MR. SHYAMAL KUMAR GHOSH, MEMBER

The instant consumer case has been filed )  by the Complainant against the opposite parties (OPs  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 amount already paid by the complainant  alongwith interest.

The factual matrix of the case is that OP No. 1 is a partnership firm.  OPs No. 2 & 3 both are partner 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.   The complainant  has intended to purchase one new flat alongwith modern facilities  near South Kolkata . An agreement for sale dated 22.10.2008  has been executed by and between the parties herein  for purchasing of the flat on the 2^nd  floor, South West facing , Block B measuring about 900 sq.ft. alongwith car parking space  at a consideration price  of Rs. 13,50,000/-.  It was expressly agreed and mentioned in the said agreement that the opposite parties shall deliver the said flat within a period of 730 days . However,  on 18.10.2009 when the complainant visited the opposite party to pay Rs. 4 lakhs, he was offered by the opposite parties a bigger 3 BHK flat measuring 1600 sq.ft. alongwith a car parking  space in place of the previous  2 BHK flat at a consideration of Rs. 22 lakhs which was subsequently increased to Rs. 30 lakhs. The said subject flat is situated at 2^nd floor South West facing in Block –C   measuring area1600 sq.ft. which was subsequently revised by an agreement dated 2nd August , 2012 .  The price was finalised at Rs. 13,50,000/- which was raised to Rs. 30,00,000/- for bigger flat  alongwith car parking space subsequently. Money receipt are at the page no. 29 to 32 of the complaint which clearly establishes that the complainant has already paid total consideration amount  Rs. 35,50,000/- to the developer.

As per agreement the opposite parties were supposed to provide the possession of the flat  to the complainant   within 730 days from the date of the agreement (clause no. 2 of the agreement dated 22.10.2008) which would be  within October, 2010.. But  they have  failed and neglected to provide the possession of the flat to the complainant  till date.  The complainant  has tried to contact with the OPs  in order to get the possession of the flat  but in vain.  Not only that the OPs have failed to obtain the completion certificate of the building  which is mandatory for all  newly constructed building in Kolkata Municipal Area.  There is a clear gross negligence and 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 was submitted by all OPs  within the stipulated  period of time before this Commission after availing the reasonable opportunities.   As such, the matter has been fixed for exparte hearing against them.

Ld. Advocate appearing for the   complainant  has  fairly submitted that the complainant has  intended to purchase one new flat alongwith modern facilities  near South Kolkata . An agreement for sale dated 22.10.2008  has been executed by and between the parties herein  for purchasing of the flat on the 2^nd  floor, South West facing , Block B measuring about 900 sq.ft. alongwith car parking space  at a total consideration price  of Rs. 13,50,000/-. It was expressly agreed and mentioned in  the said agreement that the opposite parties shall deliver the said flat within a period of 730 days . However,  on 18.10.2009 when the complainant visited the opposite party to pay Rs. 4 lakhs, he was offered by the opposite parties a bigger 3 BHK flat measuring 1600 sq.ft. alongwith a car parking  space in place of the previous  2 BHK flat at a consideration of Rs. 22 lakhs which was subsequently increased to Rs. 30 lakhs. The said subject flat is situated at 2^nd floor South West facing in Block –C measuring area 1600 sq.ft. which was subsequently revised by an agreement dated 2nd August, 2012 . The  price was finalised at Rs. 13,50,000/- which was raised to Rs. 30,00,000/- for bigger flat alongwith car parking space subsequently. Money receipt are at the page no. 29 to 32 of the complaint which clearly establishes that the complainant has already paid total consideration amount  Rs. 35,50,000/-.

As per agreement the opposite parties were supposed to provide the possession of the flat  to the complainant  within 730 days from the date of the agreement (clause no. 2 of the agreement dated 22.10.2008) which  would be within October, 2010.. But  they have  failed and neglected to provide the possession of the flat to the complainant  till date.  The complainant  has tried to contact with the OPs  in order to get the possession of the flat  but in vain.  Not only that the OPs have failed to obtain the completion certificate of the building  which is mandatory for all  newly constructed building in Kolkata Municipal Area.  There is a clear gross negligence and deficiency in service on the part of the opposite parties . Accordingly, Ld. Advocate appearing for the Complainant has prayed for refund of consideration amount.

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

We have heard the Ld. Advocate appearing for the complainant  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.

Upon careful perusal of the agreement for sale dated 22.10.2008 ,  it appears to us that  Shri Samar Das has entered into aforesaid agreement with the developers  and the landowners in respect of purchasing  newly constructed flat measuring a super built up area about 900 sq.ft.  more or less on the 2^nd  floor, South West facing Block B  together with undivided proportionate share   and interest of the land  alongwith  car parking space  and common facilities like lift, generator and other civic amenities. 

