Presented by: -

                        Shri Debasish Bandyopadhyay, President.

The complainant has filed this instant complaint case against the OPs for passing direction to the OPs to execute and register the sale deed and also for awarding  compensation  of Rs. 1,00,000/-  for their gross deficiency in service  as well as unfair trade practice and also for awarding litigation cost of Rs. 25,000/-

Fact of this case

Complaint Case – The case of the complainant which is deciphered  from the petition of complaint in bird’s eye view  is that the OP Nos. 3 to 9 are the landlords  and / or owners in respect of 6 Cottahs of land comprising within the Uttarpara Kotrong  Municipality  having Holding No. 85, Kotrong Ghosh Para Lane, P.O.  Hindmotor, P.S. Uttarpara, Dist. Hooghly situated at  R.S. Plot Nos. 1336, 1337, 1338 & 1337/4316 under R.S. Khatian No. 192 of Mouza - Kotrong  J.L. No.  8, P.S. Uttarpara , Dist. Hooghly and OP No. 2 is the developer in respect of the said property and Op No. 2 is carrying on the said business of developer  under the name  of the OP No.1.  It is also the case of the complainant that OP Nos. 3 to 9 entered into the development of agreement with the OP Nos. 1 & 2  and also executed a power of attorney in favour of the OP Nos. 1 & 2.  It is also  submitted that on 27^th October, 2014 the complainant entered into an agreement for sale with the promoter / developer i.e. OP Nos. 1 & 2  and according to the said agreement for sale the OPs assured  and / or agreed to provide a residential flat being Flat No. 301 measuring about 720 sq. ft.  including  super built up area at the 3^rd Floor  of the said building consisting of two bed rooms, one dinning cum living hall, one kitchen , balcony  and one toilet  including  proportionate  areas and undivided  share of land  which is comprised  within the  project  at  Premises No. 85, Kotrong Ghosh Para Lane, P.O. Hindmotor, P.S. Uttarpara, Dist. Hooghly and  total consideration money was fixed as Rs. 14, 30,000/- and complainant  has paid Rs. 16,21,000/- which is excess than the  agreed amount.  It is alleged  that according to the agreement for sale the OPs had undertaken  to complete the said project and also agreed to hand over  the newly constructed flat  and also to execute  and register the deed of conveyance  within  October, 2015  but after the expiry  of the said stipulated period  the OPs  failed to deliver possession of the said Flat  No. 301 to the complainant and also failed to execute and register  the deed of conveyance  in favour of the complainant in respect of the said residential flat.  It is further alleged that the complainant thereafter had sent legal notice  to the OPs  for the purpose of execution and registration of the deed of conveyance  and also for delivery of possession  in respect of said Flat No. 301 of Holding No. 85, Kotrong Ghosh Para Lane, P.S. Uttarpara, Dist. Hooghly .  For all these reasons the complainant has prayed before this District Commission for handing over possession of the said flat and also to execute  and register the deed of conveyance  in favour of the complainant  and also to pay compensation of Rs. 1,00,000/-  and litigation cost of Rs. 25,000/-.

Defense Case

In this case the OP Nos. 1 & 2  in spite of receiving notice and / or summons have not appeared  and also have not filed any  W/V and so this case has been proceeded exparte  against OP Nos. 1 & 2 vide Order No. 33 dt. 29.11.2021.  The OP Nos. 3 to 9 appeared in this case  but due to the reason best known  you that the OP Nos. 3 to 9  have neither filed any W/V  nor have  filed any document.

Points of consideration

On the basis of the above noted pleadings of the parties this District Commission for the interest of proper  and complete adjudication  of this case and also for  arriving at just and proper decision in this case is going to adopt the following points of consideration :-

1. Is this case maintainable in its present form and in the eye of law?
2. Has this District Commission territorial & pecuniary jurisdiction to try this case or not?
3. Whether the complainant is a consumer under the OPs ?
4. Whether the complainant has cause of action for filing this case or not?
5. Is the complainant  entitled to get a decree directing the OPs for handing over possession of Flat No. 301 of the  said flat and to execute and register the deed of conveyance in  respect of the said flat and to get compensation  to the tune of Rs. 1,00,000/- and to get litigation cost of Rs. 25,000/- or not.

Evidence on record

In order to prove this case  the complainant has filed evidence  on affidavit but as the OP Nos. 1 & 2  are not contesting  this case  and as the OP Nos. 3 to 9 have been restrained  from filing evidence on affidavit,  they have not filed any  interrogatories against the evidence on affidavit filed by the complainant.

On the other hand, the OPs  also have not filed any evidence on affidavit  to disprove  the case of the complainant.

Argument highlighted by the parties

At this stage  the complainant side has only filed Brief Notes of Argument and also  have highlighted their verbal  argument to the OPs  have neither appeared nor  filed any  Brief Notes of Argument  at the argument stage.

