SHRI SWAPAN KUMAR MAHANTY, PRESIDENT
This is an application u/s.35 of the C.P. Act, 2019.
Brief facts of the consumer complaint:-
The OP 1 is a company incorporated under the Companies Act, 1956 and engaged in Building Construction. OP-2 is carrying on business of Real Estate. OP-2 being the land owner executed a Development Agreement with the OP-1 and also registered a Power of Attorney in favour of OP-1 authorised them to development the property situated at Mouza HUDARAIT J L No. 54 Touzi No. 10 under Rajarhat PS. Complainants were looking for a suitable accommodation for their residential purpose and came to know that OP-1 will start a project named -EVANIE ECONEST-. Complainants approached the OPs to purchase a self content flat and one covered car parking space in the above noted project. They submitted an application bearing No. EEN004288 dated 30.03.2018 to the OPs in respect of the subject flat measuring about 1079 sq. ft. on the six floor (south west side) of the aforesaid project along with covered car parking space having an area of 134.5 sq. ft. on the ground floor of G+VIII Tower with undivided share of land including other common service areas and amenties. The price of the flat and garage was Rs 42,26,980/-. Complainants paid Rs 5,21,544/- to the OPs as application money for provisional allotment against money receipts and on Agreement for Sale dated 06.09.2018 was executed between the complainants with the OP-1. The complainants have already paid Rs. 10,56,057/- to the OP-1 out of total consideration Rs. 42,26,980/-. The OPs did not start construction of the proposed building. Despite several requests, the OPs failed and neglected to handover peaceful possession of the subject flat and garage on receipt of balance consideration amount. Having no alternative, Complainants requested the OPs to refund the part consideration amount of the subject flat and car parking space though the OP-1 promised to refund the part consideration amount by issuing a letter dated 18.02.2020.Ultimately, the OP-1 failed to keep their promise. Several correspondents were made between the parties but in vain. There is deficiency in service and unfair trade practice on the part of the OPs. Finding no other way out, the Complainants filed the present consumer complaint.
Despite service of notices of the complaint the OPs did not turn up to file WV. As such, the case has proceeded ex parte against the OPs vide procedural dated 30.11.2021.
Complainant No. 1 Shri Arup Sarkar has filed his evidence by way of affidavit supporting the allegations made in the complaint.
Complainants by way of un-contradicted testimony have proved that the OP-1 has entered into an Agreement for Sale dated 06.09.2018 with the Complainants in respect of the subject flat and garage and is supposed to handover the subject flat and garage to the Complainants within 40 months. Despite expiry of 40 months, the OP-1 did not deliver peaceful possession of the subject flat and garage to the complainants.
Complainants have also stated that they have paid Rs. 10,56,000/- out of total consideration of Rs. 42,26,980/- to the OP 1. Complainants have clearly stated that the OPs have filed to handover the subject flat including garage within the stipulated period. The OP-1 being the Developer has committed deficiency in service. As per Agreement for Sale dated 06.09.2018, the OP-1 is liable to sale the subject flat and garage to the complainants after receiving balance consideration amount . Therefore, we have no hesitation in concluding that the OP-1 has committed deficiency in service as also has indulged in unfair trade practice.
In view of the discussion above, the complaint is allowed with following directions:-
- The OP-1/Developer is directed to handover physical possession of the subject flat and garage to the complainants within 60 days from today after receiving balance consideration amount.
- The OPs are jointly directed to execute and register Deed of Conveyance of the subject flat and garage in favour of the complainants within 30 days from the date of handover possession of the subject flat and garage.
- Alternatively, the OP-1 is directed to refund Rs. 10,56,057/- to the complainants within 60 days from today along with compensation of simple interest at the rate of 10 percent per annum from the date of payment till the realization of the amount.
- OP-1 is directed to pay a sum of Rs. 5,000/- as cost of litigation to the complainants.
With the above directions the present consumer complaint stands disposed off.
Copy of the judgment be given to the parties as per rule and judgment be uploaded on the website of this commission for perusal of the parties.
