SHRI SHYAMAL KUMAR GHOSH, MEMBER

1. The instant consumer case has been filed by the complainants against the opposite parties praying for certain reliefs clearly enumerated in the prayer portion of the instant CC case.
2. The brief fact of the case is that the complainant alongwith her husband have booked a residential flat of the 1^st floor ( East-North facing) measuring area 860 sq.ft. more or less super built up including one car parking space as mentioned in the Schedule B of the petition of complaint.
3. Be it mentioned here that Shri Indrajit Shown , another complainant  has entrusted a power upon his wife namely Smt. Mahua Shown by way of registered General  Power of Attorney  with regard to act all  legal activities.
4. The fact remains that  the complainants have entered into an agreement for sale on 15^th April, 2018 in respect of self-contained ownership flat situated at the first floor measuring 860 sq.ft. more or less super built up area consisting of  two bedrooms, one bathroom and toilet, one kitchen and dining room including one car parking space measuring area 110 sq.ft. together with undivided impartible proportionate share on interest in the land of Schedule A property alongwith common right, common utilities, amenities, etc. at a  total consideration amount of Rs. 38,00,000/- only.  Rs. 34,00,000/- has been fixed for residential flat and Rs. 4,00,000/- has been fixed for car parking space. The complainants have paid part consideration amount of Rs. 8,00,000/- on 01.03.2018 to the OP No. 2/developer company. Rs. 20,00,000/- has been paid to the OP No. 2/developer after taking  a loan from the Bank in two receipts.  It is fact that as per agreement for sale  the OP/developer has promised to handover the physical possession of the flat  to the complainants within September, 2018.
5. As per terms of the agreement for sale, the OP No. 2/developer has failed to complete the construction work and also failed to handover the physical possession of flat in question in spite of receiving the amount of Rs. 28,00,000/- .
6. Be it mentioned here that the complainants have taken a Bank loan of Rs. 20,00,000/- which has already been disbursed in favour of the OP No. 2/developer for consideration on behalf of the complainants.
7. On several occasions, the complainants have requested   the OP No. 2/developer to complete the flat and to handover the physical possession of the flat in question to the complainants but to no effect. The matter has already been informed before the Regional Office of the Consumer Affairs Department for mediation but the matter in dispute has not been solved. Hence, the complainants have knocked at the door of this Commission for getting proper relief against the OPs.
8. OP No. 2/developer has contested this case by filing written version stating inter alia that for completion of the flat the sufficient time would be required and to that effect the matter has already been intimated orally to the complainants.  The complainants were  aware  about the actual work in progress and OP No. 2/developer has tried to complete the flat at their  level best.   It is fact that by letter dated 24.12.2018 the complainants have requested to handover the possession of flat and  car parking space  and in this matter the OP No. 2/developer met with the complainants and requested for few months time to handover the same to the complainants. The information relating to installation of lift has already been informed to the complainants. OP NO. 2 has further intimated orally to the complainants that  the lift company  has delayed  to deliver instrument and as such the OP No. 2/developer was not able to install the same as well as to obtain completion certificate from the competent authority of Kolkata Municipal Corporation. OP No. 2, vide letter dated 30.09.2019, 23.10.2019 and 04.12.2019, has intimated the complainants regarding readiness of the flat and also requested to take the possession of the flat alongwith car parking space.  OP No. 2 has also requested to  execute and register the deed of conveyance in favour of them without any further delay upon payment of balance consideration amount of Rs. 10,00,000/-  but the complainants did not pay any heed in this matter.  There is no negligence and deficiency in service on the part of the OP No. 2/developer. Only to create harassment upon the OP No. 2 the instant Consumer Case has been filed against the OP No. 2/developer. Accordingly, the OP No. 2/developer has prayed for dismissal of the  aforesaid consumer case with exemplary cost.
9. Order NO. 5 dated 07.02.2020 clearly reveals that none appeared for the OP No. 1/landlady.  No written version has been filed by her despite allowing more than one opportunity. Accordingly, the mater has been fixed for exparte hearing against the OP No. 1/landlady.
10. Ld. Advocate appearing for the Complainants has argued that in pursuant to the terms and conditions of the agreement for sale dated 05.04.2018, the OP No. 2/developer has failed to handover the vacant and peaceful possession of the flat to the complainants within the stipulated period of time, though the lion share of consideration amount has already been given to the OP No. 2/developer. The agreement for sale has been executed in the year 2018. Now,  we are at the end of the  year 2023. Till date  the complainants are homeless.   It is admitted fact that out of total consideration amount of Rs. 38,00,000/-  the complainants have already paid Rs. 28,00,000/- to the OP No. 2/developer. The complainants are ready to pay the balance consideration amount of Rs. 10,00,000/- to the OP No. 2/developer.  The OP No. 2 clearly violates the terms and conditions  of the aforesaid agreement for sale causing clear gross of negligence  and deficiency in service  on the part of  the OP No. 2.
11. Having heard Ld. Advocate appearing for the Complainants  and upon careful perusal of the interlocutory application  being No. IA/144/2020,  it appears to us that the prayer of interlocutory application  is very same in nature with the prayer portion of the original Consumer Case and as such we take up the  instant  interlocutory application  in order to dispose of  the same with the original CC case.
