This is a case under Section 12 and 17 of the Consumer Protection Act, 1986. The fact of the case in nutshell is that the complainant B. Das and his wife Panna Das was agreed to purchase a flat along with car parking space from the developer Rishabh Enterprises and his proprietor Rajesh Prasad at Siliguri, Mahananda Para. The developer by virtue of an agreement and power of attorney with landlords (OP no. 3 to 5) was entrusted to develop the land to make a construction and sale out the flats from the said construction to the prospective buyers. Accordingly, the complainants had entered into an agreement with the developer on 5/08/2013 by making a payment as advance Rs. 10,000/- and thereafter on 20/09/2013 the complainant has paid Rs. 1,90,000/- by a cheque. There after he has obtained a loan of Rs. 20,00,000/- from State Bank of India. Further case is that the complainants was ready with the said bank loan including Rs. 42,609/- from their own purse to have a registration of their flat to be executed by the promoter/developer. The OP no. 2 has intentionally withheld the process of executing the sale deed by registration through ADSR, Siliguri and demanded more money from the complainants. The further case of the complainant is that the flat and the construction work of the flat was not done as per the sanctioned plan and the front elevation of the said flat was changed which was not according to the sanctioned plan. The car parking space also could not be provided though they have paid the entire consideration money to the promoter/developer in the meantime. And they were paying EMI to the bank regularly. The OP no. 2 the proprietor of the construction company has intentionally cheated the complainants and grabbed the money which was their hard-earned money as service holder and for that reason, they have registered a criminal charge of offence against the promoter/developer in the concerned police station. The complainants have repeatedly asked the OP no. 2 to deliver the possession of the flat in accordance with the terms of agreement but he has deliberately cheated the complainants. So, a legal notice was sent to him through Ld. Advocate on 23/02/2016 but in spite of the said notice the developer/promoter has not executed any deed of conveyance in favour of the complainants and finding no other alternative. They have registered a consumer complaint before the Ld. D.C.D.R.F, Siliguri but the consumer complaint was not allowed there as the value of the case exceeded the pecuniary jurisdiction of the Ld. Forum and for that reason, they have registered instant consumer complaint before this Commission seeking appropriate relieves as per provisions of Section 12 and Section 17 of CP Act, 1986. The instant consumer complaint was registered before the Hon’ble State Commission, Kolkata Bench before establishment of this Circuit Bench at Siliguri where notice was served upon the OP no. 1 to 6. The OP no. 2 has recorded his presence through Ld. Advocate and have submitted the written version before the Hon’ble State Commission, Kolkata Bench. The OP no. 1,3,4,5 and 6 in spite of receiving the notice did not contest the case and the Hon’ble State Commission was pleased to pass an order to hear the case ex-parte against OP no. 1,3,4,5 and 6. The complainants submitted the evidence-in-chief in support of their case and the OP no. 2 who was contesting the case asked to furnish the questionnaires towards the evidence of complainants. Thereafter, the case was reassigned here for disposal. And both the complainant and OP no. 2 were asked to appear before this Bench for conducting the hearing. The complainants recorded their presence before this Commission. On the other hand, OP no. 2 did not record his presence here. For the interest of justice, the Commission has asked the complainants to intimate the OP through post about the existence of the case here and the next dates of hearing. The complainants have complied the said order and the Commission found that the Ops of this case became aware about the existence of the case. But they did not turn up though it was already ordered that the case against OP no. 1,3,4,5 and 6 will be heard ex-parte. As OP no. 2 did not furnish the questionnaires, the evidence of the complainant became closed. Both parties were provided the opportunities to take participate in the argument and in response to that the complainants came personally to conduct the hearing of argument by submitting also a WNA. The Ops did not take participate in the hearing of the case here.

