt of the same by the OPs by making an application and identity proof.
The OPs are further directed either jointly or severally to provide the completion certificate in respect of the said building to the complainant within 45 days from the date of passing of this judgement. The OP-1-3 are directed either jointly or severally to pay compensation to the tune of Rs. 10,000/- to the complainant due to deficiency in service, mental agony, pain and harassment and litigation cost of Rs. 2,000/- to the complainant within 45 days from the date of the passing of this judgement, failing which the complainant will be at liberty to put the entire decree in execution in accordance with Law.
Let complaint copy of this judgement be supplied to the parties free of cost as per C.P.R.
Dictated and corrected by
[HON'BLE MRS. Silpi Majumder]
MEMBER
