HON’BLE MR. JUSTICE MANOJIT MANDAL, PRESIDENT

1. This appeal has been filed by the appellant / complainant against the respondents / opposite parties challenging the order dated 18/04/2023 passed by the Learned District Consumer Disputes Redressal Forum, Kolkata, Unit-II ( in short, ‘the District Commission’) in connection with complaint case No. CC/371/2020 whereby the Learned District Commission allowed the complaint filed by the appellant / complainant.

2. The appellant / complainant instituted a complaint case being No. CC/371/2020 against the respondents / opposite parties praying for the following reliefs :-

“i) To handover possession of the Schedule mentioned property to the Complainant by waiving payment of the balance consideration money of Rs.1,37,500/- + applicable taxes (for the said car parking space) + Rs.89,000/- + Tax (for the said flat) by adjusting the same against the compensation due and payable to the Complainant in terms of Clause 11d of GTC and at the time of handing over of such possession to handover completion certificate and/or occupancy certificate related to the Schedule mentioned property to the Complainant;

ii) To withdraw all present and future demands of CAM charges and to raise fresh demand only upon handing over possession of the Schedule mentioned property to the Complainant;

iii) To pay the balance compensation to the Complainant, calculated @ Rs.12.50 per sq. ft. with effect from 1.9.2017 till the date of handing over of possession of the Schedule mentioned property in its entirety to the Complainant, upon deducting the amount adjusted against balance consideration money of Rs.1,37,500/- + applicable taxes (for the said car parking space) + Rs.89,000/- + Tax(for the said flat), for delayed delivery of the Schedule mentioned property, in terms of Clause 11(d) of the GTC [As on the date of filing of this complaint the compensation amount stands at Rs.4,16,000/-]

iv) To withdraw the Notice dated 3.2.2020 and to issue a fresh demand as per actual

v) To restrain the Opposite Parties herein from cancelling or rescinding the GTC/ Agreement in respect of the Schedule mentioned properties in any manner or form and to prevent them from letting out and/or alienating the Schedule mentioned property in favour of third Party and /or restraining the Opposite Parties from creating any right, liability or interest therein in favour of anyone except the Complainant herein;

vi) To execute and register appropriate Deed of Conveyance in respect of the Schedule mentioned properties in favour of the Complainant immediately;

vii) To pay Compensation of Rs.5,00,000/- for causing hardships, mental harassment and agony, etc. to the Complainant;

viii) To pay Litigation costs to the tune of Rs.60,000/- to the Complainant;

ix) To pay Cost of Legal Notice of Rs.5,000/- to the Complainant;

x) To pass such further and/or other order or orders and/or direction or directions as Your Honour may deem fit and proper in the interest of justice.”

3. The respondents / opposite parties entered appearance in this case and were contesting the case by filing written version and denying the allegations made in the petition of complaint. In support of their claim both parties have tendered evidence and the complainant has also relied upon some documents annexed with the petition of complaint. Both the parties have filed questionnaires and replies against each other. Both the parties also filed BNA before the Learned District Commission.

4. After hearing both sides and considering the facts and circumstances of the case the Learned District Commission was pleased to allow the complaint case being No. 371 of 2020 by the order impugned which is reproduced as under :-

“a) to hand over the possession of the said flat and car parking space and also pay compensation charges to be calculated @ of Rs.12.50 per square feet of the chargeable area of the apartment per month with effect from the schedule date of possession till the date of possession to the complainant as per General Terms & Conditions;

b) OP 1 is also directed to pay compensation to the tune of Rs.20,000/- for mental agony and harassment to the complainant together with litigation costs of Rs.10,000/-;

c) The aforesaid direction shall be complied with within a period of six weeks from today, failing which the amount shall carry interest @ 9% per annum till its realization.”

5. Being aggrieved by and dissatisfied with the impugned order the appellant / complainant has preferred the instant appeal.

6. Notices were duly served upon the respondents and the respondents appeared in the case but ultimately they did not contest the appeal and did not file BNA. As such, the instant appeal was heard ex parte against the respondents.

7. Learned Counsel appearing for the appellant has argued that at the time of passing the impugned order the Hon’ble District Commission failed to appreciate that the complainant in para VI of the petition of complaint had specifically asked before the Hon’ble Commission for direction upon the opposite parties to execute and register appropriate Deed of Conveyance in respect of the Schedule mentioned property in favour of the complainant immediately.

8. He has further urged that, however, while passing the final order, the Hon’ble Commission has allowed the complaint by directing the opposite parties to pay compensation but has failed to direct the opposite parties to register the Deed of Conveyance.

9. He has further urged that the Hon’ble District Commission has failed to direct the opposite parties to obtain the completion certificate and to hand over the same to the complainant. As such, the Learned Counsel appearing for the appellant pressed for modification of the impugned order and judgment passed by the Learned District Commission.

10. Having heard the Learned Advocate appearing for the parties and on perusal of the record, it appears to me that there are substance in the submission as made by the Learned Advocate appearing for the appellant / complainant.

11. On scrutiny of the petition of complaint it appears to me that in para VI of the petition of complaint, the complainant has specifically asked before the Commission for direction to execute and register the appropriate Deed of Conveyance in respect of the Schedule mentioned property in favour of the complainant immediately. But the Learned District Commission has failed to pass and allow the said order. It also appears to me that the opposite parties have not yet obtained the completion certificate from the competent authority.

12. Under these facts and circumstances I hold that the complainant has been able to prove that there is a clear deficiency in service on the part of the opposite parties on the ground of unfair trade practices within the meaning of unfair trade practices under the Consumer Protection Act, 2019 as the opposite parties failed to execute and register the appropriate Deed of Conveyance in respect of the Schedule mentioned property in favour of the complainant and to obtain the completion certificate or the occupancy certificate from the appropriate authority i.e. the concerned Municipality.

13. Under these facts and circumstances and on consideration of the materials on record I find that the Learned District Commission has acted without application of mind in passing the impugned order dated 18/04/2023. So, the said order should be modified.

14. In the result, the appeal be and the same is allowed against the respondents. The opposite parties are directed to execute and register the appropriate Deed of Conveyance in respect of the Schedule mentioned property in favour of the complainant within 45 days from the date of passing of this order. The opposite parties are also directed to hand over the completion certificate in respect of the Schedule mentioned property to the complainant at the time  of handing over of possession to the complainant.

15. Other portions of the impugned order dated 18/04/2023 passed by the Learned District Consumer Disputes Redressal Forum, Kolkata, Unit-II remain unaltered.

16. The appeal is, thus, disposed of accordingly.