FINAL ORDER/JUDGEMENT
SMT. SUKLA SENGUPTA, PRESIDENT
The Instant petition of complaint has been filed by the complainant U/s 34 of CP Act, 2019
The fact of the case in brief is that the complainant is residing under the jurisdiction of this commission and OPs 2 to 5 are the owners of all that piece and parcel of land measuring about 6 cottahs 12 chittaks situated at Mouza Garden Reach and recorded in the new RS
Sheet No. 114 and 115, RS Dag No. 33 and 34, under the RS Khatian No. 21 Dag No. 225 and 06 under the khatian Nos. 158, 186, 187 and 230 situated within the limit of KMC ward No. 134 vide KMC assessee No. 51-134-07-0052-04 being premises No. 520 by 2, Banerjee Bagan Lane (East) Kolkata 700024.
The OP-1 is a developer/promoter who constructed a G+3 storied building on the said land on the basis of a development agreement executed by and between the OP-1 and the OPs-2 to 5.
It is further stated by the complainant that he intend to purchase a new self contained flat measuring about 400 sq. ft. super built up area on the 3rd floor of the newly construed building @ Rs. 1,700/- per sq. ft. as described in the schedule “B” of the petition of complaint. Accordingly, the complainant entered into an agreement for sale with the OP-1 in respect of afore mentioned flat in question on 11.08.2017. The copy of the said agreement for sale has been annexed herewith as annexure “A”.
It is further stated that on the date of agreement for sale the complainant paid a sum of Rs. 1,50,000/- to OP -1/developer as ernest money. The bank statement to that effect has been annexed herewith as annexure “B”.
It is further alleged by the complainant that even after passing one year and more, the OP-1 failed to handover or deliver the flat in question to the complainant and he met the OP-1 in this respect on several occasions in different places and the OP-1 assured him that he will hand over the said flat in question as mentioned in the schedule “B” of the petition of complaint very soon, but the OP-1 failed to hand over the flat in question that is B schedule property to the complainant till this date.
Hence, the petition of complaint is filed by the complainant before this commission with a prayer to give direction to the OP-1 either to deliver and handover the possession of flat in question (B schedule flat) and to give direction to the OP-1 either to execute the registered deed of conveyance in respect of flat in question on receipt of the balance amount of the consideration or to refund the ernest money of Rs. 1,50,000/- only paid by the complainant along with interest @ 18 % p.a. till the date of actual realisation paid by the complainant along with compensation of Rs. 1,00,000/- for harassment, unfair trade practice , mental pain and agony due to deficiency in service on the part of the OP and also prayed for litigation cost of Rs. 50,000/-.
In view of the above facts and circumstances, the points of consideration are as follows:-
1. Is the case maintainable in its present form in law?
2. Is the complainant a consumer?
3. Is there any deficiency in service on the part of the OPs?
4. Is the complainant entitled to get relief as prayed for?
5. To what other relief or reliefs is the complainant entitled to get?
Decision with Reasons.
All the points of consideration are taken up together for convenience of discussions and to avoid unnecessary repetitions.
On a close scrutiny of materials on record it is revealed that even after receipt the notice of this case, the OPs did not appear and contest the case. Hence, the case do run ex pate against them by this commission vide its order dated 03.01.2023.
From the ex parte, E/chief and document along with other materials on record, it appears that the OPs 2 to 5 are the land owners and the OP-1 is the developer of the premises in question where the flat in question measuring about 400 sq. ft. super built up area is situated on the 3rd floor of the newly constructed building as mentioned in the schedule B of the petition of complaint.
It is also evident from the unchallenged testimony of the complainant that he intends to purchase the flat in question @ Rs. 1,700/- per sq. ft. (400 sq. ft. ) from the OP-1/developer and entered into agreement for sale with the OP-1 developer on 11.08.2017 and paid a sum of Rs. 1,50,000/- as ernest money towards the consideration of flat in question as shown from the annexure “A” and “B”.
From the evidence on record, it is also revealed that the OP-1 failed to handover the flat in question as mentioned in scheduled B of the petition of complaint to the complainant even after expiry of the stipulated period. The complainant is requested the OP-1 to handover the flat in question and to execute and register the deed of conveyance in respect of “B” schedule flat on receipt of balance consideration money but the OP-1 though assured him but practically, he did not comply his assurance till the date of filing of this case. Such conduct of OP-1 caused harassment, mental pain and agony to the complainant and compelled to file this case before the commission for getting relief.
On careful consideration of the facts and circumstances as well as evidence on record of this case, this commission did not find any reason to disbelieve the ex parte evidence of the complainant and opined that the conduct of the OP-1 caused harassment, mental pain and agony to the complainant and violated the terms and condition of the agreement for sale (annexure-A) which should be considered as deficiency in service on the part of the OP-1 and other OPs.
On the basis of discussion made above, this commission is of view that the complainant could be able to prove his case beyond all reasonable doubt and is entitled to get relief as prayed for.
The case is properly stamped.
All the points of consideration are decided favourably to the complainant
Hence,
Ordered
That the case be and the same is decreed ex parte against the all OPs with cost.
The complainant do get ex pate decree.
The OP-1 is directed either to deliver the possession of the flat in question as mentioned in B schedule of petition of complaint by executing a registered deed of conveyance on receipt of balance consideration money or to refund the ernest money of Rs. 1,50,000/- (Rs. One lac Fifty Thousand) only along with interest @ 9 % p.a. on the amount from the date of filing of the case till the actual realisation within 45 days from this date of order.
The OPs 1 to 5 are directed to pay the compensation to the complainant of Rs. 50,000/- only either jointly or severally for harassment, mental pain and agony along with litigation cost of Rs. 10,000/- only within 45 days from this date of order .
If the OPs are failed to comply the decree within stipulated period then the complainant is at liberty to execute the decree as per law.
Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the party.
