Sri Subhra Sankar Bhatta, Judicial Member

1. The instant complaint case u/s 17 of the Consumer Protection Act,1986( In short “the Act”) is at the instance of the Complainant against the Developers/Builders/OPs and Land Owners on the allegations of deficiency in service and unfair trade practices on the part of the OPs in a consumer dispute of housing construction.
2. In a nutshell, the case of the Complainant is that the Complainant is a service man (Defense Personnel) attached to Military Engineering Services (MES) and the Complainant no. 2 is the wife of the Complainant no.1.  The Complainants with an intention to purchase a residential flat in and around the City of Kolkata were in search of a suitable accommodation.  The Complainants came to know from one of the relatives regarding the upcoming development project being constructed by OP nos. 1, 2, 3 consisting of several residential flats at Naktala, KMC Premises No. 255/22, N. S. C. Bose Road, P.O.-Naktala, Police Station-Netajinagar, Kolkata-700047.
3. It is further case of the Complainants that on inspection of the upcoming project Complainants intended to purchase residential flat at the said building under construction and accordingly entered into an agreement for sale dated 10.09.2015 by and between the developers and the land owners of the premises in question. On negotiation with the developers who were the constituted attorney of the Opposite Party Nos. 4 to 9 for one self contained residential flat measuring about super built up area of 1250 Sq.ft more or less on the second floor northeast-south facing comprising of (3) three bed rooms 1 (one) dining cum drawing, 02 (two) toilets, 01 (One) kitchen, 01 (One) balcony having marble flooring along with one open car parking space measuring about 100 sq.ft. more or less on the ground floor of the G+VI storied building together with undivided proportionate impartible share and interest in the land of the said premises.
4. It is the further case of the Complainants that they obtained a home loan amounting to Rs. 14,00,000/- from IDBI Bank and the EMI for the said loan was fixed at Rs. 18,501/- per month.  At the call of the Opposite Party Nos. 2 and 3 the Complainants arrived at Kolkata for the purpose of receiving possession of their flat in complete and habitable condition and also for the purpose of registration. It has been candidly contended that the Complainants had paid the entire consideration sum amounting to Rs. 21,85,000/- to the developer at the time of registration and on receiving the said amount the OP Nos. 1 to 3 acknowledged the same at the memorandum of consideration attached to the registered deed of conveyance.
5. Further case of the Complainants is that since registration of the deed of conveyance dated 16.09.2015 the Complainants had been continuously pursuing the developers for handing over delivery of possession of the flat in question along with car parking space over phone as Complainant was transferred and posted from one place to another. It has been categorically contended that the developers extended the time of delivery from time to time on different pretext. It has been alleged that despite lapse of more than three years from the date of registration of the said flat in question the developers are reluctant to hand over the possession of the flat in question. Finally, the Complainant requested the developers to hand over the flat in question on completion of inner paintings. It has also been contended that the Complainants also requested the developers to arrange an inspection of the said flat by their relative at Calcutta and further requested to hand over a set of key of the flat to the said relative. Furthermore, by way of a letter dated 05.09.2018 the Complainants requested the developer to issue possession letter and to arrange the delivery of possession preferably within first or second week of November, 2018. At that relevant point of time Complainant No. 1 was posted at Kheria, Agra.
6. It is the further case of the Complainants that on receiving the said letter OP Nos. 1 to 3 by a letter dated 11.11.2018 asked the Complainants to take back the consideration money paid by them from the office of the developer on the false plea of creating illegal and wrongful issues with the developers on regular intervals. It has been alleged that the developers deliberately with some malafide intention did not explain the nature of disputes and issues raised by the Complainants.
