FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

The brief facts of the case are that the complainant Nos. 1 & 2 along with their co-sharers entered into a Development Agreement dated 10.08.2015 with the OPs 1 to 3 at Premises No. 51/1/A,  Nainan Musalman Para Lane, PS-Baranagar, Kolkata-700036. Complainant Nos. 1 & 2 including their  Co-sharers of aforesaid premises also executed and registered a General Power of Attorney in favour of OP-3 Ranjit Das, partner of OP-1 R. V. Construction. Complainant Nos. 2 and 3 booked a flat measuring about 502 sq. ft. on the 2^nd floor of the proposed building consisting of 02 Bed Rooms, 01 Dinning-cum-Kitchen, 01 Toilet and 01 Varandah. An Agreement for Sale dated 16.03.2016 was executed between complainant Nos. 2 and 3 and OPs 2 and 3 wherein it has been agreed that the total cost of the flat is Rs. 15,06,000/- and the complainant Nos. 2 and 3 have paid Rs. 10,55,000/- to the OP-1 on different dates against money receipts. As per Agreement for Sale OPs 1 to 3 are liable to be handed over possession of the booked flat within 31.07.2018. OPs miserably failed to comply the same. It is further averred in the complaint petition that the OPs did not handover possession of a flat measuring about 300 sq. ft. on the 2^nd floor of the proposed building to the complainant Nos. 1 and 2 violating the Development Agreement dated 10.08.2015. Alleging deficiency  in service and unfair trade practice  on the part of the OPs, the complainants approached the commission for getting relief and/or reliefs against the OPs.

No WV is filed by the OPs despite service of notice. Thus, the case runs ex parte against the OPs.

In support of their case complainant No. 2 Sushmita Chaudhuri tendered evidence supported by an affidavit and also relied documents annexed with the complaint petition. Complainants have also filed BNA. We have heard argument on merit and have also perused the record.

It is not in dispute that the complainant Nos. 1 and 2 including their other Co-Sharers of Premises No. 51/1/A, Nainan Musalman Para Lane, Kolkata-700036 entered into a Development Agreement dated 11.08.20115 with the OP-1 R. V. Construction represented by its parterre’s i.e. OPs 2 and 3 for construction of a G+3 storied building. Clause No. 6 of the Development Agreement go to show that all Co-sharers  will get 270 sq. ft. covered area as owners’ allocation, if any co-sharer is not willing to receive cash of Rs. 60,000/- in that event he/she shall be provided extra 30 sq. ft. covered area. Complainant Nos. 1 and 2 being the co-sharers did not receive cash of Rs. 60,000/-. Thus, they are entitled to get 300 sq. ft. covered area on the proposed G+3 storied building. Despite request, the OPs did not handover vacant possession of 300 sq. ft. covered area on expiry of 18 months from the date of execution of the Development Agreement.

We note that complainant Nos. 2 and 3 have booked a flat measuring about  502 sq. ft. on the 2^nd floor of the proposed building. An agreement for sale dated 16.03.2016 had executed between the complainant Nos. 2 and 3 in one part and OPs in other part. Sale price of the booked flat is Rs. 15,06,000/- and the complainant Nos. 2 and 3 have paid Rs. 10,55,000/- to the OP-1 against money receipts. OPs agreed to deliver physical possession of the booked flat within 31.07.2018. The OPs  did not offer possession of the booked flat despite several requests. OPs did not file WV though opportunity has been given to them. Thus, the allegations stated in the complaint petition remains unchallenged. Therefore, we can safely stated that on failure to file WV by the OPs tantamount to the admission of the allegations stated in the complaint petition. It is very unfortunate that as per Development Agreement and Agreement for Sale the OPs have failed to hand over physical possession of  300 sq. ft.  covered area and 502 sq. ft. flat on the 2^nd floor of the proposed building to the complainants Nos. 1 and 2 being the co-sharers of Premises No. 51/1/A, Nainan Musalman Para Lane, Kolkata-700036 and booked flat to the complainant Nos. 2 and 3 within in time mentioned in both the agreement dated 10.08.2015 and 16.03.2016. Complainant  Nos. 2 and 3 are ready to pay balance consideration amount to the OPs. It is not justify that the complainants by any means suffer any more time for the breach of both the agreement dated 10.08.2015 and 16.03.2016 on the part of the OPs.

            In the light of the above discussion, we are of the view that complainants are the “Consumers” under the provision of consumer Protection Act, 2019. We also find, both deficiency in service within the meaning of Section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act,  2019 to be well and truly evident on the part of the OPs:

On the basis of foregoing discussion, we find merit of the case and following directions are therefore, issued.-

1. OPs 2 and 3 being the partners of OP-1 R. V. Construction are jointly and severally directed to handover peaceful vacant possession of a flat  measuring about 300 sq. ft. on the 2^nd floor of the building being Premises No. 51/1/A, Nainan Musalman Para Lane, Kolkata-700036 in terms of the Development Agreement dated 11.08.2015 to the complainant Nos. 1 and 2.
2. OPs 2 and 3 being the partners of OP-1 firm are jointly and severally directed to handover physical possession of the flat measuring about  502 sq. ft. on the 2^nd floor of the building to the complainant Nos. 2 and 3 on receiving balance sale price and also execute and register Deed of Conveyance as per Agreement for Sale dated 16.03.2016.
3. OPs 2 and 3 being the partners of OP-1 are jointly and severally directed to pay Rs. 50,000/- (Rupees fifty thousand) only to the complainants as compensation for mental harassment.
4. OPs 2 and 3 are jointly and severally directed to pay Rs. 10,000/- (Rupees ten thousand) only to the complainants as litigation cost.

OPs are directed to comply the order within a period of three months from the date of the order. In case the OPs fail to comply the order, in that event, complainants may file Execution Application U/s 71 & 72 of the Consumer Protection Act, 2019 against the OPs.

Copy of the judgment be supplied to the parties as per rules. Upload this order on the website of this Commission  immediately for perusal of the parties.