Minakshi Chakraborty,  Presiding Member.

Brief facts of the case:   This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainants describing that the complainant entered into an agreement with the opposite party nos. 1(a) and 1(b) on 19.11.2017 for purchasing a residential flat in “Janani Apartment” being flat no. C/2, covered area 574 sq.ft with common service area of 144 sq. ft including the covered super built up area of 718 sq.ft. and the consideration price of the area of the super built up area measuring 718 sq.ft at the rate of Rs. 1900/- per sq.ft X 718 sq.ft. equal to Rs. 13,64,200/- only and the period for completion of the flat/ apartment was settled for 2 years from the date of execution of the agreement and the parties to the said agreement were agreed upon by and between the parties inter alia that the vendor i.e. the party of the first part of the agreement is unable to deliver the khas possession or to execute and register out and out sale deed in respect of the schedule flat in favor of the purchasers/ complainants in that event the complainants/ purchasers shall have right to take legal steps to compel the vendor to act as per the terms of the agreement etc and the complainants at the time of booking of the said flat paid Rs. 25,000/- by cheque through their bank (State Bank of India, Tribeni Branch, Hooghly) on 6.11.2017 and M/S Sai Construction issued receipt thereof, then the complainants paid Rs. 2,45,000/- by cheque of State Bank of India, Tribeni Branch, Hooghly on 19.11.2017 and then the complainants through Untied Bank of India, Chinsurah Branch, Hooghly at present Punjab National bank, paid an amount of Rs. 8,50,000/- on 27.12.2017 and M/S Sai Construction issued receipt thereof and paid Rs. 20,182/- and RS. 1,80,000/- on 7.2.2018 and 31.3.2018 respectively via on account transaction (that means the complainant paid Rs. 13,20,182/- in total  out of the total loan amount of Rs. 13,64,200/-) and the complainants paid Rs. 25,000/- and Rs. 2,45,000/- i.e. the amount for the purpose of flat booking and agreement via State Bank of India, Tribeni Branch, Hooghly and the rest amount was paid through United Bank of India, Chinsurah Branch, Hooghly at present Punjab National bank and during the construction of the payment by the complainants to the opposite party nos. 1(a) and 1(b) completed the entire above named multistoried building and after completion of the construction the opposite party nos. 1(a) and 1(b) asked the complainants to deposit a sum of Rs. 70,000/- for installing transformer to draw separate high power voltage electricity from the license electricity company/ authority and the complainants in compliance of the direction has already paid the entire amount of Rs. 70,000/- to the opposite party nos. 1(a) and 1(b) by issuing a cheque on 19.11.2017 of State Bank of India, Tribeni Branch, Hooghly.

            The complainants also state that even after completion of the flats of the said building and after payment of almost full consideration price of Rs. 13,20,182/- out of Rs. 13,64,200/- for the flat and also Rs. 70,000/- for electricity/ transformer the opposite party nos. 1(a) and 1(b) asked the complainants to come to the apartment and accordingly the complainants arrived at the apartment and the opposite party nos. 1(a) and 1(b)led the complainants to the flat to be delivered to the purchaser and stated that this is their flat and it is almost completed save and except electric connection and the delivery of possession symbolically given to them but possessory certificate cannot be issued at this time due to incompletion of other allied works of the apartment the delivery of possession cannot be delivered to avoid litigation the opposite party nos. 1(a) and 1(b) assured them that they would issue certificate of possession within a very short time but there were no fruitful result after many initiatives taking by the complainants. After that finding no other alternatives the complainants sent letters to the opposite party nos. 1(a) and 1(b) dt. 30.6.2018, 13.8.2018 and 25.10.2019 and due to break out of the CORONA virus pandemic lockdown throughout the country was declared by the Govt. of India and as such the complainants could not proceed with the problem for solution earlier.

            As per the terms and agreement dt. 19.11.2017 in between the complainants and opposite party nos. 1(a) and 1(b) and after completion of the almost all the consideration price for the flat of the apartment the complainants are entitled to get the service from the opposite party nos. 1(a) and 1(b)  but due to intentional avoidance of opposite party nos. 1(a) and 1(b) complainants are not getting the service and to use the flat and a lion portion of advance money of the sale paid through the then United Bank of India, Chinsurah branch at present Punjab National Bank, Chinsurah, Hooghly and for that reason and avoid complexity the then United Bank of India, Chinsurah branch at present Punjab National Bank, Chinsurah, Hooghly, the opposite party no. 2 is also liable to urge the opposite party nos. 1(a) and 1(b) to perform the part of the contract to provide the above mentioned services to the complainants.

