Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that OP is the developer of a multi-storeyed building on the Premises No. 34A, Radha Madhab Dutta Garden Lane, 1^st Floor, Kolkata – 700 010. And the OPs 2,3 and 4 are the landowners of the above premises and complainant came to know that OP developer was going to sell some flats out of his allocation from the building under construction and so, complainant was intending to purchase a flat with car parking space and OP1 agreed to sell the flat at Southern portion front side on the 4^th floor at the above mentioned premises alongwith a car parking space on the ground floor at a consideration of Rs.17,40,000/- and complainant being satisfied entered into an agreement for sale to purchase the self-contained flat and car parking space by written on 03-03-2010 with the OPs 1 to 4 with certain terms and conditions and at the time of execution of agreement of the sale on 03-03-2010 complainant paid Rs.6,00,000/- as earnest money out of total consideration and that has been acknowledged by the OPs and subsequently on request of the OP1 the complainant has compelled to pay the amount of Rs.8,00,000/- by several cheques which were encashed by the OP1 and subsequently, possession of the flat was delivered except car parking space by the OP1 on 22-07-2010 but the complainant cannot enjoy the same properly as the OP1 does not complete the construction of the building in all respect and also no lift has been installed in the lift pit despite several requests.  That complainant has paid Rs.14 lakhs in respect of the flat and car parking space to the OP1 and the OP1 has received the same by issuing receipts and then complainant is ready to pay balance amount of Rs.3,40,000/- what the complainant is willing to pay but OPs are not willing to accept the same or to execute the sale deed or car parking space by completing the entire construction but fact remains complainants are aged about 78 year and 68 year old and it is impossible for them to climb in the 4^th Floor through stairs and practically the present flat is not completed for which it is impossible for them to enjoy properly and there are several defects and for the deficient of service and negligent manner of service and also for adopting unfair trade practice complainant ultimately sent a notice on 06-08-21012 to the OP through Ld. Lawyer upon the OP in respect of the flat and car parking space on the ground floor and after completion of the entire flat and car parking space properly but they did not take any step or did not pay any heed and also did not sent any intimation and have not expressed their desire to complete the flat and car parking space and handover the car parking and also the sale deed in favour of the complainant.

          Fact remains complainant sent notice to the OP of this case by registered post with A/D by speed post but it is found that they are avoiding to accept the same and notices are received back with endorsement ‘left’ so for wide circulation of the said notice it is published in daily newspaper Ajkal, Kolkata on 23-12-2013 and thereafter, after service of the said notice through publication the Forum waited about for more than 2 months.  But OP did not turn up to contest so the case is heard ex parte.

In this case complainant filed complaint along with all material documents, thereafter, filed evidence in chief and other documents which were accepted by this Forum as part of the documentary evidence on behalf of the complainant and as because OPs did not turn up to contest that they got notice of this case by publication ultimately the case was heard ex parte against the OPs and after hearing argument of the complainant’s side the case was heard for final decision.

Decision with Reasons

After hearing the complainant and also Ld. Lawyer of the complainant and also after proper assessment of the material documents and verse of the materials story of the complainant it is clear that complainant entered into an agreement with the OPs on 03-07-2010 on payment of Rs.6 lakhs for purchasing a flat on the 4^th floor of southern portion and also one car parking space at the ground floor at 34A, Radha Madhab Dutta Garden Lane, Kolkata – 700 010 and it is also proved from the documents issued by the OP that time to time OPs accepted further amount of Rs.8 lakhs and the receipts as produced by the complainant as unchallenged documents proved that fact and it is also proved from the agreement to sale dated 03-03-2010 that total consideration was fixed Rs.17,40,000/- but complainant already paid Rs.14 lakhs and he has got possession incomplete flat but has got possession of the completed flat and also the car parking space on the ground floor and fact remains complainant repeatedly requested the OP to complete the flat in habitable condition and to handover the possession of the car parking space after accepting balance amount of Rs.3,40,000/- but OPs did not respond and did not take any initiative to complete the flat and to execute sale deed in respect of the flat and car parking space by handing over the possession of the car parking space to the complainant.

          No doubt the documents as produced by the complainant are unchallenged and relying upon the evidence in chief by affidavit submitted on oath by affidavit is unchallenged and practically the documents are produced by the complainant as same were issued by the OP.  So, relying upon the documents and unchallenged testimony of the complainant we are convinced to hold that complainant has proved the allegation of the complainant against the OPs beyond any manner of doubt and at the same time after proper consideration and comparative evaluation of the documents and materials we are convinced that OP developer acted in such a manner that complainant is still being harassed by him and the landowners and at the same time the conduct of the developer is found to be an act of unfair trade practice what had been adopted by the OP in this case which is beyond any manner of doubt on the ground that it is the legal duty and responsibility of the developer and the owner to execute the sale deed and to handover possession of the flat in habitable condition after completing the same and along with car parking space on the ground floor but that has not been properly done.  So, it is clear that OP developer is trying to deceive the complainant and anyhow they are trying to cheat the complainant and his wife and to put them into trouble so that they may not use the flat in life and die.

          In the light of the above observation we are convinced to hold that OPs are deficient and negligent in rendering the service as per terms and condition of the agreement to sale dated 03-03-2010 through developer received most part of the consideration from the complainant and for which complainant is entitled to get such relief as prayed for.

          Thus complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with a cost of Rs.10,000/- against the OP1 (M/s. Balaji Construction) and its proprietor Shri Amit Bhattacharya and same is also allowed ex parte against OP2 to 4 landowners but without any cost.

          OPs are jointly and severally directed to execute a sale deed in respect of flat in dispute and car parking space within one month from the date of this order after handing over possession of the car parking space and after completing the entire flat in habitable condition and if OPs failed to comply the order in that case complainant shall have liberty to execute the deed of sale through this Forum on their own cost.  For harassing the complainant and also for adopting unfair trade practice and for deceiving the complainant in such a manner OP is hereby directed to pay compensation of Rs.4 lakhs to the complainant within one month from the date of this order.  For adopting unfair trade practice and for deceiving the customer (consumer) in such a manner and to control the OP1 such sort of activitiesOP1 is imposed to punitive damges of Rs.2 lakhs for adopting unfair trade practice etc. and that shall be deposited to this Forum within one month from the date of this order.

          If OP1 does not comply the order with the help of other OPs in that case OP1 shall be prosecuted u/s.27 of the C.P. Act and for non-compliance of the Forum’s order he shall have to pay penal interest @Rs.500/- per day till full implementation of this order and for full satisfraction of the order and even for repeated violation of the Forum’s order further penalty may be imposed against OP1.

Dictated & Corrected

      by me