This complaint is filed by the Complainant u/S 35 of the Consumer Protection Act, 2019 alleging deficiency in service as well as unfair trade practice against the OPs as the Ops did not bother to handover the physical possession in the suit flat along with execution and registration of the sale deed in respect of the said flat in his favour till filing of this complaint.

The brief fact of the case of the Complainant is that he and his mother, since deceased were lawful tenants at the questioned premises. In the year 2018 the OP-1, 2 and 4 and the landowners being the OP-5-7 have offered a proposal to them to the extent that they were intending to deliver the possession of their tenanted premises on condition that they will provide three flats and one garage as follows that one flat on the second floor (Western portion) measuring about 1000 square feet (carpet area,  one flat on the ground floor measuring about 350 square feet (carpet area), one two bed rooms flat on the first floor (North-West portion) measuring about 400 square feet (carpet area) and one garage on the ground floor (Western portion) measuring about 150 square feet (carpet area). On such understanding development agreement bearing no-3353 dated 16.04.2018 was executed and registered in the office of ADSR, Cossipore, Dum Dum, 24 Parganas (North), wherein the Complainant and his mother, since deceased have been shown as tenants. In the said development agreement it was mentioned that the developer shall arrange two numbers alternative accommodations for the said tenant-confirming parties for residential purpose from the date of vacating the said premises till handing over the possession and/registration of their allocation. The registration cost for execution of the deed of conveyance shall be borne by the developer after completion of the said proposed building. The tenants shall vacate the said premises after the sanctioned plan of the proposed building and execution of an agreement in favour of the tenants. It is also mentioned in the said development agreement that the developer shall be at liberty to sell out the balance portion of the building excluding the owner’s allocation and the tenant’s allocation and the construction of the said building will be completed within 24 months from the date of the sanctioned plan. On 01.05.2019 the developer took vacant possession of the premises from the Complainant and his mother and for giving alternative accommodation an agreement for leave and license was executed on 24.04.2019 in their favour. Since then the Complainant has been residing at the license premises. As it was stipulated that the developer shall asked the Complainant to vacate the premises after sanction plan for the proposed building, so it can safely be said that time for delivery of possession to the tenants ( 24 months) has been elapsed. After execution of the development agreement dated 16.04.2018 the Complainant asked the developer to give him the copy of the same, power of attorney and the sanctioned plan and subsequently the developer provided the same except the sanctioned plan and it was stated by the developer that he would provide the same later. But ultimately the developer did not provide the same till date. For this reason the Complainant does not know the description of flats under confirming party’s allocation. In the meantime the Complainant’s mother Smt. Krishna Mukherjee died on 13.08.2018 leaving behind his husband and only son as her legal heirs. Thereafter the Complainant’s father also died on 07.02.2019 leaving behind his only son as his legal heirs and successor. So the present Complainant is entitled to get the flats which was agreed to be registered in the name of his mother in terms of the development agreement. The Complainant on several occasions contacted with the developer for getting possession in the flat along with sale deed in his favour, but the developer did not bother to pay any heed to his request and ultimately disclosed that one of the partners of the firm has retired and the present OP-3 came as new partner in the said firm and accordingly handed over the copy of the deed of retirement. The OP-1-3 have avoided to give him any satisfactory reply in respect of giving possession in the flat. Under such circumstances the Complainant contacted with the landowners requesting them to take initiative from their part for giving delivery of possession in the confirming party’s allocation in his favour along with deed of conveyance, but in reply the landowners have refused to take any initiative on the ground the power of attorney was executed in favour of the developer. Thereafter the Complainant issued one legal notice through his Ld. Advocate to the OPs on 03.09.2021 requesting to provide him a photocopy of the sanctioned building plan along with intimate him the date of providing physical possession of the flats and the garage under the confirming party;s allocation along with execution and registration of the sale deed in his name. Upon receipt of the said notice the OP-2 and 3 have started to threat the Complainant over telephone for withdrawal of the said notice, otherwise they would not pay the charges of the alternative accommodation and also they will transfer the Complainant’s allocation to any third party to put him trouble. The said OPs have also refused to register the deed of conveyance in his favour. Subsequently the Complainant came to know that one Ashis Chandra is intending to purchase the first floor flat and Mampi Dutta nee Saha, W/o Abhishek Dutta is going to purchase one flat on the second floor (western portion) in the said multi-storied building, which fall within the allocation of the Complainant. Then the Complainant contacted with Abhishek Dutta to inform him that the flat falls under his allocation and the OPs have no right to transfer the same in favour of any third party. The Complainant also contacted with the OPs to verify the authenticity of such claim and in reply the OP-1-3 have stated clearly that they will not give him the flat on the second floor according to the development agreement. It is pertinent to mention that the Complainant is a Physiotherapist and previously he used a portion of the erstwhile tenanted premises as his office space, so an accommodation from the schedule property needs to be used by the Complainant for earning his livelihood. As the OPs have miserably failed to deliver the possession of his allocation along with deed of conveyance in respect of the flats and garage in favour of the Complainant, finding no other alternative the Complainant has approached before the Ld. Commission by filing this complaint praying for direction upon the OPs to handover the possession of the schedule property (confirming party’s allocation) in complete condition in his favour along with the possession letter, to execute and register the deed of conveyance of the schedule property in his favour at the cost of the developer in view of the terms and conditions of the development agreement, to provide completion certificate of the building, to pay compensation to the tune of Rs.4,00,000/- on account of mental agony and pain, to pay Rs.50,000/- towards litigation cost and to pay the charges of the alternative accommodation till possession to him.