D E C I S I O N   W I T H   R E A S O N S

The OP no. 2 in this case has filed the written version where he contended that the instant consumer complaint was not maintainable in law which is barred by law of limitation and contended inter alia that being a proprietor of OP no. 1 construction firm he admitted the fact that the complainant has approached him for buying a flat constructed by OP no. 2 and while the construction work was in full swing, the complainants agreed to purchase a flat on the third floor of the building Gananayak Residency along with one car parking space and the consideration price was settled as Rs. 26,42,609/- on 05/08/2013 and on that day, Rs. 10,000/- as token money was received from the complainants as advance booking. And thereafter, the complainants had paid him Rs. 1,90,000/- and by virtue of the said agreement deed, the complainant has obtained a loan from the bank which was kept in his account but intentionally delaying the payment of the flat to him. Though, this OP was keeping the construction work in full progress but the complainants were unable to pay the balance amount in due time. And after completion of the construction work it was settled by fixing a date for registration of the flat in the name of the complainants but since then, the complainants intentionally avoided the process of registration and ultimately, by an SMS on 05/10/2014 they intended to cancel the booking and wanted to pay back the money they paid till date. On 21/10/2014 the complainant again came to this OP and requested him to fix up a registration date and he was agreed to pay the entire dues on the day of registration. But on the date of registration at the instance of the complainant the process of registration was postponed. Thereafter on 05/02/2015 this OP by sending a notice to the complainant confirming the date of registration along with payments or to send intimation for cancelling the booking. The complainants intentionally refused to accept the said flat and they have not paid the consideration money in time and for that reason, the case is liable to be dismissed. The complainant in support of his case has adduced evidence along with some documents by FIRISTY that is agreement for sale, selling payment details, quarry and cheque. After consulting the agreement for sale, it is reflected that the promoter/builder had entered into an agreement with the complainants to hand over a residential flat measuring 1079 ft. including car parking space of 148 sq. ft. in Gananayak Residency constructed by the OP no. 2 through his farm Rishabh Enterprises. The agreement was notarized and not registered and the total consideration money was fixed Rs. 26,42,609/-. From the various documents and including lawyers letter it is established that out of total consideration money the complainants have paid Rs. 10,000/- as advance on the date of agreement on 5/08/2013 and Rs. 1,90,000/- by a cheque dated 30/08/2013. Subsequently, he obtained a loan of Rs. 20,00,000/- from the State Bank of India and to make payment of the loan amount to the OP no. 2 he issued the cheque in the name of Rishabh Enterprises but subsequently, the bank did not disburse the said cheque amount in favour of the OP no. 1 and 2. So, it is established beyond any doubt that so far as the payment is concerned, the complainant has ever paid Rs. 2,00,000/- to the OP no. 2 and thereafter, the process of handing over the possession of flat has stalled. The registration of the flat and allotment of the car parking space remained pending and thereafter this consumer case is cropped up which was initially instituted before the Ld. D.C.D.R.F, Siliguri and at the time of final hearing of that case, Ld. Forum has observed that value of the subject matter of the case including the relieves exceeded the pecuniary jurisdiction of the Ld. Forum and for that reason, the case was dismissed. Now, the complainants has come before the Commission to obtain a favourable order so that they could be well protected themselves for the deficiency of service on the part of the builder/promoters. The testimony of the complainants is remained unchallenged in this case and the material documents have come into the support of the complaint’s case. For that reason, they deserve to get a proper relieves under the protection of Section 12 and Section 17 of the CP Act, 1986.

Hence it is,

O R D E R E D

That the instant consumer complaint is hereby allowed on contest against OP no. 2 and ex-parte against OP no. 1,3,4,5 and 6 without cost. The OP no. 2 is hereby asked to hand over the possession of the said flat and car parking space as per agreement dated 05/08/2013 after obtaining the balance amount of consideration price  from the complainants and to execute and register the deed of conveyance in favour of the complainants within 2 months failing which he shall have to refund Rs. 2,00,000/- along with interest at the rate of 9 per cent per annum since the date of 20/09/2013 within 2 months in default, another 9 per cent per annum as interest will be carried on over the refunded money along with its interest. The OP no. 2 is further directed to pay compensation to the tune of Rs. 2,00,000/- to the complainants within 2 months failing which 6 per cent per annum as interest will be carried on. A litigation cost of Rs. 10,000/- to be paid by the OP no. 2 to the complainants within 45 days.

Let a copy of this order be handed over to the complainants free of cost and the same to be communicated to all the opposite parties through post.