Brief facts necessary for the adjudication of the present complaint are that OPs 2 to 5 are the joint owners of a land measuring about 500 sq. ft. situated under R S Dag No. 2206, J L No. 10 at Mouza- sultanpur within the limits of Dum Dum Municipality being Premises No. 103, Manasbhumi Lane, Kolkata – 700 079. They entered into a Development Agreement dated 10.03.2016 with OP 1 to construct a multi storied building over the above-mentioned land. OP 2 to 5 also executed and registered a power of Attorney dated 10.03.2016 in favour of the OP 1. Complainants booked two flats measuring about 300 sq. ft. and 260 sq. ft. covered area of the 1st floor of the proposed building by entered into an Agreement for Sale dated 19.04.2017 with the OPs. As per agreement, the cost of construction of those flats is fixed at Rs. 14,00,000/- i.e. Rs. 2,500/- per sq. ft. OP 1 is liable to handover physical possession of the flats to the complainants within 12 months from the date of execution of the Agreement for Sale. Complainants have state that they have paid Rs. 10,00,000/- to the OP 1 by cheques and cash on different dates. However, the OP 1 did not handover the flats to the complainants. The OP 1 assured the complainants through letter dated 01.04. 2018 that the possession of the flats will be handed over by 31.07.2018. Despite assurance dated 01.04.2018 the OP 1 did not deliver possession of the flats in favour of them. Hence, the complainants approached the commission on the allegation of deficiency in service and unfair trade practice on the part of the OPs with the prayer for several reliefs - Viz – (a) to direct the OPs to refund an amount of Rs. 10,00,000/- towards booking money along with interest @ 18% per annum, (b) to direct the OPs to pay Rs. 5,00,000/- as compensation, (c) to direct the OPs to pay Rs, 50,000/- towards mental agony and harassment and (d) to direct the OPs to pay litigation cost of Rs. 25,000/- etc. Despite publication of notice of the complaint in daily circulated news paper, the OPs did not turn up to contest the case by filing written version within the statutory period provided under the Consumer Protection Act, 2019. Thus, the case runs ex-parte against the OPs. Complainant No. 2 Rabin Chakraborty has filed his E/chief supported by way of affidavit in support of their case. They have also relied the documents annexed with the petition of complaint. We have perused the material available on record and heard the Counsel for the complainants. The fact that the complainants had booked two flats measuring about 300 & 260 sq. ft. covered area on the 1st floor of the proposed building at Premises No. 103, Manasbhumi Lane, Ward No. 2 under Dum Dum Municipality, Kolkata-700 079. An Agreement for Sale dated 19.04.2017 was executed between the parties in respect of the subject flats. Payment to the extent of Rs. 10,00,000/- made by the complainants to the OP 1 is also evident from the receipts issued by the OP 1 attached with the complaint. The Consumer Protection Act, 2019, came into force in order to protect the interest of consumers who are affected by the acts of the service providers, who in order to attract the consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back. The Consumer Protection Act, 2019 defines a consumer as follows - 2 (7) consumer means any person who
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose. Explanation -For the purposes of this clause-
(a) the expression commercial purpose does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment,
(b) the expressions buys any goods and hires or avails any services includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing, deficiency has been defined under section 2 sub section (11) which reads as follows - deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes- (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer, and (ii) deliberate withholding of relevant information by such person to the consumer, Returning to the facts of the present complaint, on perusal of the record shows that the complainants entered into an agreement to avail the services of the OP 1 for a consideration. However, the OP 1 failed to honour the terms of the Agreement for Sale, aggrieved by which, the complainants have approached this commission. Hence, the complainants are entitled to file the present complaint before this Commission since the complainants are aggrieved by the deficient services of the OP 1 to handover the possession of the subject flats on receiving balance consideration of Rs. 4,00,000/- within a stipulated period. The dicta of the Hon’ble Supreme Court in Narne Construction Pvt. Ltd., etc. –Vs- Union of India & Ors. etc., reported in AIR 2012 SC 2369, wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development authority and enters into an agreement with the Developer, or the contractor, the nature of transaction is covered by the expression service of any description. Housing construction or building activity carried on by a private or statutory body constitutes ”service” within the ambit of section 2 sub section 42 of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers. Moreover, the OPs did not contest the case by filing WV denying the allegation of the complainants as stated in the complaint petition. A failure of the Developer to comply with the contractual obligations to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression service in section 2(42) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction. At this stage, we deem it appropriate to refer to letter dated 01.04.2018 issued by OP 1, wherein it was written that the possession of the flats measuring about 560 sq. ft. was expected to be handed over in the month of August, 2018. However, till date neither the construction of said project has been completed by the OP 1 nor the possession of the flats has been delivered to the complainants. In these circumstances, it is clear that the OP 1 failed to offer possession of the subject flats within the stipulated period on receiving balance sale price. Consequently, we hold that the OP 1 deficient in providing its services to the complainants as the OP 1 had given false assurance to the complainants with respect to the time for handing over the possession of the subject flats and kept the hard earned money of the complainants for about 05 years. We do not find any deficiency in service and unfair trade practice on the part of OPs 2 to 5/land owners. Keeping in view the facts of the present case and extensive law as discussed above, we directed the OP 1 to refund the entire amount paid by the complainants i.e. Rs. 10,00,000/- along with compensation and litigation costs as per following arrangement - - OP 1 is directed to refund entire booking amount of Rs. 10,00,000/- to the complainants,
- OP 1 is further directed to pay Rs. 50,000/- for mental agony and harassment to the complainants and
- OP 1 is also directed to pay Rs. 5,000/- as litigation cost to the complainants.
The above amount must be paid within 60 days from the date, in default; the complainants shall have the liberty to get the award in an execution proceeding in accordance with law. Thus, the consumer case is allowed ex-parte against the OP 1 and dismissed ex-parte against the OPs 2 to 5/land owners. A copy of this judgment be provided to the parties free of cost as mandated by the CP Act, 2019. The judgment be uploaded forthwith on the website of the commission for perusal of the parties. File be consigned to the record room along with a copy of this judgment. | 