After admission hearing notices were issued upon the OPs, but inspite of receipt of the notices, the OPs did not turn up to contest the complaint either orally or by filing written version, Hence this Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs. The Complainant has adduced evidence and also submitted the BNA. On 15.03.2022 when the complaint was fixed for hearing argument, on that day the proprietor of the OP-developer was present in person and on being asked he said that the sanctioned building plan is lying with him and he can produce the same before the Ld. Bench on the next date. It was also submitted on his behalf that if further six months be given to him from 15.03.2022, he can complete the construction of the questioned flat of the Complainant in all respect and deliver the same to him. Upon hearing the same the Ld. Commission was pleased to give him an opportunity for production of the sanctioned building plan before the Ld. Bench and accordingly date was fixed on 17.03.2022 for furnishing the same along with an affidavit stating that he will complete the construction of the flat in all respect within six months from 15.03.2022. But unfortunate on 17.03.20222 the proprietor of the OP-developer remained absent and accordingly the Ld. Commission was pleased to fix a date for delivery of the judgment.    

At the very outset we are to mention to the judgment passed by the Hon’ble NCDRC in the case of Singla Builders & Promoters Limited vs Aman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint inspite of receipt of the notices the OPs did not turn up to contest the complaint either orally or by filing written version within the statutory period. Therefore in view of the said judgment the allegations as made out by the Complainants in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

We have carefully perused the record, documents as available and heard argument at length advanced by the Ld. Counsel for the Complainant.  It is seen by us that the Complainant and his mother, since deceased were lawful tenants at the questioned premises. In the year 2018 the OP-1, 2 and 4 and the landowners being the OP-5-7 have offered a proposal to them to the extent that they were intending to deliver the possession of their tenanted premises on condition that they will provide three flats and one garage as follows:

