Complainant has filed the consumer complaint for getting possession of flat along with other reliefs.

 Brief facts of the case are as under.

 The complainant entered into an agreement for purchase a flat measuring super built-up area more or less 1038 sq.ft. on the third floor inclusive of 20% super built-up area together with undivided impartible proportionate share of land and common area of total consideration of Rs.15,10,000/- only being flat no.3C at holding no.28, Nabakrishna Guin Lane, P.O. & P.S.- Serampore, Dist.- Hooghly from the opposite party no. 1 on 1.8.2012 and the opposite party no. 1 given money receipt, agreement for sale acknowledging the receipt of Rs.14,60,000/- and gave a signed agreement to the complainant and the opposite party no. 1 is the power of attorney holder of other opposite parties and in joint venture all opposite parties are going to construct the multistoried building at the above mentioned address and in the agreement the opposite party no. 1 in the clause 17 all the opposite parties undertook that the possession of schedule flat shall be given to the complainant within six months from the date of execution of this agreement and the complainant approached to the opposite parties on several occasions for about ten times on various vague plea they intentionally refused to register a deed of conveyance in favour of the complainant and refused to give possession of the said flat and it is noted that the construction work is incomplete and no construction work take place in the schedule property for the possession of the said flat and on 1.1.2016 the complainant went to the house of the opposite party no. 1 to execute and register the sale deed in favour of the complainant but the opposite party no.1 refused to do so and abused filthy languages to the complainant and threatened the complainant with dire consequences and thereafter complainant sent a complain to the Inspector-in-charge, Serampore P.S. and on 9.2.2016 complainant went to the house of the opposite parties for the handover of the possession of the flat but the opposite parties used filthy languages and threatened the complainant that he would not give the possession of the said flat and the cause of action of the instant case arose on 9.2.2016 and lastly arose on 23.2.2016.

            Complainant filed the complaint petition praying directions upon the opposite parties to execute and register the sale deed in terms of the agreement for sale dt. 1.8.2012 in favour of complainant in respect of the schedule flat with further directions  upon the opposite parties to give possession of the schedule flat to the complainant and to pay sum of Rs.1,00,000/- for mental agony and harassment and to pay a sum of Rs.1,00,000/- towards cost of proceedings and to pass any other order or orders which fit and proper for ends of justice.

            The opposite party Nos. 3, 4, 5, 11, 12, 13 and 17 contested the case by filing written version denying inter-alia all the material allegations as leveled against them. These opposite parties submit to drop the case against them.

            The opposite party Nos. 2 to 17 and 1(a) contested the case by filing written version denying inter-alia all the material allegations as levelled against them and averred that an agreement took place in between the complainant and the opposite party for purchasing  a flat at 28 no. Nabakunja Guin lane, P.O. + P.S. Serampore, Dist. Hooghly. That on 1.8.2012 the opposite party no. 1 received a sum of Rs. 11,70,000/- from the complainant and money receipt issued on that context. It is further stated that opposite party no. 2 to 17 issued power of attorney to the opposite party no. 1 and according to the agreement the opposite party no. 1 will hand over the possession of the said flat to the complainant within six months. Inspite of several reminders by the complainant the opposite party no. 1 could not hand over the possession of the flat. Lastly the opposite party no. 1 refused to hand over the impugned flat and abused filthy languages upon the complainant. All are denied by the answering opposite party.

            The answering opposite party stated that the next neighbor of the impugned flat put objection before the Serampore municipality and the said municipality on their turn ordered to stop the construction work. So, the opposite party could not construct the said flat as a result they also failed to hand over the possession to the complainant by way of registered deed within the stipulated period as per agreement. The opposite party also referred another C.C. case being no. 167 of 2015 in which the opposite party informed regarding the stop order in their written version.

            The answering opposite party also averred that they are conducting the said developing and promoting business for more than 20 years with reputation and there is no incident of using filthy languages to the complainant. The opposite party also stated that there is no incident of deficiency of service as they could not construct the flat due to stop order given by the concerned municipality. So, the answering opposite parties are unable to construct the proposed flat and there is no cause to compensate the complainant and prayed to dismiss the complaint petition.

