MR. SHYAMAL KUMAR GHOSH,MEMBER

1. The instant consumer case has been instituted by the complainant against the opposite parties praying for certain reliefs as prayed for which are reproduced as follows:-

1. An order directing the opposite parties to provide completion certificate/occupancy certificate in respect of the subject flat from the concerned department from Kolkata Municipal Corporation,
2. An order directing the opposite parties to issue tax clearance certificate till 23/08/2018 from the concerned department,
3. An order directing the opposite parties to refund Rs.9,00,000/- only paid by the complainant for extra work in the subject flat,
4. An order directing the opposite parties to pay compensation of Rs.2,00,000/- only to the complainant for deficiency in service,
5. An order directing opposite parties to pay litigation cost of
   Rs.50,000/-,
6. Interest,
7. Appointment of commissioner for commission work,
8. Any other relief or reliefs the complainant is entitled in law and in equity.

2. The brief fact of the case is that on 03/07/2013 the complainant and the ops/developers both have entered into an agreement for sale in respect of one self contained residential flat measuring area 1300 sft supper built up together with right to use the common areas and other common facilities undivided proportionate share of land at a total consideration amount of Rs.36,00,000/-. On the date of agreement for sale the complainant has paid Rs.5,00,000/- to the developer. The complainant has further paid advance money of Rs.31,00,000/- to the developer on the different dates in respect of aforesaid flat in question. The opposite parties have failed to deliver the possession of the flat and also failed to execute and register the deed of conveyance in favour of the complainant. Being aggrieved with such worst manner of the ops, one consumer complaint being no – CC/420/2014 has been filed by the complainant before this Commission against the ops. The said case has already been disposed of in favour of the complainant vide order dated 21/04/2017 with a direction for execution of the deed of conveyance with litigation cost of Rs.10,000/-. Due to non-compliance of the aforesaid order from the end of ops/developers, one execution case being no – EA/55/2017 has been filed by the decree-holder/complainant against the ops/jdrs for the enforcement of order dated 21/04/2017. However the deed of conveyance has been executed and registered in favour of the complainant at last and the same has been noted as a deed being no-2231 for the year 2018. The complainant has further stated that he has paid Rs.9,00,000/- to the ops/developers for performing extra works like false ceiling with colourful lights, interior decoration etc. but the ops/developers have failed to perform their duties as per promise/undertaking. The complainant on several occasions has requested to make the refund of Rs.9,00,000/- but to no effect. No completion certificate has been delivered to the complainant till date. Due to non-supply of the said document, the complainant has failed to mutate his name in the register of the concerned department. The developers have failed to pay arrear tax in respect of subject flat causing gross negligence and deficiency in service of the part of ops/developers. Having no other alternative the complainant has rushed to this Commission for getting proper reliefs as prayed for against the opposite parties.
3. The order no – 6 dated 13/05/2022 reveals that none appeared on behalf of the opposite parties. No written version has been  filed by both the ops. So the opportunity for filing written version has been closed and accordingly the matter has been fixed for ex-parte hearing against them.
4. The ld advocate appearing for the complainant has argued that the ops/developers have received the consideration amount of Rs.9,00,000/- for performing extra works but they have failed to execute their undertakings. No extra works have been done. No completion certificate has also been delivered to the complainant till date. The complainant suffers immense mental pain and agony. There is a clear gross negligence and deficiency in service on the part of the ops/developers. Accordingly the ld advocate has prayed for refund of Rs.9,00,000/- along with compensation and interest. The ld advocate has also prayed for delivery of completion certificate in respect of subject of subject flat.
5. We have heard the ld advocate appearing for the complainant at length and in full.
6. We have considered the submissions of the ld advocate.
7. We have meticulously perused materials available on the record.
8. We have perused the running page no – 51 of the petition of complaint wherefrom it appears to us that Sri Deepten Das has received a sum of Rs.6,75,000/- only by cheque no –310828 dated 03/07/2013 drawn on Axis Bank Ltd, Rs.1,00,000/- only by cheque no – 912270 dated 03/07/2013 drawn on Uco Bank and Rs.1,25,000/- only in cash ie total sum of Rs.9,00,000/- for the purpose of extra work done by him in respect of subject flat and to that effect the opposite party no – 2/Deepten Das has issued an acknowledgement receipt in favour of the complainant.
9. In pursuant to the above observations when the developer/op has received the consideration amount of Rs.9,00,000/- from the end of complainant towards completion of extra work of the aforesaid flat in question obviously the complainant comes well within the purview of the definition of the ‘consumer’ under the Consumer Protection Act,1986.
10. Having heard the ld advocate and upon careful perusal of the receipt/acknowledgement dated 03/07/2013 it is clear to us that the op/developer has received the aforesaid amount of Rs.9,00,000/- from the complainant but till date the developer has failed to complete the extra work. Now we are in the year 2023. The long period of ten years has already been elapsed but to no effect. Moreover, no completion certificate has been delivered to the complainant till date causing clear gross negligence and deficiency in service on the part of the op/developer.
11. At the threshold, it has been brought to our notice that no written version has been filed by the opposite parties and as such the petition of complaint has remained unchallenged and un-rebutted, resultantly, there is no reason to disbelieve the testimonies of the petition of complaint.
12. It is the settled principle of law that the complainant should not be made to wait for endless period of time for getting proper service from the end of the developer which should have been provided to the complainant within a reasonable period of time. Under such circumstances, the order of refund should be passed in order to follow the preamble of the Consumer Protection Act,1986. In this respect we can safely rely upon the decision SANJOY KUMAR GUPTA VS KEBAL KISAHAN BARAN AND OTHERS REPORTED IN 2014 (3) CPR 236 (NC) wherein the Hon’ble NCDRC has been pleased to hold that Consumer Forum is primarily meant to provide protection to the consumers and their claims cannot be defeated on technical grounds. In REAR ADMIRAL (RETD) KIRPAL SINGH VS M/S UNITECH LIMITED REPORTED IN 2018 (3) CPR 767 (NC) wherein the Hon’ble NCDRC has also been pleased to decide that when the terms of the contract are not adhered to, builder is liable to refund the amount paid with interest and costs.
13. The complainant is able to prove his case successfully as per our view. Upon careful scrutiny of the case record and the relevant documents, it is evident that the clear gross negligence and deficiency in service on the part of opposite parties are subsisted and accordingly we allow petition of complaint ex-parte against the opposite parties with costs. Hence

It is,

                                                             ORDERED

That the opposite parties are jointly and severally liable and  responsible and both are directed to make the refund of Rs.9,00,000/- (Rupees nine lakh only) to the complainant within 60 days from the date of this order along with simple interest @ 8% pa in the form of compensation from the date of each payment till full realization.

That the opposite parties are further directed to pay litigation cost of Rs.20,000/- (Rupees twenty thousand only) to the complainant within the aforesaid stipulated period of time, in default the said amount shall carry interest @ 8% pa till full realization.

The opposite parties are also directed to provide completion certificate in respect of subject flat to the complainant within the prescribed period of time.

In case of non-compliance of aforesaid order by the opposite parties, the complainant is at liberty to put the order in execution.

The consumer case stands disposed of accordingly.

Note in the register.