 Decision with reason

The first 4 (four) points of consideration are interlinked and or interconnected with one another.  For that reason and also for the interest of convenience of discussion this District Commission clubbed these 4 (four) issues and taken up for discussion jointly.

For the purpose of deciding  this fate of these above noted 4(four) points of consideration, this District Commission  after going through the evidence on record finds  that the  OPs  3 to 9 executed  on development agreement with OP Nos. 1 & 2  and also executed  power of attorney in the matter of development of the said project  at Premises No. 85 , Kotrong Ghosh Para Lane, P.S. Uttarpara, Dist. Hooghly and thereafter  the complainant entered into  an agreement  for sale  on 24^th October, 2014  and as per Clause No. 7  of the said agreement the OPs were supposed to deliver possession  and to execute  and register  the sale deed  within October 2015 but the OPs  have failed to  do the same in spite of getting  money of Rs. 16,21,000/- from the complainant.  This matter is clearly  reflecting  that this complaint  case is maintainable  and the complainant is a consumer  under the OPs and the complainant  has cause of action for filing this case.  After going through the material of this case record this District Commission finds  that the complainant are the resident of Uttarpara area of the District  of Hooghly and OP Nos. 3 to 9 are also the resident of Kotrong , Uttarpara area of the District of  Hooghly but  the OP Nos. 1 & 2  are carrying  on business at Salkia under P.S. Malipanchghara and so  this District Commission has territorial jurisdiction to try this case.  Moreover, the claim  of the complainant  is far below the amount of Rs. 20,00,000/-  and so this District Commission has its pecuniary  jurisdiction to try this case.

Thus all the first 4 (four) points of consideration which have been framed in this case are decided in favour of the complainant side.

Relating to points of consideration No. 4 & 5  this District Commission after making scrutiny  of the material  of this case record noticed that the evidence given by complainant side has not been challenged  and / or controverted  by the OPs  and so   the evidence which is given  by the complainant in this case remains unchallenged and / or uncontroverted and there is no reason to disbelieve  the said  unchallenged and / or uncontroverted evidence  of the complainant.

More so, on close examination of the material of this case record this District Commission further  observed that the evidence given by the complainant   this also supported by documents.  It is admitted  fact that the OPs  in spite of  getting of Rs. 16,21,000/- from the complainant  have neither handed over the possession  to the complainant  in respect of Flat No. 301 of the residential  unit situated  at Premises No. 85, Kotrong  Ghosh Para Lane,  P.S. Uttarpara, Dist. Hooghly  nor executed and registered the deed of conveyance  in favour of complainant  in spite of  expiry  of the schedule  period  which has been described  in the  Clause No. 7 of the agreement for sale dt. 27.10.2014.  Thus, it is crystal clear  that the OPs  have committed  deficiency  of service  and also have committed unfair trade practice upon  the  complainant.  In this instant case the complainant  has also prayed alternative relief for getting refund of Rs. 16,21,000/- alongwith  statutory interest .  Now, the question is whether  complainant  is entitled  to get the said relief in this case or not ?  In this connection the decision  of Hon’ble Apex Court  which is  observed  in the case of

Experion Developers Pvt. Ltd.  Vs. Sushma Ashok Shiroor  which is reported in  AIR 2022 SC 1824 is very important where  Hon’ble Apex Court  has been pleased to observe  that  if the  promoter / developers  failed to deliver possession  of the apartment  within the stipulated  period of time and also failed to execute and register the deed of conveyance, the complainant is entitled to get refund of the  consideration money paid by him alongwith interest   @ 9 % per annum.

 A cumulative consideration of the above noted discussion goes to show  that the complainant has proved his case in respect of points of consideration Nos.  4 & 5 .  So,  these two points of consideration are also  decided  in favour of the complainant .

In the result, it is accordingly,

ORDERED

That this Complaint Case being No. 376/2017 be and the same  is allowed on contest  but in part.  It is held  that the complainant  is maintainable  to get a decree  directing the OPs  to execute and register the deed of conveyance  and to hand over possession  of Flat No. 301   of the residential unit situated at Premises No. 85, Kotrong Ghosh Para Lane, P.S. Uttarpara, Dist. Hooghly or  to refund the   amount  of Rs. 16,21,000/-  alongwith interest   @ 9 % per annum within 45 days from the date of passing of this judgment,  failing which the complainant is given liberty to execute  this award as per law.

The complainant  is also entitled to get  compensation of Rs. 45,000/- and litigation cost of Rs. 5,000/-  from the OPs  and OPs are directed to pay  the same equally to the complainant within 45 days from the date of this judgment otherwise the complainant  is given liberty to execute  this award as per law.

In the event of non-compliance and / or failure to carry out the above noted direction of this District Commission, the OPs shall deposit  a fine of Rs. 9,000/- in the Consumer Legal Aid Account of DCDRC, Howrah.

The parties   of this case are entitled to get a free copy of this judgment as early as possible.

Let this judgment and / or final order be uploaded in the official website of this District Commission immediately.

Dictated & corrected by me

President