12. Ld. Advocate appearing for the OPs has submitted that they are ready to handover the peaceful vacant possession of the aforesaid flat to the complainants on payment of balance consideration amount of Rs. 10,00,000/-. They are also ready to execute and register the deed of conveyance in favour of the complainants as the construction work is now completed.  On previous occasion, the OPs have requested on several occasions to take the possession of the flat in question but to no effect. Accordingly, the Ld. Advocate  has submitted that there is no such fault orgross negligence on the part of the OPs  and  hence,  the Ld. Advocate has prayed for dismissal of the  petition of complainant with exemplary cost.
13. We have heard  the Ld. Advocates for both sides at length and in full.
14. We have considered their submissions.
15. We have meticulously perused all relevant documents and papers available on the record.
16. The final hearing of the cc case alongwith hearing of aforesaid interlocutory application being No. IA/144/2020 is concluded.
17. It is admitted that one agreement for sale dated 5^th April, 2018 has been executed by and between  the land lady /OP No. 1,  developer /OP No. 2 and  the complainants herein in respect of  the self-contained ownership flat on the first floor (East North facing) measuring 860 sq.ft. more or less super built up area consisting of two bedrooms, one bathroom and toilet, one kitchen  and dining room, one balcony  alongwith car parking space measuring area 110 sq.ft. alongwith undivided impartible proportionate share on interest in the A Schedule property alongwith common facilities, utilities and amenities at a total consideration of Rs. 38,00,000/-.(Rs. 34,00,000/- for flat and Rs. 4,00,000/- for car parking space).
18. In pursuant to the  page no. 19  of the agreement for sale dated  05.04.2018(memo of advance)it appears to us that  the complainants have already paid Rs. 8,00,000/- to the OP No. 2/developer at the time of execution of the aforesaid agreement for sale  and upon receiving the same  the OP No. 2 has acknowledged to that effect. Thereafter, the complainants have paid Rs. 10,00,000/-  as per receipt  being no. 347 and further paid Rs. 10,00,000/-  as per   receipt  being no, 348 dated  04.07.2018 issued by OPs/Lokenath Builder and contractor. Upon careful perusal of the aforesaid document and money receipts, there is no hesitation to hold that the complainants have made total payment of Rs. 8,00,000/- + Rs.10,00,000/- + Rs. 10,00,000/- = Rs. 28,00,000/- to the OP/ proprietor  of Lokenath Builder and Contractor.  
19. In pursuant to the agreement for sale dated 05.04.2018 at the  page no. 18  it appears to us that   Smt. Shanti Das, OP No. 1 herein  has already entrusted all rights upon the OP No.2/developer to do all legal works on behalf of the OP No. 1 /landlady  and accordingly the OP No. 2/developer has endorsed his signature at the page no. 18 of the aforesaid agreement for sale for and on behalf of the Smt. Shanti Das/landlady.
20. It is fact that the purchasers/complainants and the developer /OP both are agreed to complete the transaction of selling of said flat in question alongwith car parking space within September, 2018 on payment of balance consideration amount. But from the four corners of the record it appears to us that both the complainants and the OPs are defaulter as the complainants have not paid the balance consideration of Rs. 10,00,000/- to the OP No. 2/developer till date as well as the OP /developer has also failed to deliver the vacant peaceful possession  to the Complainants within September, 2018.
21. Though,  there is a fault on the part of the complainants yet we cannot forget  the main features and preamble of the Consumer Protection Act.  The Consumer Protection Act has been exclusively enacted for the benefit of the consumers and as such  the consumer case cannot be defeated on any technical grounds and in their connection we can safely rely upon  a remarkable case law viz. Sanjoy Kr. Gupta   vs   Kebal Kishahan Baran and Ors. Reported  in 2014(3) CPR 286 (NC) wherein  Hon’ble National Commission has been pleased to hold that  Consumer Forum is primarily meant to provide  protection to consumers  and their claims  cannot be defeated on technical grounds.
22. Regarding non-filing of written version by the OP No. 1, it is firmly decided that when the petition of complaint has remained unchallenged and un-rebutted, there is no reason to disbelieve the testimonies of the petition of complaint.  In this regard we can safely rely upon the decision reported in 2017(4)CPR 590 NC, wherein  the Hon’ble NCDRC has been pleased to hold that when the OPs did not file their written version, this conduct on their part amounts to admission of allegations levelled in the complaint against them.
23. Considering  all aspects from all angles  and keeping in view  the present position of law  and regard being had to the citation of the Hon’ble NCDRC,  we are constrained to hold that there is a negligence or fault on the part of the  OP No. 2/developer   and accordingly  we allow the aforesaid consumer case on contest against the OP  No. 2/developer with cost  and dismiss the same exparte against the OP No. 1/landlady as she has already entrusted all legal rights upon the OP No. 2/developer by way of execution of General Power of Attorney. 

  Hence,  

 It is

                                                     ORDERED

That the OP No. 2/developer is directed to handover the peaceful vacant possession of the flat clearly mentioned in the agreement for sale dated 05.04.2018 to the complainants within 45 days from the date of passing of this order.

That the OP No. 2/developer is directed to execute and register the deed of conveyance in favour of the complainants within the aforesaid stipulated period of time on payment of balance consideration amount of Rs. 10,00,000/-(Rupees ten lakhs) only from the end of the complainants at the time of registration of deed of conveyance.

That the OP No. 2/ developer is further directed to pay litigation cost of Rs. 15,000/- ( Rupees fifteen thousands) only to the complainants within the aforesaid stipulated period of time, in default,the awarded amount of cost shall carry interest@ 9% p.a. from the date of default till full realisation.

No order is passed against the OP No. 1/landlady as she has already entrusted all legal rights upon the OP No. 2/developer by way of execution of General Power of Attorney.

In case of non-compliance of the order by the OP No.2/developer, the complainants are at liberty to put the final order in execution.

The CC case stands disposed of as per above observations.

Resultantly, the IA being No. IA/144/2020 stands also disposed of .

Note accordingly.