MR. SHYAMAL KUMAR GHOSH, MEMBER

The instant consumer case has been filed against the opposite parties (OPs)  by the Complainant praying for delivery of the completion certificate, handing over possession of the subject flat, execution and registration of deed of conveyance, compensation  and litigation cost alternatively praying for refund of entire consideration  already paid by the complainants alongwith interest.

The factual matrix of the case is that OP No. 1 is a partnership firm.  OPs No. 2 & 3 both are partners of the OP No. 1 and OPs No. 4 to 7 are the landowners. Be it mentioned here that the OPs No. 5,6 & 7 are the legal heirs of Amitrajit Chakraborty who was the owner of land alongwith OP No. 4, his brother.   The complainant  has intended to purchase one new flat alongwith modern facilities  near South Kolkata.  It is verbally mentioned that all modern facilities including gym, community hall, etc.  would be provided by the opposite parties being the developer as per West Bengal Building ( Regulation of Promotion of construction and transfer by promoters) Act, 1993.  It is specifically stated that the complainant being a family man  a community hall was very essential in modern life and accordingly the complainant has decided to purchase one flat from the opposite parties. Thereafter having been impressed by the location, layout and price of the schedule mentioned flat, the complainant, after negotiations with the opposite parties has decided to purchase the flat situated in the first floor , South West side measuring about 850sq.ft. alongwith car parking space measuring about 100 sq.ft. on the ground floor situated at 35B/1,Naktala Main Road, Kolkata- 700 047 at a total consideration of Rs.26,00,000/-.  The complainant has paid the entire consideration amount and accordingly a deed of conveyance dated 05.01.2016 has been executed and registered in favour of the complainant. It is the further case of the complainant that  he has taken a loan amount of Rs. 20,00,000/- from IDBI Bank for the purpose  of  purchasing a flat.  It is pertinent to mention here that the IDBI Bank Ltd. had already disbursed  the loan amount of Rs. 20,00,000/- and the balance amount of Rs. 6,00,000/- has been paid by the complainant to the OPs/developers and to that effect the OPs/developers have acknowledged the same and issued  the receipts in favour of the complainant.  The opposite party, thereafter, has failed to handover the possession of the subject flat to the complainant.  A long passage of time about three (03) years has already been elapsed and as such the complainant has become frustrated.  The opposite parties/developers have informed the complainant that the subject flat is highly related with the matter of litigation and as per the order of competent civil court, the opposite parties/developers could not handover the subject flat to the complainant and alternatively the opposite parties have  requested the complainant to take another flat under the KMC area of premises no. 237, NSC Bose Road, Kolkata- 700 047. The complainant has paid the consideration amount of Rs. 26,00,000/- to the OPs/developer in respect of purchasing the aforesaid flat.  After inspection of the premises no. 237, NSC Bose Road, Kolkata – 700 047, the complainant has found that the opposite parties/developers had constructed a structure of a residential building after having sanctioned from the KMC and they have further represented that  they would be in a position  to complete the aforesaid building with two (02) months hereof.  On the basis of such assurance, the complainant has agreed to take alternative flat measuring a super built up area of 1150 sq.ft.  more or less on the second floor South West facing  being flat no. ‘B’ Block, South West alongwith one car parking space measuring area about 100 sq.ft. But the opposite parties/developers have demanded some extra amount of money which the complainant  has initially refused and then the opposite parties have agreed to adjust it  with the price of previous flat.  Accordingly, as per the dictum of the opposite parties  another deed of conveyance  dated 28.03.2018 has been executed and registered through Commission. The whole process has been arranged by the opposite parties/developers in respect of the flat measuring area 1150 sq.ft. situated  at the second floor South West facing alongwith car parking space of 100 sq.ft.  The opposite parties/developers have agreed to show the consideration amount of the subject flat which would be Rs. 35,00,000/- only.  It is pertinent to mention here that the opposite parties/developer have adopted unfair trade practice and tried to mislead the consumer. Upon careful searching, the Office of Registrar of Assurance with the copy of original deed , it is revealed that the deed of conveyance which has already been delivered and handed over to the complainant becomes a forged instrument/ document.  It has not been registered in the Registry Office.  Thereafter, the opposite parties have persuaded the complainant to sign another deed of conveyance dated 19.12.2018 and got the same register for purchasing of the flat measuring 1150 sq.ft. situated at the second floor South West facing alongwith car parking space of 100 sq.ft. The price of the subject flat has been determined at Rs. 35,00,000/- and which has been adjusted from the price of the previous flat.  Possession letter dated 19.12.2018 has been delivered to the complainant.  Though the OPs have received the full  consideration/money towards the total consideration of the subject flat , it is revealed that the subject flat is totally in habitable condition and just  50%  works have been completed.  It is fact that though the possession letter has been issued in favour of the complainant yet the OPs have failed to provide actual possession of the subject flat to the complainant. On several occasion, the complainant has contacted with the OPs but no fruitful result has been come out from their end. The complainant has filed a general diary with the local Police Station to that effect.  The complainant is suffering immense mental pain and agony as the complainant is not in a position to enjoy the aforesaid flat alongwith car parking space.  It is also fact that the complainant is paying EMI of Rs. 21,00,187/- to the bank for such loan every month.   There is a clear gross negligence, deficiency in service on the part of the opposite parties and having no other alternative, the complainant has knocked at the door of this Commission for getting proper relief/reliefs as prayed for against the opposite parties.

