For the Complainants                         - Mr. Ataur Rahaman, Advocate        

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.12 of the C.P. Act, 1986.

The brief facts of the case are that the father of the complainant namely Sk. Nizamuddin, since deceased and his two brothers Sk. Asgar Ali and S.K. Md. Choton and their  nephew  named Sk. Musa are the co-owners  of KMC premises No. B/4/H/3/5, Convent Lane, Kolkata – 700 015. The said premises  measuring about 01 cottah 11chittacks and 25 Sq. ft. more or less. They had entered into an Development Agreement with the OP for construction of a G + 02 storied building in the said premises. The OP started construction of the building after demolishing of the old structure standing therein. The complainant had entered into an Agreement for Sale with the OP in respect of a flat consisting of two rooms, balcony with kitchen, bath and privy on the 4^th floor of North Western portion of the said building measuring about 600 Sq. ft. super built up area  at the rate of  Rs.800/- per Sq. ft. Complainant paid Rs.1,00,000/- to the OP at the time of execution of the Agreement for Sale. It is stipulated in the said agreement that the OP will handover possession of the said flat to the complainant within a period of 01 year from the date of execution of Agreement for Sale. On completion of the building, the OP handed over one flat measuring about 240 Sq. ft. more or less to the complainant with an assurance that he will be shifted in the said building within one year. Despite completion of construction work, the OP did not handover 300 Sq. ft.  area on the 4^th floor of the  subject building to the complainant and tried to sale the flat to third party against huge ‘salami’. There is deficiency of service and unfair trade practice on the part of the OP and this Forum have pecuniary jurisdiction to entertain and adjudicate the consumer complaint. Hence, the complainant has filed the instant consumer complaint praying for direction upon the OP to handover one flat  measuring about 300 Sq. Ft. more or less on the 4^th floor of the said building including compensation of Rs.1,50,000/-, punitive damage of Rs.200/- per day and litigation cost.

OP despite service of notice of the complaint has failed to file W/V within the limitation provided U/s 13 (2) of the C.P. Act. 1986. No request for condonation of delay or extension of time for filing W/V was made. Thus, the right of the OP to file W/V was closed on 27.09.2019.

Decision with Reasons

Complainant Md. Alamgir has filed his evidence by way of affidavit supporting the allegations made in the complaint. Ld. Advocate for the complainant has taken us through the consumer complaint as also the evidence adduced in support of the complaint. On perusal of the Agreement for Sale dated 14.12.2012 executed between the OP in one part and the complainant in other part, it is clear that vide said Agreement for Sale, the OP agreed to sale 600 Sq. ft. of super built up area consisting of two rooms, balcony with kitchen, bath and privy on the 4^th floor in the North Western portion of the proposed building  at the rate of  Rs.800/- per Sq. ft. It further appears to us that at the time of execution of sale agreement the complainant has paid Rs.1,00,000/- to the OP and the flat will be handed over within one year from the date of execution of the Agreement for Sale. Money receipts dated 16.04.2013 and 15.09.2013 go to show that the complainant paid Rs.1,14,000/- and Rs. 1,60,000/-  to the OP as partial consideration amount of the flat as per agreement for sale dated 14.12.2012. Thus, it is crystal clear that the complainant has paid Rs.4,04,000/- to the OP out of total consideration of Rs.4,80,000/- (Rs.800/- x 600 Sq.ft). Therefore, it is clear that the complainant is liable to pay balance consideration amount of Rs.76,000/- to the OP in respect of the flat in question. Complainant alleged that out of 600 Sq. ft.  super built up area the OP  handed over one room measuring about 240 Sq. ft. more or less out 600 Sq. ft. super built up area and the OP assured to handover 300 Sq. ft. area more or less on the 4^th floor of the subject building but ultimately, failed to handover 300 Sq. ft. of area (more or less).  Complainant has categorically alleged in the complaint that he has paid Rs.4,04,000/- out of the total  consideration amount to the OP but even more than 06 years after the expiry of stipulated date of delivery of possession, the OP has failed to deliver remaining portion of the super built up area measuring about 300 Sq. ft. to the complainant. As the OP has opted not to file W/V despite service of notice of the complaint. The above allegations of the complainant is deemed to have been admitted as correct.  In order to prove said allegations complainant has filed his affidavit reaffirming the allegations made out in the consumer complaint. Thus, it stands proved that despite of having received Rs.4,04,000/- the OP has failed to deliver possession of 300 sq. ft. more or less on the 4^th floor of the subject building to the complainant. In absence of any explanation for failure to comply with the stipulation of delivery of possession in respect of remaining portion, we have no hesitation in concluding that the OP has committed deficiency in service as also indulged in unfair trade practice. Thus, in our view, the OP is liable to handover possession of 300 sq. ft. super built up area on the 4^th floor of the subject building to the complainant after receiving balance consideration amount of Rs.76,000/-.

In view of the above discussion, the complaint is allowed ex parte against the OP with following directions :-

1. The OP is directed to handover 300 sq. ft. super built up area on the 4^th floor of the subject building on receiving balance consideration amount of Rs.76,000/- within 45 days from the date from today in terms of the agreement for sale dated 14.12.2012,
2. The OP is directed to pay Rs.15,000/- (Rupees fifteen thousand) only as compensation on account of mental agony and physical harassment suffered by the complainant.
3. The OP shall pay a sum of Rs.5,000/- (Rupees five thousand ) only towards litigation expenses to the complainant.
4. Complainant shall pay balance consideration amount of Rs.76,000/- (Rupees seventy six thousand) only to the OP within the stipulated period of 45 days.

The above directions be complied by the parties within the stipulated period of 45 days failing which the complainant shall be at liberty to execute the order by filing application Under Sections 25 and 27 of the CP Act, 1986 against the OP.

Order be communicated to the complainant as per rules.