Hon’ble Mrs. Soma Bhattacharjee, Member
CC/165/2018 had been filed by Asokananda Roy. On his demise Smt. Gita Roy (wife of Asokananda Roy) and Smt. Sanyukta Roy and Smt. Sanghamitra Roy (daughters) were substituted u/s 17 of C.P. Act, 1986 against Pavela Construction and Others/ OPs.
The complainants state that OP no. 1 is a partnership firm represented by OP nos. 2, 3 & 4 and OP nos. 5 to 15 are joint owners of the suit property, a piece and parcel of land measuring about 5 cottah 12 chittak and 25 sq. ft. lying at premises no. 14L / 1A, Dumdum Road, P.S. Chitpore, Ward No. 3 KMC Kolkata 700030 (described in schedule A). The complaint petition is valued at Rs. 21,60,000/-.
The OP no. 1 is located at its registered office at 11/2 Kedarnath Das Lane, P.S. Sinthee, Kolkata – 700030. The complainants were in search of a suitable residential accommodation and he came to know OP nos. 2 to 4 who were about to develop the schedule property after entering into an agreement with the landowners who signed Power of Attorney in favour of OP nos. 1 to 4.
Complainant and OP nos. 1 to 4 signed an agreement for sale dt. 29.01.2010 by which the OP nos. agreed to sell a self contained flat measuring about 1000 sq. ft. including 25% super built up area, to be constructed on the 1st floor South East West side back portion in the proposed building premises no. 14L / 1A, Dumdum Road, P.S. Chitpore, Ward No. 3 KMC Kolkata 700030 for a total consideration of Rs. 21,00,000/- (twenty one lakhs) only. OP nos. 2 to 4 undertook to complete the construction of the building and handover possession of the flat along with all facilities to the complainant within 30 months from the date of earth cutting.
The complainant Indrajit Roy made a total payment of Rs. 22,70,000/- to the OPs no. 1 to 4 out of total consideration of 23,10,000/- by cash and cheque on the following dates:
Sl. No. | Date | Amount Rs. |
1. | 29.01.2010 | 80,000 |
2. | 29.01.2010 | 2,20,000 |
3. | 29.01.2010 | 90,000 |
4. | 29.01.2010 | 60,000 |
5. | 23.08.2010 | 7,00,000 |
6. | 23.08.2010 | 1,50,000 |
7. | 25.03.2011 | 1,60,000 |
8. | 25.03.2011 | 40,000 |
9. | 20.09.2011 | 1,00,000 |
10. | 20.09.2011 | 70,000 |
11. | 20.09.2011 | 30,000 |
12. | 23.11.2011 | 50,000 |
13. | 24.07.2012 | 1,50,000 |
14. | 24.07.2012 | 1,00,000 |
| Total | 20,00,000/- |
Copies of money receipts of the above payments have been filed by the complainant and kept in the record. The balance consideration of Rs. 1,00,000/- is to be paid to the OPs at the time of registration of the flat.
The OP nos. 1 to 4 had committed to handover possession of the flat within 30 months from the date of earth cutting. After much persuasion the OP nos. 2 to 4 handed over an incomplete flat to the complainant on 24.02.2012 and promised to complete all unfinished work by 31.10.2012. The OP nos. 2 to 4 also gave a written undertaking to the complainant to register the flat by executing a deed of conveyance in favour of the complainant within 31.10.2012. The undertaking made by the OP nos. 2 to 4 were recorded in the ‘Letter of Possession of residential flat’ dt. 24.07.2012 which was issued by the OP nos. 2 to 4 in favour of the complainant.
The complainant filed CC/165/2018 against the OPs. Notices were served upon them and OP nos. 1, 2, 3, 4 appeared and filed W.V. OP nos. 5 to 7 and 9 to 12 neither appeared nor filed WV. So, the case proceeded ex parte against them. OP 8 expired and was substituted by her two sons and two daughters. OP nos. 1 to 4 did not cross examine the complainants.
The case was fixed for final hearing. None appeared for OP nos. 2, 3 & 4. Heard the submission of the Ld. Counsel for the complainant. The cause of action according to the complainants arose initially on 29.01.2010 when the agreement for sale was signed. He prayed for direction upon OP nos. 2, 3 & 4 to complete the incomplete work of the flat as per schedule, for execution and registration of the deed of sale. He also prayed for completion certificate and compensation.
Heard and considered the submission of the Ld. Counsel of the complainant.
Although more than 5 years expired the OP nos. 2 to 4 did not complete the unfinished work and no conveyance deed was not executed in favour of the complainants. It is clear that OP nos. 2 to 4 have failed in delivery of service and have resorted to unfair trade practice. The complainants are a consumers in terms of section 2(i) (d).
The complaint case no. 165/2018, therefore, succeeds.
The complainant is directed to pay the balance consideration of Rs. 1,00,000/- to the OP nos. 1 to 4 / developer. On appraisal of the petition of complaint evidence filed by the complainant and annexures and upon careful consideration it appears that OP nos. 2 to 4 are deficient and negligent in delivery of service and have resorted unfair trade practice.
OP nos. 2, 3 & 4 are hereby directed to:-
1. Complete the incomplete work of the scheduled flat as per agreement within 60 days of this order.
2. To execute and register the deed of conveyance on receipt of balance consideration of Rs. 1,00,000/- from the complainants within 60 days of this order.
3. To handover completion certificate to the complainants by 60 days of this order.
4. The OP nos. 2, 3 & 4 are directed to pay a compensation of Rs. 1,00,000/- to the complainants for harassment and mental agony within 60 days of this order.
If order is not complied within the date, complainants are at liberty to put the order into execution.
CC/165/2018 is disposed of being allowed on contest.
Free plain copies are to be given to all parties.