No written version  has been submitted by the OPs before this Commission after availing the opportunities to file the same  and accordingly the case has been fixed for exparte against them.

Ld. Advocate appearing for the complainant  has fairly submitted that the complainant  after negotiations with the opposite parties  has decided to purchase    one newly constructed residential flat  measuring are 850 sq.ft. alongwith the car parking space at a total consideration of Rs. 26,00,000/- . Accordingly, a deed of conveyance has been executed and register on 05.01.2016 in favour of the complainant. Total consideration amount of Rs. 26,00,000/- has already been paid and apart from this amount the complainant has further paid Rs. 2,34,000/- towards stamp duty and other fees.  The long time of three years has already been elapsed.  But the subject flat has not been delivered.  The opposite parties could not handover the said flat to the complainant within the stipulated period of time as the said subject flat is highly related with a litigation matter. The opposite parties alternatively have requested the complainant to take another flat within the jurisdiction  of KMC premises no. 237, N.S.C. Bose Road, Kolkata – 700 047.  After inspection of the said premises, the complainant has found that the OPs were not in a position to complete the flat within a period of two months.  Moreover the opposite parties have  demanded extra amount of money. But the complainant has initially refused to take the same  and thereafter the opposite parties have agreed to adjust the same with the price of the previous flat.  The another deed of conveyance dated 28.03.2018 has been executed and registered through Commission arranged by the opposite parties at the office of OP in respect of flat measuring are 1150 sq.ft. situated at the second floor South West facing alongwith car parking space of 100 sq.ft.  But the said deed is actually forged one as  the said deed has not been registered in the office of the Registry Office. When the aforesaid forgery of the opposite parties was detected , the OP had thereafter persuaded the complainant to sign another deed of conveyance dated 19.12.2018  and the price of the said flat was determined at Rs. 35,00,000/-.  But the memo of consideration already establishes that the complainant has paid  Rs.26,00,000/-. Accordingly Ld. Advocate appearing for the complainant has prayed for refund of the consideration amount already paid by the complainants alongwith interest.     

At the time  of final hearing none appeared  on behalf of  the opposite parties.

We have heard the Ld. Advocate appearing for the complainants at length and in full.

We have considered the submission  of the Ld.  Advocate.

We have meticulously perused  all materials available on the record.

The final hearing has been concluded.

The record reveals that on 05.01.2016 a deed of conveyance has been executed and registered in favour of the complainant/purchaser in respect of one self contained flat measuring about super built up area 850 sft more or less on the first floor (marble) south-west facing and one open car parking space on the ground floor including undivided proportionate share or interest in the land of the premises at a total consideration amount of Rs.26,00,000/-. After execution and registration of the aforesaid deed of conveyance, the long three years have  already been elapsed but the subject flat has not been delivered to the complainant. In this respect the actual fact reveals from the petition of complaint that the aforesaid flat could not be handed over to the complainant as the subject flat was under litigation. The opposite parties, under such situation, have requested to take another flat.

