SHYAMAL KUMAR GHOSH, HON’BLE MEMBER
The complainant has filed the instant Consumer Case against the ops praying for delivery of possession, compensation and cost.
The brief fact of the case is that the ops entered into a development agreement dated 29/03/2010 with the landowners. After execution of development agreement, the ops 2 and 3 obtained power of attorney from the landowners and started a construction of flat (G+4) after obtaining sanction plan from KMC. Thereafter, the complainants approached the ops for purchasing a flat of 1150 sq.ft on the 4th floor being flat no 07 along with car parking space measuring area about 100 sq.ft in the ground floor of the said flat with a consideration amount of Rs. 38,00,000/-. An agreement for sale has been executed between the ops and the complainants in the year 2012. The complainants paid full consideration amount of Rs. 38,00,000/- to the ops and after receiving the same the Deed of Conveyance has been executed and registered in favour of the complainants on 01/08/2012 in the office of ADSR, Alipur. But the ops did not handover the peaceful possession of the said flat to the complainants. The complainants on several occasions requested the ops to hand over the possession of the said flat but the ops prayed for further time on various flimsy grounds. The complainants further requested the ops for delivery of the subject flat along with car parking space through the various letters. But the ops kept mum. There is a gross negligence and deficiency in service on the part of ops. Hence the case.
The ops contested this case by filing written version stating inter alia that the ops developers finished the extra works as per advise of the complainants and the ops requested the complainants to take the possession of the said subject flat. But the complainants did not take the possession of the said flat due to some defects in internal fittings and accessories. There is no fault or deficiency in service on the part of ops and as such the instant consumer case is liable to be dismissed with cost.
At the time of hearing ld counsel for the complainants submitted that the Deed of Conveyance has already been executed and registered in favour of the complainants but the ops have failed to deliver the peaceful possession to the complainants causing gross negligence and deficiency in service on the part of ops.
At the time of hearing ld counsel for ops submitted that due to some internal problems between the developers and landowners, they are interested to refund the amount of consideration to the complainants instead of delivery of possession of the said subject flat.
We have heard the ld. Advocates for both sides. Considered their submissions and perused the materials on records.
Before the explaining the other issues involved in the complaint case, we try to decide whether the instant complaint case falls well within the purview of Consumer Protection Act or not as well as whether there is any gross negligence or deficiency in service on the part of ops or not in the instant case.
It is admitted that in the year 2012 an agreement for sale has been executed between the parties to the case in respect of sale/purchase of flat measuring area 1150 sq.ft on top floor, South West facing being flat no 07 along with car parking space under the roof of the said building wherein the complainants, Sri Debasish Sarkar as a constituted attorney of landowners as well as a developer made their respective signatures on the said document and to that effect the total consideration amount of Rs. 38,00,000/- only has been fixed which is clearly revealed from the Agreement For Sale in the year 2012 (Anx-A).
It is also admitted fact that the Deed of Conveyance has already been executed and registered on 01/08/2012 in favour of the complainants in respect of self contained complete residential flat (marble) on the 4th floor, South West facing measuring area 1150 sft along with open car parking space measuring area about 100 sft which is revealed from the Deed of Conveyance being no-6197/2012 executed and registered in the office of ADSR, Alipore dated 01/08/2012.
The Memo of Consideration of the deed of conveyance in page no-11 clearly reveals that the ops received a sum of Rs. 38,00,000/- from the complainants in full and final consideration against the second schedule “B” flat along with car parking space.
The letter dated 23/03/2015 (ANX-D) reveals that the complainants requested the ops to handover the physical possession of the subject flat but the ops, after execution and registration of the deed of conveyance, have failed to handover the peaceful possession of the flat to the complainants till date causing negligence and deficiency in service on the part of the ops. Accordingly there is no hesitation to hold that the ops are to be treated as service providers and as such the complainants come well within the purview of the definition of the consumer/consumers as per Consumer Protection Act. It is the primary duty of the Commission to look into the interest of the consumers otherwise the object of the said Act is to be frustrated which will cause gross injustice to the consumers in our society.
Keeping in view of the above observations, we allow the petition of complaint on contest and the ops are directed to handover the peaceful possession of the subject flat along with car parking space as per registered deed of conveyance to the complainants within 30 days from the date of this order and they are further directed to pay litigation cost of Rs. 5000/- to the complainants within the stipulated period of time , in default, the complainants shall have liberty to put the case in execution for getting their relief/reliefs.
