FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

Brief facts as narrated in the complaint are that OP-1 is a Developer and OP-2 is  landlord of KMC Premises No. 597 VIP  Nagar, PS Anandapur, Kolkata-700100. OP-2 Parul Bala Das, since deseased desirous to develop her land by raising  a 04 storied building thereon and a Development Agreement was executed between the OP-1 & OP-2 in this regard. OP-2 also executed a registered Power of Attorney in favour of the OP-1/Developer. An Agreement for Sale was executed between the complainant and OP-1/Developer on 15.10.2015. In terms of the agreement, Developer agreed to sell one flat measuring about 350 sq.ft. super built area on the ground floor south west portion consisting of 01 Bed Room, 01 Dinning cum Kitchen and 01 Bathroom of the proposed building from his allocation. Sale price of the booked flat is Rs. 7,00,000/-. Complainant has paid a sum of Rs. 6,00,000/- to the OP-1 against money receipts. Despite that the OP-1/Developer failed to deliver vacant possession of the booked flat. Complainant repeatedly enquired from the Developer regarding the status of his flat on several dates but the OP-1 did not give any satisfactory reply. Alleging deficiency in service and unfair trade practice on the part of the OPs, the complainant has filed the present consumer complaint. During pendency of the consumer complaint, OP-2 Parul Bala Das died and her legal heir has been substituted vide order dated 13.02.2020.

            No WV is filed by the OPs. As such, the case runs ex parte against the OPs.

Complainant has filed his E/chief. The Ld. Advocate for the complainant argued that there is clear gross negligence and deficiency in service on the part of the OP-1/Developer as in spite of payment of Rs. 6,00,000/- to the Developer out of total sale price of Rs. 7,00,000/- he did not deliver possession of the booked flat to the complainant. The complainant on several occasions, requested the OP-1 to handover possession of the flat in question on receiving balance sale price of Rs. 1,00,000/- but in vain. Ld. Advocate has prayed for handover physical vacant possession of the booked flat on receiving balance sale price and also execution and registration  of Deed of Conveyance. Considered the submission of the Ld. Advocate for the complainant and also considered his submission. Perused all the relevant documents.

Before explaining the other issues involved in the complaint case, we try to decide whether the instant complaint case falls well within the purview of Consumer Protection Act or not as well as whether there is any gross negligence or deficiency in service on the part of the OPs.

Regarding the payments made by the complainant, we take to following notes:

Facts remains that the complainant had already paid Rs. 6,00,000/- to the OP-1/Developer on different dates out of total sale price of Rs. 7,00,000/- in respect of the flat measuring about 350 sq. ft. on the ground floor of the proposed building which is clearly revealed from the Agreement for Sale dated 15.10.2015. Thus, the complainant comes well within the purview of the definition of the “Consumer” as per Consumer Protection Act,  2019.

Now, it is pointed out that no WV has been filed by the OP. Though opportunity has been given to them for filing WV. As such, the allegations stated in the complaint petition remains unchallenged. Thus, we can safely state that on failure to file WV by the OPs tantamount to the admission of the allegations alleged in the complaint. The Agreement for Sale clearly speaks that the OP-1/Developer sell the booked flat from his own allocation. Complainant is ready to pay the balance sale price to the OP-1/Developer but the Developer is not ready to deliver vacant possession of the flat on receiving balance sale price. Complainant by any means suffers from loss of money and time for the breach of the agreement on the part of the OPs. Under the above facts and circumstances, the gross negligence and deficiency in service on the part of the OP-1/Developer is proved and the complainant cannot be denied the relief and compensation in light of this settled position.

For the aforesaid reasons, we are inclined to accept the contentions of the complainant and to order as follows.

1. OP 1 is directed to handover peaceful vacant possession of the flat measuring about 350 sq. ft.  Including 20 % super build up area on the ground floor of KMC  Premises No. 597, VIP  Nagar, PS Anandpur, Kolkata-700100 to the complainant on receiving balance sale price of Rs. 1,00,000/- (Rupees one lac). OPs are also directed to execute and register Deed of Conveyance in favour of the complainant. 

2. OP-1/Developer is directed to handover completion certificate of the building to the complainant.

3. OP-1/Developer is directed to pay Rs. 25,000/- (Rupees twenty five thousand) only to the complainant by way of compensation.

4. OP-1 is directed to pay Rs. 5,000/- (Rupees five thousand) only to the complainant towards cost of litigation.

5. The aforesaid direction shall be complied within a period of 90 days from today. It is also made clear that for non-compliance, the provisions enshrined U/s 72 of the Consumer Protection Act, 2019 would also be attracted.

The consumer complaint could not be decided within the statutory period due to Covid-19 Pandemic.

Copy of this judgment be provided to the parties as per rules. The Judgment be uploaded forthwith on the website of this Commission for perusal of the parties