We have carefully perused  revised agreement for sale dated 02.08.2012 wherefrom it appears to us that  as per discussion  it has been settled amicably  that Shri Samar Das is entitled to get 2^nd floor, South West facing three room flat at Block-C. It also appears to us  that some rectification and modification and have been made  which are as follows :

1. The measurement 900 sq.ft.  shall be substituted  and read  over as 1600 sq.ft.
2. Block B shall be substituted by Block C.
3. The consideration amount of Rs. 13,50,000/- shall be substituted and read over as Rs. 25,00,000/-.
4.  The flat means a super built-up area measuring about 1600 sq.ft. consisting of three bedrooms, one living-cum-dining room, one kitchen, two toilets, one W/C  and three balconies on the 2^nd floor at South West corner of Block C  building alongwith undivided proportionate share of land and building at premises no. 237 , N.S.C. Bose Road , Kolkata – 700 047 with all common facilities like lift, generator, etc.
5. In consideration of aforesaid circumstances, the developer  has agreed to sell and the purchaser has also agreed to purchase. All that  the flat on the 2^nd floor, South West facing of Block C measuring super built-up area about 1600 sq.ft. more or less.
6. Mr. Das/complainant will be allotted a open car parking space  under the Block C for extra payment of Rs. 2,00,000/-.

Upon careful  perusal  of the money receipt,  it appears to us that  the complainant has made   the following payments :

In pursuant to the above  table , it is crystal clear that  the complainant has already paid Rs. 35,50,000/- to the OPs/developers and to that effect the developers issued the various money receipts in favour of the complainant. So, there is no hesitation to hold that  the complainant has paid the aforesaid consideration amount to the OPs /developers for purchasing the aforesaid flat in question and as such the complainant comes well within the purview of the definition of the consumer  as per section  2(d)(ii) of the Consumer Protection Act , 1986.

It is pertinent to mention here that the agreement for sale has been executed in the year 2008 between the parties and subsequently it has been rectified  and modified by executing a revised agreement for sale  dated 02.08.2012.  Now it is  the year 2023.  So, it is very unfortunate at the behest of the complainant  that after expiry  of long 11 years,  the OPs  have failed to deliver the possession of the flat in question, to the complainant   in habitable condition causing clear gross negligence and deficiency in service on the part of opposite parties.

Upon  careful perusal of the record,  , it is crystal clear to us that the OPs  No.1  to 3 have received the total consideration amount of Rs. 35,50,000/- from the end of the complainant  and as such  it should be  the bounded duties  of the OPs No. 1 to 3 to deliver the flat in question  to the complainant , but in vain.  From the detailed hearing  and upon  careful  perusal of the record, there is no hesitation to hold that  it is not possible at the behest  the OPs/developers to deliver the subject flat to the complainant  in habitable condition as the project work has totally failed.  It is the settled principles of law that the complainant  should not wait  for indefinite period of time to get the flat in question and the order of refund should be passed in order to meet the proper justice to the complainant .

The gross negligence and deficiency on the part of the OPs/developers  are hereby proved.  In this respect,  we can safely rely upon the decision  Suniti Kumar Bhat and others –vs- Unitech Acacia Projects Pvt. Ltd.  and others reported in  2018(3)CPR 795 (NC) wherein  the Hon’ble National Commission held that when the builder fails to construct  the flat on time, he is entitle  to pay compensation i the form of  interest and cost of litigation.  In this respect we  can depend upon another  remarkable  decision  FORTUNE INFRASTRUCTURE AND ANOTHER  VS TREVOR D’LIMA AND OTHERS REPORTED IN (2018) 5 SCC 442 wherein Hon’ble Apex Court held that a person cannot be made to wait indefinitely for possession of the flat allotted to him and is entitled to seek refund  of amount paid by him alongwith compensation.

It is not last but least that the allegations against the OPs  clearly stated  in the petition of complaint remain  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 complainant  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 complainant .

Keeping in view of above observations and finality of the litigation, there is no hesitations to hold that there is a clear gross negligence and deficiency in service on the part of OPs 1 to 3 and accordingly we allow the instant CC case exparte against OPs  1to 3 with cost and dismiss the same exparte against the OPs 4 to 7 without any order as to cost.

Hence,

It is

                                                      ORDERD

That the OPs No. 1 to 3 /developers are directed to refund of Rs. 35,50,000/- (Rupees thirty-five lakhs fifty thousand) only   to the complainant  within 60 (sixty) days from the date of this order  alongwith interest @ 9% p.a. (in the form of  compensation )  from the date of each payment till full realisation.

That the OPs No. 1 to 3/developers are further directed to pay litigation cost of Rs. 20,000/- ( Rupees twenty thousand) only to the complainant  within the aforesaid stipulated period of time , in default the awarded amount   shall carry interest @ 9% p.a. till full realisation.

No order is passed against the OPs No. 4 to 7 /landowners  as they did not receive  any consideration amount from the end of the complainant.

In case of non-compliance of the order by the OPs No. 1 to 3 /developers, the complainant  is at liberty to put the final order in execution.

The instant CC case is, thus, disposed of .

Note  accordingly.

Let a copy of this order  be supplied to the parties free of cost.