Hon’ble Mr. Ajeya Matilal, Presiding Member

          In the instant complaint u/s 17 (1) (a) read with section 1(I)r of the Consumer Protection Act 1986 the Complainants prayed for a direction upon the Opposite Parties to hand over peaceful possession of the Scheduled flat and Completion Certificate with an alternative prayer for refund of Rs.46,50,000/-, the agreed consideration amount, registration cost including stamp duty and payment of compensation of Rs.10,00,000/- and litigation cost of Rs.50,000/-.

         The Complaint Case is in short like that Complainants are consumers, the Opposite party No. 1 to 3 are the developers and the Opposite Party Nos. 4 to 7 are land owners in respect of scheduled property. The aforesaid landowners and the developers entered into a development agreement on 22.09.2012 and accordingly the developers (Opposite Party Nos. 1 to 3) started construction of a multi-storeyed building consisting of several flats and car parking space on the basis of the said agreement. The Complainants being local inhabitants approached the Opposite Party Nos. 1 to 3 for allotment of a flat with car parking space.

          So, an agreement for sale was executed between the complainants and the Opposite Parties on 15.11.2017. So, according to the Complainants the aforesaid Opposite Parties are service providers. The agreed price for purchase of the said flat measuring about 1100 sq. ft. super built up area along with one car parking space measuring about 100 sq. ft. was Rs.46,50,000/-. The Complainants paid Rs.9,30,000/- as booking amount and the Opposite Party Nos. 1 to 3 duly acknowledged the same through their receipts. As per the agreement for sale, the Opposite Party Nos. 1 to 3 would hand over the vacant complete flat as per schedule within 90 days from the date of signing of agreement. In default, they shall refund the entire amount. After making payment of the booking amount the Complainants approached IDBI Bank for home loan and the Bank after verification and searches through their lawyers approved loan of Rs.37,20,000/-. The aforesaid amount was paid to the Opposite Parties concerned directly by the Bank.

           After getting the total payment of agreed upon price the Opposite Party Nos. 1 o 3 insisted the Complainants to execute a deed of conveyance before taking possession. Accordingly, on 30.11.2017 a deed of conveyance was executed and registered in favour of the complainants on 30.11.2017, although symbolic possession was delivered, but no physical possession was delivered to the complainants. The Opposite Party Nos. 1 o 3 stated to the Complainants after completion of the process of registration that some minor works are required to be done by them and thereafter the possession letter along with the Completion Certificate will be delivered to the Complainants. But, in spite of that the Opposite Parties failed and neglected to hand over the physical possession of the same to the Complainants. The Opposite Party Nos. 1 to 3 handed over the possession letter on 25.01.2019. So, according to the complainants although the flat was in a habitable condition, but the Opposite Party did not deliver the same to the Complainants.

         The Complainants were under the impression that the Opposite Parties are trying to sell the flat to any third party. The complainants made correspondence through email with the Opposite Parties requesting them to deliver the possession of the same. But it did not yield any positive result. So, the complainants filed this case.

         Initially, the Opposite party No. 4 contested the case. According to them, the aforesaid Opposite Party with other landlords executed a Power of Attorney in favour of the OP Nos. 2 & 3, the partners of M/s. Millennium India Constructions, the developers therein. The said Power of Attorney was executed on 22.09.2012. On the basis of the aforesaid power of attorney the flat, in question, was duly registered in favour of the Complainants. But subsequently they did not contest the case.

          The other of the Opposite Parties did not appear in spite of service of notices. So, the case proceeded ex-parte against all of them.

          The Complainant Soumick Das adduced his evidence by way of affidavit in chief on behalf of himself and other Complainants. The Opposite Party No. 4 put some questionnaire against that evidence on chief and the Complainants gave replies to such questionnaire. But he did not file any evidence and did not contest the case subsequently. The other Opposite Parties did not contest the case. They did not file any Written Version. So, the case proceeded ex-parte against all the Opposite Parties.

      Perused the evidence along with the documents filed by the Complainants. The copy of agreement for sale is annexure ‘A’, wherefrom it appears that the total consideration money was Rs.46,50,000/-. Annexure ‘B’ is the photocopies of money receipts granted by the developer on acceptance and acknowledgement of those cheques. Annexure ‘C’ is the deed of conveyance, which was executed on 30.11.2017. It appears from the Memo. of consideration that a total sum of Rs.46,50,000/- was received by the developer.

         The letter of possession is annexure ‘D’, wherefrom it appears that the possession was delivered to the complainants. But according to the complainants although the letter of possession dt. 25.01.2019 was issued in their favour, but they did not get the physical possession of the same.

         The cause of action of the complaint arose on 15.11.2017 i.e. from the date of agreement for sale, thereafter on 30.10.2017, the date of registration of deed of Conveyance and on 25.01.2019, on which day oral possession was given. So, the case has been filed within the period of limitation.

         So, it appears from the discussion that the Complainants are the consumers. Opposite Party Nos.1 to 3 are the developers and there is deficiency in service on the part of the Opposite Parties. But as the deed of conveyance was executed in respect of the said flat, so, the alternative prayer for refund of the consideration money cannot be entertained.

          So, the case succeeds.

          Hence it is

Ordered

          The Complaint Case No. 425 of 2019 is allowed ex-parte against the Opposite Parties with a litigation cost of Rs.30,000/-, payable by the Opposite Party Nos. 1 to 3. All the Opposite Parties are directed to hand over the possession of the flat mentioned in the second schedule of the complaint within 90 days from this Order. The Opposite Party Nos. 1 to 3 are directed to pay compensation of Rs.2,00,000/- to the Complainants within the aforesaid stipulated period, failing which the complainants will be at liberty to put the Order into execution through the machinery of this Commission.