7. On receiving the letter dated 11.11.2018 from the developers the Complainants were flabbergasted with the contention of the said letter. Finding no other alternative the Complainants were compelled to file the complaint case before the Hon’ble State Commission for Redressal. Before filing the complaint a legal notice was sent to the Opposite Parties on 13.02.2019 but the OPs did not take any positive steps regarding delivery of the flat in question along with car parking space within stipulated period. According to the Complainants they are consumers and hired a house by paying consideration amount to the OPs which certainly comes under the purview of the meaning consumer as contemplated in the act and the OPs are the service provider as they promised to provide housing service on receiving the consideration amount. The Complainants have prayed for relief as sought for in the prayer portion of the complaint petition.
8. Despite service of notice the OPs did not turn up to contest the consumer complaint case. Consequently, the present complaint case was heard ex parte against the OPs.
9. During the course of trial the Complainants have filed examination-in-chief of Sri Susanta Kumar Dey, Complainant No. 1. In addition to such oral testimony the Complainants have also adduced and marked the Xerox copy of agreement for sale dated 10.09.2015, Xerox copy of the deed of conveyance dated 16.09.2015, Xerox copy of notice dated 05.09.2018 issued by M/s. Millennium India Construction to the Complainant, Xerox copy of letter dated 11.11.2018 sent by the Complainants to M/s. Millennium India Construction and the legal notice dated 13.02.2019 sent by the Ld. Advocate of the Complainants to the OPs as Exhibits Nos. A, B, C, D and E respectively.
10. The overwhelming and unchallenged testimonies on record makes it abundantly clear that the Complainant entered into an agreement for sale with the OPs on 10.09.2015 and the same was subsequently registered on 16.09.2015 for the purpose of purchasing flat in question measuring super built up area 1250 sq.ft. more or less, on the second floor, North-East-South facing comprising 3 bed rooms, one dining cum drawing, two toilets, one kitchen, one balcony along with one car parking space together with undivided proportionate share or interest on the land and building lying and situates at the KMC premises No. 255/22 N.S.C Bose Road Naktala (Scheme—II) Post Naktala P.O, P. S Netajinagar Ward No. 100 Kolkata—700047. It is also evident from the evidence on record that the Complainants paid the entire consideration money amounting to Rs. 21,85,000/- more particularly described at page 11 of the deed of conveyance.
11. Undoubtedly, the OPs undertook to complete the proposed construction within the stipulated period as agreed but the OPs failed to deliver the possession of the flat in question to the Complainants despite lapse of more than three years from the date of registration of the flat in question. It is apparent from the evidence on record that the proposed construction of G+IV four storied building has already been completed but the developers did not hand over possession of the flat on the ground of creating illegal issues by the Complainants. The Complainants have prayed for getting possession of the flat in question from the OPs in complete and habitable condition without any further delay. Practically, we do not find any reason to disbelieve such unchallenged testimonies adduced from the end of the Complainants.
12. The facts and circumstances and the materials on record more particularly relying on the evidence of the Complainants it is palpably clear that the OPs could not keep their promise and as such they are deficient in rending services towards. In our considered view the complainants are entitled to get relief as sought for.
13. Thus, the complaint case should be allowed.
14. Considering all aspects from all angles and considering the oral and documentary evidence adduced from the end of the Complainants we have no hesitation to come to the irresistible conclusion that the Complainants are entitled to get possession of the flat in question.
15. In the result, consumer complaint case filed by the Complainant Succeeds.

16. It is, therefore,

O R D E R E D

That the Consumer Complaint Case being no. CC/181/2019 be and the same is allowed ex parte against the OPs. The OPs are hereby directed to hand over the flat in question in a habitable and complete condition to the Complainants within one month hereof. The OPs are also directed to pay a sum of Rs. 1,00,000/-(One Lakh only) to the Complainants as compensation towards harassment and mental agony. The OPs are further directed to pay a sum of Rs.25,000/-(Twenty Five Thousand only) to the Complainants as litigation costs. The payment in terms of this order shall be made within three months hereof failing which the Complainants are at liberty to put the order in execution.

Let a plain copy of this judgment be handed over to the Complainants free of cost and a copy of this judgment also to be served upon the OPs through Registered post/Speed post from this Commission as expeditiously as possible.

Note accordingly.