Sri Ashoke Kumar Pal, President.

The case of the complainants in a nutshell is that the complainants intended to purchase a flat from the O.Ps. being flat No. “A-4” in the 3^rd floor of Block - D measuring about 795 Sq.ft. in “Monisha Apartment” as described in the Schedule of the agreement for sale dated 03.09.2019 at a valuable consideration amount of Rs. 26,50,000/-(Rupees twenty six lakh fifty thousand only) and one car parking space for Rs. 3,00,000/-(Rupees three lakh only) and thus totalling to an amount of Rs. 29,50,000/- (Rupees twenty nine lakh fifty thousand only). The complainants entered into an agreement for sale on 03.09.2019 with the O.Ps. and paid Rs. 10,00,000/-(Rupees ten lakh only) to the O.Ps. When a copy of agreement for sale was handed over to the complainants, it was found defective which was brought to the notice of the developer. The O.Ps. (developer) though assured the complainants to make necessary correction and / or modification of the said agreement for sale but ultimately failed to do so. Finding no other alternative, the complainants sent a legal notice on 19.03.2021 which was returned with postal remark “Addressee refused”. The complainants obtained information that there was no progress of the construction work of the building (Monisha Apartment) and there is no hope to complete the construction in near future. Accordingly, the complainants made alternative residential arrangement at Amtala. As the O.Ps. failed to provide the complainants with rectified/modified agreement for sale and also failed to comply with the terms and conditions of the agreement for sale and to complete the construction work which prompted the complainants to file the instant complaint case.

The O.P. No. 2 although appeared in this case but did not file any W.V. to contest the same. They filed a petition dated 16.11.2021 challenging the maintainability of the complaint which has been treated as W.V. of the O.P. No. 2.

O.P. No. 1 did not file any W.V.

The O.Ps. also remained absent on date of hearing of argument of this case and as such the argument of the Ld. Advocate for the complainants was heard and we proceeded to pass the Final Order of this case.           

               POINTS OF CONSIDERATION :

1. Are the complainants consumer?
2. Are the O.Ps. guilty of deficiency in service and unfair trade practice ?
3. Are the complainants entitled to get relief as prayed for?

               DECISIONS WITH REASONS :

Point No. 1:

On perusal of the case record along with the documents it appears that the complainants intending to purchase a flat being flat No. “A-4” in the 3^rd floor of Block - D measuring about 795 Sq.ft. in “Monisha Apartment” as described in Schedule of the agreement for sale dated 03.09.2019 at a valuable consideration amount of Rs. 26,50,000/-(Rupees twenty six lakh fifty thousand only) and one car parking space for Rs. 3,00,000/-(Rupees three lakh only) and thus totalling to an amount of Rs. 29,50,000/- (Rupees twenty nine lakh fifty thousand only). The complainants entered into the agreement for sale on 03.09.2019 and paid Rs. 10,00,000/- (Rupees ten lakh only) out of the total consideration amount of Rs. Rs. 29,50,000/- (Rupees twenty nine lakh fifty thousand only).

Therefore, the complainants are consumers as defined under Section 2(7) of the Consumer Protection Act, 2019.    

As such Point No. 1 is decided in favour of the complainants and against the O.Ps.

Point No. 2:

The complainants booked the scheduled flat with garage and entered into an agreement on 03.09.2019 with the O.Ps. to that effect. The complainants made payment of Rs. 10,00,000/-(Rupees ten lakh only) out of total consideration amount of Rs. 29,50,000/- (Rupees twenty nine lakh fifty thousand only) and the O.Ps. acknowledged the receipt of the same. There is no dispute regarding payment made by the complainants. On the other hand despite the payment of earnest money by the complainants as per terms of the agreement dated 03.09.2019 the O.Ps. failed and neglected to handover the modified/rectified agreement for sale and to complete the construction work of the building as well as the scheduled flat with garage. The complainants requested the O.Ps. several times to provide a rectified/ modified agreement for sale after removal of the defects in the agreement and to complete construction work. But no fruitful result was achieved. Therefore, it is clear from the averments of the complainants that the O.Ps. are guilty of deficiency in service and unfair trade practice.     

As such the Point No. 2 is also decided in favour of the complainants and against the O.Ps.

Point No. 3:

The complainants booked the scheduled flat being flat No. “A-4” in the 3^rd floor of Block - D measuring about 795 Sq.ft. in “Monisha Apartment” from the O.Ps.  and made a part payment of Rs. 10,00,000/-(Rupees ten lakh only) out of total consideration amount of Rs. 29,50,000/-(Rupees twenty nine lakh fifty thousand only) on different dates. But the O.Ps. violated the terms and conditions of the agreement dated 03.09.2019. Neither the O.Ps. handed over the rectified/modified agreement for sale nor completed the construction work of the scheduled flat with garage as per terms and conditions of the agreement for sale dated 03.09.2019. Therefore, as the complainants did not get any positive response from the O.Ps. they have been compelled to send a legal notice on 19.03.2021 and thereafter filed the present case against the O.Ps. on the reliefs sought for in the petition of complaint. As the O.Ps. did not handover the complainants a modified/rectified agreement for sale and to complete the construction work of the scheduled flat with garage, the complainants failed to get satisfactory service from the O.Ps.  On the other hand the complainants were harassed by the O.Ps. by various ways. Therefore, the complainants are entitled to get the reliefs as prayed for.           

So, Point No. 3 is also decided in favour of the complainants and against the O.Ps.  

In the result, the complaint case succeeds.

Court fees paid is correct.

Hence, it is

ordered

that the instant case be and the same is hereby allowed on contest against the O.P. No. 2 and ex-parte against the O.P. No. 1 with cost of Rs. 10,000/-(Rupees ten thousand only).

The O.P. Nos. 1 and 2 are jointly and severally liable and directed to refund Rs. 10,00,000/- (Rupees ten lakh only), the part consideration money to the complainants within 45 days from the date of passing this Order with simple interest @ 12% p.a. w.e.f. 03.09.2019 ( date of agreement for sale ) till the date of final realisation thereof.

The O.Ps. are jointly and severally liable and also directed to pay compensation to the tune of Rs. 50,000/-(Rupees fifty thousand only) for mental pain & agony, delay and harassment suffered by the  complainants within 45 days from the date of passing this Order.

The O.Ps. are jointly and severally liable and also directed to pay the litigation cost of Rs. 10,000/-( Rupees ten thousand only) within 45 days from the date of passing this Order.

The complainants are at liberty to put the order into execution after the expiry of 45 days in case the orders are not complied with by the O.Ps. within 45 days from the date of passing this Order.

Let a copy of the order be sent / supplied free of cost to the parties concerned.

The Final Order will be available in the following website www.confonet.nic.in.

Dictated and corrected by me.

              President