            The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            Complainant filed written notes of argument. The evidence on affidavit and written notes of argument of complainant are taken into consideration for passing final order.

             Ex-parte argument as advanced by the agent of the complainant heard in full.

            From the discussion herein above, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get relief or not?

DECISIONS WITH REASONS

All the points are taken together for easiness of the discussions of this case.

            In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite parties.

            Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. For mental agony and other expenses which is within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

The complainant in his argument stated that he entered into an agreement for purchase a flat measuring super built-up area more or less 1038 sq.ft. on the third floor inclusive of 20% super built-up area together with undivided impartible proportionate share of land and common area of total consideration of Rs.15,10,000/- only being flat no. 3C at holding no. 28, Nabakrishna Guin Lane, P.O. & P.S.- Serampore, Dist.- Hooghly from the opposite party no. 1 on 1.8.2012  and the opposite party no. 1 gave money receipts acknowledging the receipt of Rs.14,60,000/- and gave a signed agreement for sale to the complainant and the opposite party no. 1 is the power of attorney holder of other opposite parties and in joint venture all opposite parties are going to construct the multistoried building in the mentioned address and in the agreement the opposite party no. 1 in the clause 17 all the opposite parties undertake that the possession of schedule flat shall be given to the complainant within six months from the date of execution of this agreement and the complainant approached to the opposite parties on several occasions for about ten times on various vague plea they intentionally refused to register a deed of conveyance in favour of the complainant and refused to give possession of the said flat and it is pertinent to mention that the construction work is incomplete and no construction work took place in the schedule property that on 1.1.2016 the complainant went to the house of the opposite party no. 1 to get the impugned flat be execute and register the sale deed in favour of the complainant but the opposite party no. 1 refused to do so and abused filthy languages to the complainant and threatened the complainant with dire consequences and thereafter complainant sent a complain to the Inspector-in-charge, Serampore P.S. and on 9.2.2016 complainant went to the house of the opposite parties for the handover of the possession of the flat but the opposite parties used filthy languages and threatened the complainant with antisocial that he would not give the possession of the said flat. The complainant also assailed that opposite party no.1 failed and neglected to execute and register the deed of conveyance and also failed to give possession of the said flat in favour of the complainant.  The opposite party No.1 is deficient in service and his conduct is to extort money without discharging the obligation in accordance with the agreement for sale. The complainant has been harassed and he suffered mental pain and agony at the act of the opposite party No.1. So he filed the instant complaint before this Forum praying directions as incorporated in the prayer portion of the complaint petition.

After perusing the complaint petition, written version, evidence on affidavit and hearing the Ld advocate of the complainant this Forum/Commission is in the opinion that the complainant paid the major part of consideration money during agreement for sale and thereafter but after the expiry of stipulated period the opposite parties failed to construct the flat as agreed so there is no question to handover the peaceful vacant possession the flat as  agreed.  The complainant several times approached the opposite party no.1 for getting the possession of the said flat followed by execution and registration the deed of conveyance. The complainant has been refused to hand over the impugned flat by the opposite party.  Dispute cropped up when the opposite party No.1  and others  failed to handover the possession followed by execution &registration of deed of conveyance then the complainant filed the instant complaint petition praying directions upon the opposite party to  handover the flat followed by execution and registration which has been specifically mentioned in the schedule.

From the photocopy of documents it is clear that the opposite party No. 1 has taken the consideration money of the flat from the complainant in different times and failed to give possession to the complainant so he is under liability to handover the flat in question and to execute and register the sale deed in favour of the complainant but fact remains that the landowners are not willing/ available to execute and register the deed of conveyance. Delay of execution & registration of deed of this complainant caused due to deficiency of service of the opposite parties so the opposite party cannot evade their responsibility of paying compensation to this complainant.

It is trite law that after accepting the entire consideration amount, it is statutory obligation on the part of the developer to execute the deed of conveyance in favour of the purchaser/buyer. There is document available on the record that the complainant has made several requests to the opposite parties to get the delivery of possession followed by execution & registration of deed of conveyance in favour of him but it remained unheeded. The O.P. no.1 tried to evade his responsibility which tantamount to deficiency of service.

