Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The brief fact of the case is that being an intending purchaser the complainant has booked a flat for his residential purpose initially the consideration amount of the said flat was decided as Rs. 9,60,000/- on the front side of the 1^st floor measuring about 1200 sq. ft super built up area be the same a little more or less comprise with 3 bed room one dinning cum living room, two bath rooms with privy, one kitchen and one balcony together with the undivided proportionate share of land in the said premises along with the common paths, general common areas, amenities and facilities in the said building.  One Agreement for Sale was executed between the parties on 21.12.2006 after payment of Rs. 21,000/- by cheque and 8,00,000/- in cash and the same was received by the OP Nos. 1 , 2 and subsequently the consideration amount was enhanced. It was agreed between the parties that the balance consideration amount will have to pay by the purchaser/complainant to the developer as per progress of work. Afterwards, the complainant has paid more Rs. 9,40,000/- only due to enhancement of market price   and for additional beautification and better fittings, fixture. Accordingly, money receipt was issued by the OPs. As such, the complainant has paid Rs. 19,00,000/- (approx)  to the OP/developer.  But the developer did not complete the construction work and not hand over the possession of the said flat to the complainant till date.

 It appears from the record that on 30^th May, 2018 the name of OP Nos. 4, 5, 7, 8, 13 and 21 were strike off from the cause title by the complainant. Even after despite service and expiry of 45 days OP Nos. 1, 11 and 12 have not filed any W.V. It appears from the record that in view of the order passed in a similar case by Hon’ble NCDRC dt. 14.12.2016 in RP/220/2016 names of all landowners were expunged and in that case order was passed only against OP No. 1/builder.

Considering the above, observation of the Hon’ble NCDRC in a similar case in RP/220/2016 the name of all landowners from 3 to 20 were expunged.  Despite service of notice none appears on behalf of OP Nos. 1 and 2 Sabita Construction. As such, the case is taken up for hearing ex parte.

Ld. Advocate for the Complainant has stated that they have already paid Rs. 8 lakh in cash towards consideration amount and afterwards paid Rs. 9,40,000/- as the consideration amount for the subject flat was enhanced by the OP/developer altogether and ultimately the complainant has to pay Rs.19 lakh to the developer. In spite of that the OP/developer did not handover possession of the said flat and is liable to compensate their loss with proper compensation. Ld. Advocate for the complainant argued further that one agreement for sale was duly executed in between the parties on 21.12.2016. The complainant has stated in para 9 of petition of complaint that the complainant has paid consideration in cash and through cheques to the OPs as per the agreement and the consideration amount was later enhanced to Rs. 19 lakh due to escalation of market price and due to additional beautification and better fittings, fixture and use of Italian marble. The enhanced amount was duly accepted as part payment for the subject flat. He has already furnished one annexure No. C at page 75 issued by the developer/ proprietor (OP No. 2) of Sabita Construction (OP No. 1). Altogether the complainant has paid Rs. 19 lakh to the complainant as consideration amount but as in spite of that the flat was not handed over to him. The complainant has approached this Commission for execution / refund with prayer of compensation of Rs. 5 lakh and litigation cost of Rs. 1 lakh from the OP.

On careful scrutiny of page No. 75 annexure C it appears to us that the said document has been issued by Ashok Majhi, OP No. 2 is the power of attorney holder and the proprietor of the construction/ company M/s Sabita Construction on 14.04.2007 with proper seal /stamp. The said document was issued by OP 2 for the subject first floor flat of measureing approximately 1200 sq. ft. at the premises No. 42A Haramahan Ghosh Lane, Kolkata- 700085 at the agreed price Rs. 19 lakh. As such, the said documents reveals that the consideration amount was re-fixed as 19 lakh and the complainant has so far made payment of Rs. 15,11,800/- till 14.04.2007. On careful perusal it also appears to us that afterwards on 03.03.2008, 31.05.2011 and on 28.05.2011 the complainant has made further payment of Rs. 50,000/-, 1,39,000/- and 2,00,000/- respectively. But even after that the OPs did not hand over the possession of the subject flat.

Even after proper service of notices the OP No. 1 and 2 remain absent without any step As such, the statement made by the complainant remains uncontroverted and unchallenged.

Eventually the OPs have failed to keep their promises and did not deliver possession of the subject flat till date.   Therefore, they are found deficient in rendering services towards the complainant.

On evaluation of materials on record it transpires that the complainant being ‘consumer’ as defined u/s 2 (1) (d) of the C.P. Act 1986 as he has hired the service of the developer after making payment of consideration amount of Rs. 19,00,000/- in relation to housing construction and under compelling circumstances, the complainant has to come up in this Commission for which they are entitled to get litigation cost which we quantify as Rs. 25,000/-. As the developers failed and neglected to fulfil their part of obligations and thereby deficient in rendering service towards that complainants within the meaning of Section 2 (1)(g) read with section 2 (1)(o). Therefore the complainant is entitled to get some relief.

In view of the above discussion and considering the fact of the case the complaint case is allowed on contest against OPs /developer Nos. 1 and 2 with the following orders:

 (i)The OP Nos.1 & 2 (developer) are directed to deliver the physical possession of the schedule flat measuring about 1200 sq. ft at 1^st floor and to register deed of execution in the name of the complainants within 90 days.

(ii) The OP Nos.1 & 2 (developer) are further directed to pay Rs. 1,00,000/- (Rupees one lakh) only as compensation along with litigation cost of Rs. 25,000/- (Rupees twenty five thousand) only within 90 days from the date of judgment;

The aforesaid amount (19,00,000/-+ 1,00,000/-+ 25,000/-) aggregating to Rs. 20,25,000/- (Rupees twenty lakhs twenty five thousand) only is required to be paid within 90 days from the date of this order i.d. it shall carry interest @9% p.a. from the date of this order till the date of actual payment.