This Complaint is filed by the Complainant under Section 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs did not take any step to execute and register the Deed of Conveyance and to issue completion certificate in favour of the Complainanttill filing of this complaint.

The brief fact of the case of the Complainant is that the OP-1(a) and 1(b) offered the Complainant to sell out a flat on the first floor,east side,   measuring about 437 sq. ft. super built up area more or less in the said project consisting of one bedroom, one dining cum drawing room, one kitchen, one toilet, together with proportionate undivided impartable share of land along with all civic  amenities and facilities as available in the proposed building situated at premises no-929, PurbaSinthi Road, Kolkata-700030 under the Ward No-12 of South Dumdum Municipality, P.S- Dumdum in the District of North 24 Parganas. The total consideration of the said flat was fixed for Rs.5,68,100/-. The OP-2 is the owner of the Land who executed a development agreement with the OP- 1 (a) and 1(b) being the promoters for erection of a building on the said land as per the sanctioned plan. An agreement for sale was executed by and between the Complainant and the OP-No. 1(a) and 1(b) on 13.11.2011 wherein the said OPs have agreed that they will sell out a self-contained flat to the Complainant with proportionate share of the undivided land along with all facilities and amenities. As per the terms and the conditions of the sell agreement dated 13.11.2011 the Complainant paid the entire consideration amount of Rs.5,68,100/- to the OP-1(a) and (b) in addition to an excess amount and the Complainant paid a sum of Rs.6,30,550/-. In pursuance of the agreement for sale it was scheduled that the OP-1(a) and 1(b) will deliver the possession to the Complainant within 18 months from the date of the agreement for sale. But unfortunately the OP-1(a) and (b) after realizing the entire consideration amount along with an excess amount to the tune of Rs.6,30,550/- did not take any initiative to execute the sale deed in favour of the Complainant till filing of this complaint. But on 01.02.2016 the OPs delivered the physical possession without providing completion certificate. The Complainant took possession in the said residential flat measuring super built up area of 490 sq. ft. and for this reason the Complainant had to pay an extra amount of Rs.62,450/- in addition to the consideration of the flat as mentioned in the agreement for sale.  The OP-1(a) and (b) were repeatedly requested by the complainant to provide completion certificate along with execution of the sale deed in favour of the Complainant, to no effect. Finding no other alternative, the Complainant issued legal notice on 22.01.2019 through his Ld. Advocate to the OP-1(a) and (b) requesting to complete the registration process and to provide completion certificate in favour of him within 15 days from the date of receipt of the said letter. But inspite of receipt of the letter on 01.02.2019 the OPs did not reply to the same. It is stated by the Complainant that non-execution of the Deed of Conveyance, and non-providing the Completion Certificate to the Complainant have constituted a case of deficiency as well as unfair trade practice on the part of the OPs. The OPs took money for rendering service to the Complainant and being the consumer the Complainant has legal right to get appropriate relief from the competent Consumer Forum as per the Provision of Consumer Protection Act, 1986. As the grievance of the Complainant have not been redressed by the OPs, having no other alternative the Complainant have approached before this Ld. Forum (now Commission as amended) praying for direction upon the OP-1(a) and 1(b) to execute and register the Deed of Conveyance in respect of the questioned flat and completion certificate of the questioned building to the Complainant. The Complainant has also prayed for direction upon the said OPs to pay compensation to the tune of Rs.1,50,000/- due to deficiency in service, mental harassment and agony and litigation cost of Rs.10,000/- to him.

Initially this Complaint was filed before the Ld. DCDRF, Barasat on 29.05.2019, subsequently after establishment of this Ld. Forum (now commission as amended) within North 24 Pgs as the addresses of the OPs fall within the territorial jurisdiction of this Ld. Commission hence as per the Order of the Hon’ble SCDRC this record was transferred from DCDRF, Barasat to the Additional CDRF, Rajarhat (New Town) [Now Additional Consumer Disputes Redressal Commission as amended]. 