 It is well settled that after making payment of a bulk consideration money amount a purchaser cannot wait indefinitely for having a roof over his head. In that perspective when the opposite party no.1 has failed to hand over or delivers the possession within the time frame and did not keep promise as per agreement this itself amounts to deficiency.

 Hon’ble National Commission in Papiya Roy Burman v. Swapan Kumar Aich,2018 (4) CPR 724 (NC) held that when the landowners enter into agreement with the builder for developing their land, they are liable to sign the conveyance deed along with the builder as confirming parties.  So we may safely conclude that the opposite party No.2 to 17 are also responsible to execute the deed of conveyance in favour of the complainant.

In consumer complaint no.1198 of 2015 between Major General Vikram Puri (Retd.) & Anr V. Umang Realtech (P) Ltd 7 others decided on 1.4.2016 by Hon’ble National Commission, New Delhi reported on I (2017) CPJ 576 (NC)2017 NCJ 358 (NC) it is held that if there is huge delay in handing over possession of flat then complainant has option to refuse the same towards refund of amount with interest. The above ruling acted as guidelines for us. If complainant is not getting possession of booked flat in time, remedy available for him is to ask for refund of amount. Nothing is on record to hold that opponent was ready and willing to handover legal possession of the booked flat with necessary amenities within stipulated period as per agreement to the complainant. Complainant may exercise option of refund of amount together with interest. 

Therefore relying upon the materials on record we have no hesitation to hold that the complainant is entitled to an order of getting the delivery of possession of the flat in question followed by execution & registration of deed of conveyance  in favour of him. Since the landowner as well as well as developer did not take appropriate steps for delivery of possession followed by execution of sale deed in favour of the complainant within the time period from the date of payment as per terms of the agreement, it has caused tremendous mental agony and pain to the complainant.

On evaluation of materials on record it is quite apparent that the complaint being consumer hired the services of the opposite parties in a disputed housing construction and the opposite parties particularly the opposite party no.1 has failed to keep their promise in handing over the flat as per commitment on favour of the complainant within the stipulated period and thereby deficient in rendering services within the meaning of section 2(1)(g) read with section 2(1)(o) of the Act. In the premises complainant is entitled to some reliefs. In our view, considering the facts and circumstances an order directing the opposite party no.1 to hand over the possession and to execute the sale deed in favour of the complainant within 45 days after receipt of balance consideration amount will meet the ends of justice, in default the opposite party no.1  shall refund the amount of Rs.14,60,000/- along with the compensation in the form of simple interest @9% p.a. from the date of each payment till its realization will meet the ends of justice. Under compelling circumstances the complainant have to come up in the Forum/Commission for which he is entitled to litigation costs which we quantify at Rs.10,000/-.  

Going by the foregoing discussion hence it is ordered that the complainant abled to prove the deficiency of service of the opposite party in respect of delivery of possession and execution & registration of the impugned flat  by adducing cogent document/evidence so the prayer of the complainant is allowed on contest. However considering the facts and circumstances there is order as to cost. With the abovementioned observation the complaint petition is thus disposed of accordingly.

 Hence, ordered that the complaint case being No.153/2016 be and the same is allowed ex parte against the opposite party with a litigation cost of Rs. 10,000/- to be paid by the opposite party No.1.

            The Opposite Parties are directed to handover possession and to execute and register the  deed of conveyance in favour of the complainant in respect of property as mentioned in the schedule of the petition of complaint in terms of agreement for sale dated 01.8.2012 within 45 days  from the date of passing this order after receiving balance consideration amount failing which the opposite party No. 1 is directed to refund the amount of Rs.14,60,000/- along with compensation in the form of simple interest @9% p.a. from 2.8.2012 till its total realization.

            At the event of failure to comply with the order the Opposite Party  shall pay cost @ Rs.50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the  Consumer Legal Aid Account.

            Let a plain copy of this order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information & necessary action.