            Complainants filed the complaint petition praying direction upon the opposite party nos. 1(a) and 1(b) to provide the services to the complainants viz. daily maintenance of the premises of the flat after delivering the actual possession of the flat after  registering the Deed of Sale after taking the balance consideration price of Rs. 44,018/- in default the ld. District Commission will execute, register the deed of sale in favour of the complainants after receiving the balance consideration price from the complainants and all other allied services entitled to the complainants and to give any other relief/ reliefs as deed fit and proper.

Evidence adduced by the complainants

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition.

            Complainants filed written notes of argument. The evidence on affidavit and written notes of argument of complainants are taken into consideration for passing final order.

            Argument advanced by the Ld. Advocate of the complainant heard in full.

            From the discussion hereinabove, we find the following issues/points for consideration.

Issues/points for consideration

1. Whether the complainant is the consumer or not?
2. Whether this Commission has territorial/pecuniary jurisdiction to entertain this case?
3. Whether there is any deficiency of service on the part of the opposite parties?
4. Whether the complainant is entitled to get any relief as prayed for?

DECISIONS WITH REASONS

Issue No.1

It is worthy of reference in this regard that both the complainants entered into an agreement on 19/11/2017 for purchase of one flat in JANANI APPARTMENT located on its second floor being flat no. c/2 of which covered area with super built up area 718 sq.ft from both the O.P nos. 1(a) and 1(b) as it appears from the agreement for sale, dated 19/11/2017.

In view of above, keeping in mind section 2(7)(ii) of the Consumer Protection Act 2019, we come to the conclusion that both the petitioners are consumers.

Issue no.2:

Both the complainants and the opposite parties are residents/having their addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that the same does not exceed 20,00,000. Accordingly,, this Commission  has territorial/pecuniary jurisdiction to entertain the present proceeding.

Issue nos.3& 4 :

Both the issues are taken up together for the sake of convenience.

At the very outset it may be noteworthy that service upon all the O.Ps appeared to be satisfactory but none of them appears as is evident from order no 5 dated 26/10/2021 and has left this Commission to dispose of the instant proceeding ex- parte.

On different occasions, as it appears from the affidavit in chief of complainant no. 1 that he and his wife on different occasions have paid Rs. 13,20,182/ through cheques of two different banks out of total consideration price of the flat being Rs. 13,64,200/. An extra amount of Rs. 70000/ was deposited to the developers (O.P nos. 1a & 1b) for installing electric step up transformer to provide flat owners high voltage electricity.

After payment of almost full consideration price of rs. 13,20,182/ and also a further sum of rs.70000/ both the O.P nos. 1(a) &1(b) (to be addressed as both the O.Ps hereinafter) delivered possession of the flat to the petitioners which was almost completed save and except electric connection. This delivery of possession was symbolical one but no possession certificate was issued on the ground of incompletion of other allied works but assured to issue the same within a very short while. But thereafter both the O.Ps have been delaying to deliver actual khas possession certificate on different pretexts which has given rise to the instant proceeding.

The discussion of the preceding paragraph leads this commission to hold that both the O.P. no. 1(a) and O.P. no. 1(b) do provide the required services to the complainants in respect of the flat as mentioned in the B schedule of the petition of complaint after delivering the actual possession of the same on execution and registration of the deed of sale within 45 days from date after taking the balance consideration of Rs.44018/.

In case of failure on the part of the O.P. no. 1(a) and O.P. no. 1(b) to comply with the order, the commission do execute, register the deed of sale in favour of the complainants after depositing the balance consideration of Rs. 44018/ by the complainants to the bank account of the VENDORS. On happening such incident the complainants do pay an amount of Rs. 6000/ towards remuneration of the Ld. Commissioner before execution of the sale deed.

Both the issues are thus disposed of.

Hence,

Ordered

that the complaint case no 65 of 2021 is disposed of ex-parte against opposite parties.

            Both the O.P. no. 1(a) and O.P. no. 1(b) do provide the required services to the complainants in respect of the flat as mentioned in the B schedule of the petition of complaint after delivering the actual possession of the same on execution and registration of the deed of sale within 45 days from date after taking the balance consideration of Rs.44018/.

            In case of failure on the part of the O.P. no. 1(a) and O.P. no. 1(b) to comply with the order, the commission do execute, register the deed of sale in favour of the complainants after depositing the balance consideration of Rs. 44018/ by the complainants to the bank account of the VENDORS. On happening such incident the complainants do pay an amount of Rs. 6000/ towards remuneration of the Ld. Commissioner before execution of the sale deed.

            O.P. no. 1(a) and O.P. no. 1(b)  is directed to deposit Rs. 6000/- in the Consumer Legal Aid Account of D.C.D.R.C., Hooghly by way of cheque or draft within 45 days otherwise necessary order as per law.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

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