Brief facts necessary for the adjudication of the present complaint are that OPs 1 to 4 are the joint owners of a land measuring about 500 sq. ft.  situated under R S Dag No. 2206, J L No. 10 at Mouza - sultanpur within the limits of Dum Dum Municipality being Premises No. 103, Manasbhumi Lane, Kolkata -700 079. They entered into a registered Development Agreement dated 10.03.2016 with OP 5 to construct a multi storied building over the above-mentioned land. OPs 1 to 4 also executed a registered Power of Attorney dated 10.03.2016 in favour of the OP 5. Complainant booked a self contained flat measuring about 300 sq. ft. with 20 percent super build up area  at the rate of Rs. 3,000/- per sq. ft. on the newly constructed building at  a total consideration of Rs. 9,00,000/- and entered into an Agreement for Sale dated 19.04.2017 with the OPs. As per Agreement, complainant has already paid Rs. 7,35,000/- to OP-5, being the owner of  Bengal Construction against money receipt. In terms of the agreement the complainant shall get possession of the subject flat within 12 monhts from the date of execution of agreement for sale. 

           Complainant has stated that after expiry of 12 months from the date of execution agreement for sale, she approached the OP-5/developer to handover physical possession of the subject flat and the OP-5 asked her to handover the agreement for sale dated 19.04.2017. On good faith the complainant has handed over the original agreement for sale to the OP-5 but the OP-5 did not return the original agreement for sale to her.

            Despite  request, the OP-5 did not deliver possession of the subject flat in her favour. Hence, the complainant approached the commission on the allegation of deficiency in service and unfair trade practice on the part of the OPs with the prayer for several reliefs - Viz - (a) to direct the OPs to execute and register Deed of Conveyance, (b) alternatively to refund Rs. 7,35,000/- as consideration money along with interest  (c) to direct the OPs to pay Rs. 5,00,000/- as compensation towards mental agony and harassment and (d) to direct the OPs to pay litigation cost of Rs. 20,000/- etc.

 Despite service of notice of the complaint, the OPs did not turn up to contest the case by filing written version within the statutory period provided under the Consumer Protection Act, 2019. Thus, the case runs ex-parte against the OPs.

Complainant Smt. Pratima Devi Rajak has filed E/chief by way of affidavit in support of her case. She has also relied the documents annexed with the petition of complaint.

We have perused the material available on record and heard the Counsel for the complainant.

The fact that the complainant had booked a self contained flat measuring about 300 sq. ft. with 25  percent super build up area on the proposed building at Premises No. 103, Manasbhumi Lane, Ward No. 2 under Dum Dum Municipality, Kolkata – 700 079. Complainant alleges that an agreement for sale was executed between the parties in respect of the subject flat and the total sale price of the flat is Rs. 9,00,000/-. Complainant further alleges that on being demand of OP-5/Developer she handover the original agreement for sale dated 19.04.2017 to the OP-5 but the OP-5 did not return the same to her.

Complainant claims that out of total sale price of Rs. 9,00,000/- she has already paid Rs. 7,35,000/- to the OP-5 against money receipt. Complainant fails to produce any money receipt to establish that she has paid Rs. 7,35,000/- to the OP-5 as part sale price of the subject flat. Money receipt dated  15.09.2017 goes to show that OP-5 being the proprietor of Bengal Construction received Rs. 4,00,000/- from the complainant as booking amount of the flat situated at Premises No. 103, Manasbhumi Lane, Kolkata – 700 079. It has been mentioned in the said money receipt that the area of the subject flat is 300 sq. ft. with 20  percent super build up area and the total sale price of the flat is Rs. 9,00,000/-. Complainant failed to establish that she has paid Rs. 7,35,000/- to the OP-5 as part payment of sale price of the flat. It was the duty of the complainant to lodge GD entery to local PS with regard to non return of original agreement for sale dated 19.04.2017 but the complainant did not take any steps in this regard. Thus, it is clearly evident from the receipt issued by the OP 5 attached with the complaint petition that the complainant has paid Rs. 4,00,000/- to the OP-5 as booking money of the subject flat. Execution and registration of the subject flat is not tenable as no where the complaint petition it is mentioned that in which floor the complainant booked the subject flat. Thus the prayer  for execution and registration of the subject flat is refused.  