After receipt of this case it was noticed by us that the Hon’ble SCDRC was pleased to direct the parties to appear before this Ld. Commission on 31.12.2019. Accordingly this Ld. Commission was also pleased to fix the said date for appearance of the parties. On 31.12.2019 on behalf of the Complainant Ld. Advocate was present. On the said date it was not clear as to whether notices were served upon the OPs or not. For abundant precaution date was given for issuance of notices upon the OPs and 17.02.2020 was fixed for S/R and appearance of the OPs. The OPs were directed to file written version within 45 days from the date of receipt of the notices. On 17.02.2020 the Ld. Counsel for the Complainant filed by the track reports from where it was evident that notice was served upon the OP-1 on 24.01.2020 and accordingly OP-1 was also present in person on 17.02.2020 by filing hazira. Next date was given to the OP-1 for filing written version on 06.03.2020. The track reports in respect of OP-2 and 3 also revealed that OP-2 and 3 received the notices on 24.01.2020. But on 17.02.2020 neither the OP-2 nor the OP-3 turned up to contest the compliant either orally or by filing written version. Inspite of this as the statutory period for filing  written version was not over time was given to the OP-1, 2, 3 for filing written version on 06.03.2020. On 06.03.2020 OP-2 and 3 remained absent as usual, no written version was forthcoming from their end. Though OP-1(a) and 1(b) were present, but no written version was also forthcoming on their behalf. The Ld. Counsel for the OP-1 (a) and (b) prayed time for filing written version but in view of the Judgment passed by the Hon’ble Supreme Court in Civil Appeal No. 10941-10942/2013, decided on 04.03.2020, Wherein Therir Lordships have held that the written version should be filed within 30 days from the date of receipt of the notice and at best further 15 days can be given, but beyond 45 days the written version should not be accepted. In view of the said order/Law of the Land the prayer for further time for filing written version could not be allowed. Therefore an order was passed by this Ld. Commission that this compliant will run ex parte against all the OPs.

Date was fixed on 03.04.2020 for expate hearing. It is pertinent to mention that on 03.04.2020 due to Lockdown declared by the Government of India on the ground of severe out-braking of Corona Virus, this case record could not be placed. Accordingly on 10.09.2020 this case record is placed by the Bench Clerk. On the said date Ld. Counsel for the Complainant was present who had adduced evidence on affidavit and written notes of argument.

We have carefully perused the petition of complaint, evidence and the WNA. At the very outset we are inclined to rely on the judgmentpassed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vsAman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

It is mentioned earlier that the OP-2 and 3 did not turn up inspite of receipt of the notices before this Ld. Commission to contest the complaint, though the OP-1 (a) and (b) appeared, but as they have miserably failed to file the written version within the statutory period, hence as order was passed to this effect that the complaint will run exparte against all the OPs.

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of notice the OPs chose not to contest the complaint either by filing written version or orally. Therefore in view of the said judgment the allegation as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegation.

From the petition of complaint it is evident that Smt. Subhadra Rani Mondal is the land owner, who had executed one development agreement with the builders for erection of a building on the said land and accordingly power of attorney was also given by the landowner in favour of the builders-OP-1 (a) and (b). The OP-1 (a) and (b) offeredthe Complainant to sell out a flat on the first floor,east side, measuring about 437 sq. ft. super built up area more or less in the said project consisting of one bedroom, one dining drawing room, one kitchen and one toilet together with proportionate undivided impartable share of land along with all civic  amenities and facilities as available in the proposed building situated at premises no-929, PurbaSinthi Road, Kol- 700030 under the Ward No-12 of South Dumdum Municipality, P.S- Dumdum in the District of North 24 Parganas. The total consideration of the said flat was fixed for Rs.5,68,100/-. An agreement for sale was executed by and between the Complainant and the OP-No. 1(a) and 1(b) on 13.11.2011 wherein the said OPs have agreed that they will sell out a self-contained flat to the Complainant with proportionate share of the undivided land along with all facilities and amenities. As per the terms and the conditions of the sell agreement dated 13.11.2011 the Complainant paid the entire consideration amount of Rs.5,68,100/- to the OP-1(a) and 1(b). In pursuance of the agreement for sale it was scheduled that the OP-1(a) and 1(b) will deliver the possession to the Complainant within 18 months from the date of the agreement for sale. Therefore it is crystal clear that the Complainant was entitled to get legal possession in the said flat by May, 2013. But unfortunately the OP-1(a) and (b) after realizing the entire consideration amount to the tune of Rs.5,68,100/- did not take any initiative to execute the sale deed in favour of the Complainant till filing of this complaint. But on 01.02.2016 the OPs delivered the physical possession with possession letter, but without completion certificate registration work. After taking possession it was detected that the area of the flat was extended than the mentioning area in the agreement for sale i.e. in the agreement the area was mentioned as 437 sq. ft., but after possession it was detected that the area became 490 sq. ft. and for this reason the Complainant had to pay an excess amount of Rs.62,450/- to the OP-1 (a) and (b). Therefore the Complainant paid a sum of Rs.6,30,550 for the said flat measuring 490 sq. ft. The OP-1(a) and (b) were repeatedly requested by the Complainant to provide, completion certificate along with execution of the sale deed in hisfavour, to no effect. In this respect we are to say that until and unless the questioned flat is registered in favour of the Complainant, it cannot be said that the Complainant-purchaser got the legal possession therein. Mere providing the possession in the flat has no legal value as the flat has not yet been registered in favour of the Complainant. Thereafter finding no other alternative, the Complainant issued legal notice on 22.01.2019 through his Ld. Advocate to the OP-1(a) and (b) requesting to complete the registration process and to provide completion certificate in favour of him within 15 days from the date of receipt of the said letter. But inspite of receipt of the letter on 01.02.2019 the OPs did not reply to the same. In this respect we are of the opinion that non-execution of the Deed of Conveyance, non-providing Completion Certificate to the Complainant have constituted a case of deficiency in service as well as unfair trade practice on the part of the OP-1 (a) and (b). It is the settled legal position that until and unless the completion certificate in respect of the building is handed over to the Complainant, the Complainant will not be in position to mutate the property in his name. Mere handing over the physical possession in the flat to the Complainant will not suffice without the proper documents as such possession has become meaningless as well as useless until the valid documents are handing over i.e. completion of registration process and the completion certificate.

