FINAL ORDER/JUDGEMENT           

SHRI SWAPAN KUMAR MAHANTY,   PRESIDENT

Brief facts of the case are that one Sk. Fakhruddin, Since deceased was the absolute owner of a plot of  land measuring about 10 kottahs 03 chittaks 20 sq. ft. more or less known as KMC Premises No. 27, Ahiripukur 1^st Lane, PS- Karaya, Kolkata-700017. He died intestate living behind his two sons namely Ammuddin, Sk. Meharullah and widow Sultani Begum as his legal heirs and sucessors. The OPs 1 to  3 being the legal heirs of Sk. Fakhruddin mutated their names in the Assesement Register of KMC. They entered into a Development Agreement dated 07.06.2007 with OP-4 M/s Eastern Construction Comany, a Propritorship Firm represented by its Proprietor Irfan Ahmed for construction of a multi storied building in the said plot of land. Complainants were in search of a suitable accomodation for their resdential purpose  and they had entered into an Agreement for Sale  dated 15.01.2011 with the OP-4.  The OP-4 agreed to sell two flats measuring about 1910 sq. ft. being flat Nos. 2B and 2C  with a covered car parking space measuring about 120 sq. ft. at KMC Premises No. 27, Ahiripukur 1^st Lane, PS- Karaya, Kolkata-700017. Total sale price of the flats is Rs. 55,40,720/-. Complainants have already paid Rs. 10,00,000/- to the OP-4 on different dates against money reciepts. Despite several request and reminders, the OPs did not handover physical possesion, execute and register sale deed in favour of the complainants  after receving balance sale price. Finding no other alteranaitve, complainants issued legal notices dated 22.12.2021 and 10.01.2022 to the OP-4. Such notices were unattended. Complainant are the consumers as per provisions of the CP Act,  2019. Alleging deficiency in service and unfair trade practice, the complainants have filed the instant case against the OPs.

            Despite service of notices of the complaint, the OPs did not turn  up to contest the case by filing WV within the statutory period as provided under the CP Act,  2019. Thus the case runs ex parte against the OPs.

            Complainants filed evidence wherein  they have  reirritated all the averments taken in the complaint and relied the documents annexed with the complaint petition. We have heard the Ld. Advocate appearing for the complainants and also perused the material available on record.  

In course of hearing the Ld. Advocate for the complainants  submitted that  there is a gross deficiency in service and unfair trade practice on the part of the OPs.  Despite receiving Rs. 10,00,000/- out of total sale price, they  did not execute and register Deed of Conveyance as well as deliver peaceful possession of the subject flat of the complainants. It is prayed that the consumer complaint should be allowed in terms of the prayer.

We have given our thoughtful consideration to the various pleas raised by the Ld. Advocate of the complainants and find that Irfan Alam, sole proprietor of OP-4  executed an Agreement for Sale dated 15.01.2021  with the complainants and by virtue of the said Agreement for Sale  the OP-4 agreed to sell two flats being flat Nos. 2B and 2C measuring an area of  1910 sq. ft. with a covered car parking space measuring about  120 sq. ft. fully mentioned in the 3^rd schedule of the Agreement for Sale. Photocopies of money receipts go to show that the complainants have already paid Rs. 10,00,000/- to the OP-4 as part of sale price of the subject flats. Complainants allge that despite sevral request and legal notices dated 22.12.2021 and 10.01.2022, the OP-4 did not handover physical possession of the subject flats and execute and register Deed of Conveyance in their favour. Such legal notices were unattended. The complainants are ready and willing to pay the balance sale price of the subejct flats and covered car parking space  to the OP-4 on the date of delivery of possesison as well as execution and registeration of the deed of conveyance in terms of the agreement for sale .

It is the duty of the OPs to execute and register Deed of Conveyance  and delivery of possession of the subject flats and coverd car parking space in favour of the complainants  after receiving balance sale price of Rs. 45,40,720/-. The OPs did not file WV denying the allegations of the complainants as made out in the complaint petition. Thus, the allegations of the complainant cannot be thrown out. Complainants cannot be made to wait indefinitely for execution and registration of the Deed of Conveyance and receiving possession of the subject flats and covered car parking space. Thus, the Commission has authority to pass appropriate order in this complaint case.

It is settle law that the complainants being the purchasers of the subject flats for residential purpose are  ”Consumers” under the provision of Consumer Protection Act,  2019. We also find both deficiency in service within the meaning of section 2 (11) and unfair trade practice within the meaning of section 2 (47) of the Consumer Protection Act, 2019 to be well and truly evident on the part of the OPs.

In view of the above discussion, the present consumer complaint is allowed in part ex parte against the OPs with cost of Rs. 5,000/- with the following directions:-

1. OPs are directed to execute and register Deed of Conveyance as well as delivery of physical possession of the subject flats and covered car parking space fully mentioned in  3^rd schedule of the agreememt for sale measuring about 1910 sq. ft. and 120 sq. ft. respectiely of the building situated at 27,Ahiripukur 1^st Lane, PS- Karaya, Kolkata-7000019 in habitable condition on receiving balance sale price of Rs. 45,40,720/- (Rupees fourty five lacs fourty thousand seven hundred twenty) only.
2. OPs are  also directed to issue possession letter and completion certificate of the subject flats and the building to the complainants.
3. Alternatively, the OPs are jointly and serveraly directed to refund Rs. 10,00,000/- (Rupees ten lacs) only to the complainants along with interest @ 7 % p.a. from the date of payments till realization.

The OPs are directed to comply the above order within a period of 90 days from today and the complainants shall pay the balance sale price of Rs.  45,40,720/- (Rupees fourty five lacs fourty thousand seven hundred twenty) only to the OP-4  on the date of delivery of possesion, execution and registeration of the subject flats and covered car parking space within date fixed from today. Complainants will bear cost of stamp duty and registration charges for execution and registration of Deed of Conveyance .

Copy of the judgment be supplied to the parties as per CP Act. Judgment be uploaded on the website of this Commission forthwith for perusal of the parties.