The Consumer Protection Act, 2019, came into force in order to protect the interest of consumers who are affected by the acts of the service providers, who in order to attract the consumers, tend to make lucrative offers but when it comes to actually providing the offered services, they take a step back.

The Consumer Protection Act, 2019 defines a consumer as follows -

‘’2 (7)  “consumer ” means any person who-

              (i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose, or

             (ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

          Explanation. -For the purposes of this clause,

         (a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment,

         (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

deficiency has been defined under section 2 sub section (11) which reads as follows -

        "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes-

          (i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and

          (ii) deliberate withholding of relevant information by such person to the consumer;

           Returning to the facts of the present complaint that the complainant entered into an agreement for sale to avail the services of the OP 5 for a consideration of Rs. 4,00,000/-. However, the OP 5 failed to honour the money receipt with regard to subject flat, aggrieved by which, the complainant has approached this commission. Hence, the complainant is entitled to file the present complaint before this Commission since the complainants are aggrieved by the deficient services of the OP 5 to handover the possession of the subject flats on receiving balance sale price.

The dicta of the Hon’ble Supreme Court in Narne Construction Pvt. Ltd., etc. –Vs- Union of India & Ors. etc., reported in AIR 2012 SC 2369, wherein it was held that when a person applies for the allotment of a building or site or for a flat constructed by the Development authority and enters into an agreement with the Developer, or the contractor, the nature of transaction is covered by the expression “service” of any description. Housing construction or building activity carried on by a private or statutory body constitutes ”service” within the ambit of section 2 sub section 42 of the Act and any deficiency or defect in such service would make it accountable before the competent consumer forum at the instance of consumers. Moreover, the OPs did not contest the case by filing WV denying the allegation of the complainants as stated in the complaint petition.

A failure of the Developer to comply with the contractual obligations to provide the flat to a flat purchaser within a contractually stipulated period amounts to a deficiency. There is a fault, shortcoming or inadequacy in the nature and manner of performance which has been undertaken to be performed in pursuance of the contract in relation to the service. The expression “service” in section 2(42) means a service of any description which is made available to potential users including the provision of facilities in connection with (among other things) housing construction.

In these circumstances, it is clear that the OP 5 failed to offer possession of the subject flat within the stipulated period on receiving balance sale price. Consequently, we hold that the OP 5 deficient in providing his services to the complainant as the OP 5 had given false assurance to the complainant with respect of handing over the possession of the subject flats and kept the hard earned money of the complainant for about 05 years. We do not find any deficiency in service and unfair trade practice on the part of OPs 1 to 4/land owners.

Keeping in  view the facts of the present case and extensive law as discussed above, we directed the OP 1 to refund the consideration amount of Rs. 4,00,000/- paid by the complainant along with compensation and litigation costs as per following arrangement -

1. OP 5 is directed to refund booking amount of Rs. 4,00,000/- to the complainant,
2. OP 5 is further directed to pay Rs. 50,000/- for mental agony and harassment to the complainant and
3. OP 5 is also directed to pay Rs. 10,000/- as litigation cost to the complainant.

The above amount must be paid within 60 days from the date of order, in default; the complainant shall have the liberty to get the award in an execution proceeding in accordance with law.

Thus, the consumer case is allowed in part ex-parte against the OP 5 and dismissed ex-parte against the OPs 1 to 4/land owners.

A copy of this judgment be provided to the parties free of cost as mandated by the CP Act, 2019. The judgment be uploaded forthwith on the website of the commission for perusal of the parties.

File be consigned to the record room along with a copy of this judgment.