From the pleading it is ascertained that there is delay of more than seven years in providing the questioned flat to the Complainant along with the cogent legal documents from the date of the agreement for sale by the OP-1 (a) and (b). As the agreement for sale was executed by the Complainant and the OP-1 (a) and (b), they being agreed with the terms and conditions put their respective signatures, now they are no legally empowered to travel beyond the terms and the conditions of the agreement for sale.

In respect of delay in delivery of possession in the flat we are to rely on the recent decision of the Hon’ble Supreme Court, Civil Appellate Jurisdiction, passed in Civil Appeal no-6239/2019, decided on 24.08.2020,  wherein Their Lordships have held that in case of delay in delivery of the possession in the flat compensation on the paid amount should be @6% p.a. and the amount shall be computed on the total amount paid towards the purchase of the flat with effect from the date of expiry of handing over the flat as mentioned in the sale agreement until the date of the offer of possession after the receipt of the occupation certificate.

In the case in hand the abovementioned decision can be applicable as though in the agreement for sale dated 13.11.2011 it was agreed by the OP-1 (a) and (b) that peaceful possession in the flat will be delivered within 18 months from the date of the agreement for sale, but after lapse of more than seven years the OP-1 (a) and (b) have miserably failed to abide by the said terms and the conditions. Till filing of this complaint the Complainant did not get the legal possession as the flat has not yet been registered in his name till date. From the date of the agreement for sale the Complainant was entitled to get the property in a valid and legal manner within 13.05.2013. Therefore having regard to the aforementioned judgment it can safely be said that the OP-1 (a) and (b) are under the obligation to pay an interest @6% p.a. on the paid amount of Rs.6,30,550/- for the period from 13.05.2013 till providing the possession along with the occupation certificate.

It is true that due to such deficiency in service on behalf of the OP-1 (a) and (b) the Complainant has been suffering for a prolonged period and to get valid and legal possession in the flat he had to run from pillar to post and ultimately had to approach before the Court of Law for redressal of his grievance. Admittedly for this proceedings the Complainant has to incur some cost and for this reason we are of the considered view that the Complainant is also entitled to get litigation cost from the OP-1 (a) and (b).

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no- RBT/CC/189/2019 (CC/150/2019) is hereby allowed exparte against the OP-1 (a) and (b) with cost and dismissed against the other OP without any cost. The OP-1 (a) and (b) shall execute the sale deed in respect of the questioned flat in favour of the Complainant and also deliver the completion certificate in respect of the building to the Complainant within 45 days from the date of passing this judgment. The OP-1 (a) and (b) shall pay either jointly or severally an interest to the Complainant @6% p.a. on the paid amount of Rs.6,30,550/- for the period from 13.05.2013 till the date of possession to the Complainant with occupation certificate in the form of compensation. The OP-1 (a) and (b) are hereby directed to pay litigation cost of Rs.8,000/- to the Complainant either jointly or severally due to deficiency in service and unnecessary harassment, mental agony and pain within 45 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire decree in execution as per provision of law.

Let plain copy of this judgment be given to the parties free of cost as per provision of CPR.

Dictated and corrected by

   Mrs. Silpi Majumder

          MEMBER