The case of the complainant in short is that the complainant had booked an apartment being flat no.IC on the 1st floor of building no.2B8 having super buildup area of 734 square feet along with one four wheeler parking space measuring about 134.5 square feet in Sanhita Housing Project under Bhagabanpur Gram Panchayat, District 24 Parganas (South) P.S. Satuli on payment of Rs.2,68,378/- (Rupees two lakh sixty eight thousand three hundred seventy eight) only. The said project is being undertaken by the opposite parties. The opposite parties issued allotment and confirmation letter dt. 06.12.2014 and money receipt in favour of the complainant. On 16.09.2015, the complainant entered into an Agreement for Sale with the opposite parties to purchase the aforementioned flat at a consideration of Rs.16,36,890/-(Rupees sixteen lakh thirty six thousand eight hundred ninety) only.
In order to purchase the flat, the complainant applied for loan from Bank and the concerned Bank issued a letter dt. 09.11.2015 on sanctioning the loan.
Therefore, a tripartite agreement dt. 24.11.2015 was executed between the complainant, United Bank of India and opposite party no.1. The complainant as per payment schedule mentioned in the Agreement for sale dt. 16.09.2015 paid total a sum of Rs.14,54,796/- (Rupees fourteen lakh fifty four thousand seven hundred ninety six) only to the opposite parties. The next installment is due and payable at the time of delivery of possession and registration of the deed of conveyance of the flat.
According to the terms and conditions of the Agreement for Sale, the opposite party no.1 was liable to deliver possession of the flat within 36 months from the date of allotment i.e. 06.12.2014 subject to payment of total consideration amount. However as per agreement the opposite party no.1 is entitled to a grace period of further six months and also a period of six months in case of any unforeseen delays. Inspite of lapse of the aforementioned grace period, the opposite party no.1 has failed to deliver possession of the flat to the complainant. The complainant had enquired from opposite party no.1 on several occasions to ascertain the date of delivery of possession of the said flat, but the opposite party no.1 could not give any assurance to deliver the possession of the flat. The complainant is saddled with burden of paying rental charges for his present rental accommodation coupled with the installments being paid for the loan availed by him for the flat. The complainant served a legal notice dt. 15.11.2021 upon opposite party no.1 but to no effect. The complainant has suffered immensely due to deficiency of service and unfair trade practice of the opposite parties. Hence, this case.
Opposite party no.1 appeared and filed vakalatnama but did not submit written version and deliberately not contested the case. Notices upon other opposite parties served but they not appeared neither filed written version in the case. So, the case was fixed ex-parte as against all opposite parties.
However the commission tried to resolve the dispute between the parties through pre-counseling. The representative of opposite parties Mr. Joydip Dey, Legal Executive (Jr.) was present and after a long deliberation it was settled that the complainant will submit the statement of loan and the opposite parties will settle the claim of the complainant. In view of the above, 25.11.2022 was fixed for submission of compromise petition by the opposite parties but the opposite parties have not turned up before the commission deliberately. Such deliberate act on the part of opposite parties clearly indicates their intension of causing harassment to the complainant financially as well as mentally.
However, complainant filed affidavit in chief through his constituted attorney Amalelndu Nandi. The documents submitted in evidence are marked as Ext-1 – allotment letter dated 06.12.2014; Ext-2 – money receipt dated 16.08.2014 for sum of Rs.2,68,378/- (Rupees two lakh sixty eight thousand three hundred seventy eight) only; Ext-3 – copy of agreement dated 16.09.2015; Ext-4 – loan sanction letter dated 09.11.2015 by United Bank of India; Ext-5 – a tripartite agreement between the complainant, opposite parties and United Bank of India; Ext-6 to Ext-6/5 – money receipts dated 21.12.2015, 04.02.2016, 24.01.2017, 15.02.2017, 30.03.2017 & 19.04.2017; Ext-7 – legal notice dated 15.11.2021; Ext-7(1) collectively – 5 postal receipts; Ext-7(2) collectively – 5 postal track reports.
It has been proved by the complainant that the opposite parties are liable for deficiency in service resulting financial loss and mental agony of the complainant. The document Ext-2 reveals that on 16.08.2014 the complainant paid Rs.2,68,378/- (Rupees two lakh sixty eight thousand three hundred seventy eight) only to opposite party no.1 and allotment letter with regard to the flat mentioned in schedule ‘A’ of the complaint has been issued on 16.12.2014 in favour of the complainant. Thereafter, agreement for sale was executed between the parties on 16.09.2015. Complainant applied for loan and the United Bank of India sanctioned such loan vide letter dt. 09.11.2015 (Ext-4) and a tripartite agreement was executed between the complainant, opposite party no.1 and United Bank of India (Ext-5).
The complainant in terms of agreement for sale paid six installments including service tax totaling a sum of Rs.15,02,659/- (Rupees fifteen lakh two thousand six hundred fifty nine) only to the opposite party no.1 (Ext-2, 2/1 & Ext-6 to Ext-6/5).
The complainant has been able to prove his case by his unchanged and un-rebutted testimony.
The Hon’ble Apex Court in Lucknow Development Authority Vs. M K Gupta observed that when a person hires the service of a builder or a contractor, for the construction of a house or a flat, and the same is for a consideration, it is a ‘service’ as defined in the Consumer Protection Act.
We also find the Hon’ble Apex Court in Fortune Infrastructure and Anr. Vs. Trevor D’Lima & Ors. held that a person cannot be made to wait for indefinite period for possession of a flat allotted to him and in such situation the person is entitled to seek refund of the amount paid by him, along with compensation.
In the instant case the complainant by his unchallenged and un-rebutted testimony has been compelled to prove the inordinate delay of completion of construction work of the project and handing over the possession of the flat to him.
Therefore, it clearly tantamount to deficiency of service on the part of the opposite parties. Resulting in harassment, mental agony and financial loss. It is needless to reiterate during pendency of the case, the act of the opposite parties suggest the malafide intension on their part.
It is apparent on the face of the record of the evidence of the complainant that the opposite parties caused harassment, mental agony and financial loss to the complainant.
We do not find any clause in the agreement that the opposite party no.1 would pay rental charges to the complainant. So, such prayer of the complainant cannot be accepted.
Having considered the discussion above, we are of the opinion that the complainant is entitled to get relief as prayed for.
Fees paid correct.
Hence, it is
O R D E R E D
That the complaint case be and the same is allowed ex-parte against the opposite parties.
That the opposite parties either jointly or severally shall pay a sum of Rs.15,02,659/- (Rupees fifteen lakh two thousand six hundred fifty nine) only to the complainant along with 7% simple interest from the date of filing of the case within two months from the date hereof failing which shall be liable to pay the principal amount along with 9 % simple interest till the date of actual payment.
That opposite parties either jointly or severally shall pay a sum of Rs.6,00,000/- (Rupees six lakh) only as compensation to the complainant within two months from the date hereof failing which shall be liable to pay 9 % simple interest on the compensation amount till the date of actual payment.
That the opposite parties either jointly or severally shall pay a sum of Rs.50,000/- (Rupees fifty thousand) only as litigation cost within two months from the date hereof.
