Hon’ble Mrs. Soma Bhattacharjee, Member
Today is fixed for delivery of judgment. The complainant Smt. Shasikala Agarwal has filed the case against OP no.1, M/s. GLOBAL CONSTRUCTION, a proprietorship firm, represented by the Proprietor Sri Ranjan Shadhukhan, and OP nos. 2, 4, 5, 6 and 7 who are the landowners. OP no. 3 expired before filing of the case.
To state the matter briefly, the complainant Shasikala Agarwal entered into a registered agreement with the OPs on 18.11.2009 for purchase of a flat of 700 sq. ft. on the first floor of the proposed building at the Municipal Premises, No. 54, BB Chatterjee Road, Kolkata 700042 along with proportionate land share. The consideration was fixed at Rs. 11,00,000/-.
The complainant paid part consideration of Rs. 9,10,000/-, Rs. 8,00,000/- and Rs. 1,10,000/- to the developer OP no. 1. Thus, Rs. 9,10,000/- out of Rs. 11,00,000/- has already been paid by the complainant to the proprietor OP no. 1, Ranjan Shadukhan. [Cash on different dates- Rs. 8,00,000/- ( as per registered agreement for sale)
Cash on 23.11.2009- Rs. 10,000/-
25.11.2009 Rs. 40,000/-
26.11.2009 Rs. 35,000/-
22.12.2009 Rs. 20,000/-
27.07.2011 Rs. 5,000/-]
Copies of the money receipts have been filed by the complainant.
As per the terms of the development agreement, the OPs were to hand over the possession of the said flat by April, 2010 but it was not done till the date of filing of the complaint. The terms of the development agreement also empower the complainant to claim interest at 12% per annum, on the consideration paid until the date of possession.
When after several notices and representations sent by the complainant to the Ops went unheeded, the complainant, Smt Agarwal filed this complaint case before SCDRC.
Following filing an interlocutory application by the complainant the OPs were directed by an interim order dt. 25.07.2019, not to create any third party interest in respect of the flat as per schedule.
Cause of action in this matter arose when the development agreement between both sides was registered on 18.11.2009 and is still prevailing.
OP no. 1 did not appear in this case despite being served upon with due notices. Therefore the case proceeded ex parte against OP no. 1. OP nos. 2, 4, 5 & 6 appeared and filed W.V and adduced evidence.
The complainant has adduced her evidence by way of affidavit. She also replied to the questionnaires put forward for cross examination by the OPs. There appears to be no inconsistency in her evidence.
Considered the evidence adduced by the complainant and OPs. Heard both sides and considered their submission.
The points for decision are as follows:
- Whether the complainant is a consumer?
- Whether there is a deficiency in service?
- Is the complainant entitled to get any relief/s?
The complainant has paid part consideration to the developer whereby she is a consumer according to the C.P. Act, 1986.
The developer was to hand over the suit property by April, 2020, which he has failed to comply with; Hence, there is deficiency of service on his part.
The complainant is entitled to get relief since she has not received service from the developer within the stipulated time period, as per registered agreement.
Hence the complaint case succeeds on contest.
It is ordered
The Opposite Parties are hereby directed to handover Khas possession of the flat as in the first and second schedule, in habitable condition with proportionate share of land, and also execute and to register a deed of conveyance in respect of the property within six months of the date of this order on payment of balance consideration amount of Rs. 1,90,000/- by the complainant. They will also provide copy of Completion Certificate to the complainant.
The Opposite Parties are hereby directed to pay a compensation @ 12% per annum on Rs. 9,10,000/- from 1st February, 2017 till the date of handing over of possession of the scheduled property after adjusting the balance consideration amount of Rs. 1,90,000/- yet payable by complainant. OPs will also pay Rs. 25,000/- to the complainant as litigation cost.
In case the OPs fail to comply with this order, the complainant will be at liberty to put this order into execution.
