FINAL ORDER/JUDGEMENT
Smt. SAHANA AHMED BASU, Member,
The case of the Complainant in a nut shell is that, the complainant entered into an Agreement for Sale dated 09.08.2019 with the OPs for purchasing a self - contained flat on the 2nd floor, South – east side , measuring 1028 sq.ft more or less and one car parking space having 120 sq.ft on the ground floor by paying a sum of Rs. 19,27,000/- out of total consideration amount of Rs.26,15,000/- and the OPs issued receipts against such payments. According to the terms and conditions of Clause-5 of the said Agreement for Sale the OPs undertook to give the delivery of possession of the said flat on or before December 2018. After expiry of the said period the Complainants on several occasions requested the OPs to execute, register and deliver the possession of the said flat but OPs have avoided to do so by taking false and flimsy grounds. Ultimately the Complainants sent legal notice dated 06.07.2022 to the OPs but the OPs remained unturned. Hence the Consumer Complaint.
Upon service of notice OPs have failed to file WV within stipulated period and the case do proceed ex parte against them vide order dated 17/02/2023.
Complainant has tendered evidence supported by affidavit. We have gone thoroughly evidence adduced by the Complainant including documents on record and gave careful consideration to the arguments advanced by the Ld. Lawyers for the Complainant.
We have travelled through the documents on record and found that Complainants have booked a flat in the residential project of the OPs situated at Mouza – Jagaddal , J.L. No. 71, Pargana – Magura, Touzi No. 47, 49, 64, 63, 68, R.S. No. 233, comprised in C.S. Dag no. 3114, 3115, R.S. dag no. 3114, 3115, 3114/3499 & 3115/3501, L.R. dag no. 3157,3158,3195,3196,, appertaining to R.S. Katian No. 660,663,664, L.R. Khatian no. 1697, 370, under P.S. – Sonarpur, at present lying within the limits of the RajpurSonarpur Municipality, Ward No. 25, being Municipal Holding No. 128, Katyani Tala Street, District – South 24 Parganas against Rs.26,15,00/- and entered into an Agreement for Sale dated 09.08.2017.Money Receipts issued by the OPs reveal that the Complainants have paid a sum of Rs.18,23,000/- out of total consideration amount in respect of the subject flat. Ld. Advocate for the Complainant alleged that as per Clause – 5 of the said Agreement for Sale the OPs were to complete the construction of the said flat and deliver the possession on or before DEC 2018.Photocopy of the said Agreement for Sale support this contention. Another photocopy shows that the OPs have issued a Demand Letter dated 20.05.2022 to the Complainants requesting them to pay a Total Outstanding of Rs.9,94,500/- (including interest) to them. On perusal of the material documents it is found that the Complainants replied the said Demand Letter by sending a Notice dated 07.03.2022 to the OPs through their Ld. Advocate requesting therein to execute and register the Deed of Conveyance on the basis of said Agreement for Sale dated 09.08.2017. It is also found from the annexures furnished by the Complainants that again on 20.05.2022 the Complainants sent a reminder letter to the OPs for execution and registration of the Deed of Conveyance in respect of the flat in question booked by the Complainants. Ld. Advocate for the Complainants submitted that the Complainants are still ready to perform their part as per Terms and Conditions of the said Agreement for Sale dated 09.08.2017.
It is true that that no WV has been filed by the OPs though several opportunities were given to them for filing WV but they have failed to file the same as such the allegation stated in the complaint petition remains unchallenged. Regarding this matter, we can safely state that on failure to file WV by the OPs tantamount to admission of the allegations stated in the complaint petition.
In view of the above facts it is observed by us that, the incident is very unfortunate that OPs have miserably failed to perform their responsibilities. It is not our expectation that the complainant by any means suffer from loss of money and time for the utter negligence on the part of the OPs. In this regard we are opined that, the Complainants cannot made to wait indefinitely for possession of the flat, when there is absolutely no response from the OPs.
OPs were under obligation to handover the subject in favour of the Complainant within the stipulated period and failure to handover the subject flat within the stipulated period tantamounts to deficiency in services on the part of the OPs. Under the above circumstances, unfair trade practice and the gross negligence and deficiency in service on the part of the OPs is proved and the complainant is entitled to get relief/ reliefs.
In the result, the Consumer Complaint is allowed on ex parte against the OPs with following terms:
- OPs are directed to execute and register the Deed of Conveyance in favour of the Complainants in respect of the suit property subject to payment of balance consideration amount of (2615000 – 1823000) Rs.7,92,000/- by the complainants to the OPs.
- OPs are also Jointly and severally directed to pay an amount of Rs.10,000/- as litigation cost together with compensation amount of Rs.25,000/- for harassment and mental agony to the Complainants.
- Theorder should be complied by the parties within 45 days from the date of this order.
Liberty be given to the complainant to put the order in execution, if the OP transgress to comply the order.