To the above effect another deed of conveyance dated 28.03.2018 has been executed and registered in favour of the complainant/purchaser through commission arranged by the opposite parties at their office premises in respect of flat measuring area 1150 sft situated at the second floor south west facing along with car parking space of 100 sft. But the same is alleged as a forged deed which is clearly revealed from the petition of complaint. The petition of complaint clearly reveals that the complainant has searched the office of the Registrar of
Assurance with the copy of the original deed of conveyance and it has come to know that the aforesaid deed is a forged one as there was no such record in the registry office.

Thereafter,  at the third time a deed of conveyance dated 19.12.2018 has been executed and registered in favour of the complainant/purchaser in respect of one self contained residential flat measuring about super built up area 1150 sft more or less, on the second floor (marble) South-West facing along with one open car parking space measuring area 100 sft together with undivided proportionate share of land at the Kolkata Municipal Corporation premises no 237, N.S.C Bose Road PO Naktala, PS Jadavpur (now Netaji Nagar) under ward no – 100, Borough no. X, Kolkata 700047, in the District of south 24 Parganas at a consideration price of Rs.35,00,000/-.

In pursuant to the above discussion it is crystal clear to us that there is no chance to get the possession of flat in question at the behest of the complainant as per deed of conveyance dated 05.01.2016 and 19.12.2018 on the ground stated herein above.

Having heard the ld advocate and upon careful perusal of the record it is evident that the ops have committed unfair trade practice against the complainant. Not only that they are deficient in service as after receiving the full consideration amount from the end of complainant, no possession of flat in habitable condition along with completion certificate has been delivered/given within the reasonable period of time. The deed of conveyance has already been executed and registered in the year 2018 and we are in the year 2023. The complainant has been suffering  from mental pain and agony since long. Be it mentioned here that the Consumer protection Act has been enacted for the benefit of the consumer/consumers and as such protection should be given to them from the hazardous goods and service. We think that there is a chance to get the possession of the flat in question at the behest of the complainant and to that effect in pursuant to the deed of conveyance dated 19.12.2018, the possession of the flat along with completion certificate should be delivered to the complainant in order to meet the proper justice to the purchaser/complainant. But in any way the order of refund should not be  passed by this Commission as the execution and registration of the deed of conveyance dated 19.12.2018 has already been completed in favour of the complainant.

In such situation we can safely rely upon the decision viz SANJAY KUMAR GUPTA VS KEBAL KISAHAN BARAN AND OTHERS reported in 2014 (3) CPR 236 (NC) wherein the Hon’ble NCDRC has been pleased to hold that Consumer Forum is primarily meant to provide protection to consumers and their claims cannot be defeated on technical grounds.

It is not last but the least that the allegations against the OPs  clearly stated  in the petition of complaint remains unchallenged as no written version has been filed by them in order to take the defence against the said petition of complaint.  Moreover, the OPs kept mum against the said allegations brought in the aforesaid consumer case filed by the complainants and accordingly there is no hesitation to hold that such silence clearly proves the negligence /fault on the part of the opposite parties/developers. 

No order should be passed against the  OPs No. 4 to 7/ landowners as  they did not receive any consideration amount  from the complainants.

Keeping in view of the above observations and for finality of litigation there is no hesitation to hold that the complainant is able to prove his case and the complainant is entitled to get the relief/reliefs against the ops/developers. Accordingly we allow the petition of complaint ex-parte against the developers/opposite parties 1 to 3with cost and the same is dismissed against the ops 4 to 7/land owners ex-parte without any order as to costs.

Hence,

It is

                                                     Ordered

That the developers/ops 1 to 3 are directed to handover the physical possession of the flat in habitable conditions mentioned in the schedule of the petition of complaint to the complainant within 45 days from the date of this order.

The developers/ops 1 to 3 are further directed to deliver the completion certificate to the complainant within the aforesaid stipulated period of time.

The developers/ops 1 to 3 are also directed to pay compensation of Rs.50,000/- (fifty thousand only)towards mental pain and agony and to pay litigation cost of Rs. 10,000/- (ten thousand only) to the complainant within the aforesaid stipulated period of time in default the whole awarded amount shall carry interest @ 8 % pa till full realization.

In case of non-compliance of order by the ops/developers 1 to 3, the complainant is at liberty to put the order in execution.

No order is passed against the ops 4 to 7/land owners as no consideration amount is received by them from the end of complainant.

The petition of complaint being no – CC/939/2019 stands disposed of as per above observations.

Note in the register.