 one flat on the second floor (Western portion) measuring about 1000 square feet (carpet area, one flat on the ground floor measuring about 350 square feet (carpet area), one two bed rooms flat on the first floor (North-West portion) measuring about 400 square feet (carpet area) and one garage on the ground floor (Western portion) measuring about 150 square feet (carpet area). On such understanding development agreement was executed on 16.04.2018 and registered in the office of ADSR, Cossipore, Dum Dum, 24 Parganas (North), wherein the Complainant and his mother, since deceased have been shown as tenants/confirming parties. In the said development agreement it was mentioned that the developer shall arrange two numbers alternative accommodations for the said tenant-confirming parties for residential purpose from the date of vacating the said premises till handing over the possession and/registration of their allocation. The registration cost for execution of the deed of conveyance shall be borne by the developer after completion of the said proposed building. The tenants shall vacate the said premises after the sanctioned plan of the proposed building and execution of an agreement in favour of the tenants. It is also mentioned in the said development agreement that the developer shall be at liberty to sell out the balance portion of the building excluding the owner’s allocation and the tenant’s allocation and the construction of the said building will be completed within 24 months from the date of the sanctioned plan. On 01.05.2019 the developer took vacant possession of the premises from the Complainant and his mother and for giving alternative accommodation an agreement for leave and license was executed on 24.04.2019 in their favour. Since then the Complainant has been residing at the license premises. As it was stipulated that the developer shall asked the Complainant to vacate the premises after sanction plan for the proposed building, so it can safely be said that time for delivery of possession to the tenants ( 24 months) has been elapsed. After execution of the development agreement dated 16.04.2018 the Complainant asked the developer to give him the copy of the same, power of attorney and the sanctioned plan and subsequently the developer provided the same except the sanctioned plan and it was stated by the developer that he would provide the same later. But ultimately the developer did not provide the same till date. For this reason the Complainant does not know the description of flats under confirming party’s allocation. In the meantime the Complainant’s mother Smt. Krishna Mukherjee died on 13.08.2018 leaving behind his husband and only son as her legal heirs. Thereafter the Complainant’s father also died on 07.02.2019 leaving behind his only son as his legal heirs and successor. So the present Complainant is entitled to get the flats which was agreed to be registered in the name of his mother in terms of the development agreement. The Complainant on several occasions contacted with the developer for getting possession in the flat along with sale deed in his favour, but the developer did not bother to pay any heed to his request and ultimately disclosed that one of the partners of the firm has retired and the present OP-3 came as new partner in the said firm and accordingly handed over the copy of the deed of retirement. The OP-1-3 have avoided to give him any satisfactory reply in respect of giving possession in the flat. Under such circumstances the Complainant contacted with the landowners requesting them to take initiative from their part for giving delivery of possession in the confirming party’s allocation in his favour along with deed of conveyance, but in reply the landowners have refused to take any initiative on the ground the power of attorney was executed in favour of the developer. Thereafter the Complainant issued one legal notice through his Ld. Advocate to the OPs on 03.09.2021 requesting to provide him a photocopy of the sanctioned building plan along with intimate him the date of providing physical possession of the flats and the garage under the confirming party;s allocation along with execution and registration of the sale deed in his name. Upon receipt of the said notice the OP-2 and 3 have started to threat the Complainant over telephone for withdrawal of the said notice, otherwise they would not pay the charges of the alternative accommodation and also they will transfer the Complainant’s allocation to any third party to put him trouble. The said OPs have also refused to register the deed of conveyance in his favour. Subsequently the Complainant came to know that one Ashis Chandra is intending to purchase the first floor flat and Mampi Dutta nee Saha, W/o Abhishek Dutta is going to purchase one flat on the second floor (western portion) in the said multi-storied building, which fall within the allocation of the Complainant. Then the Complainant contacted with Abhishek Dutta to inform him that the flat falls under his allocation and the OPs have no right to transfer the same in favour of any third party. The Complainant also contacted with the OPs to verify the authenticity of such claim and in reply the OP-1-3 have stated clearly that they will not give him the flat on the second floor according to the development agreement. It is pertinent to mention that the Complainant is a Physiotherapist and previously he used a portion of the erstwhile tenanted premises as his office space, so an accommodation from the schedule property needs to be used by the Complainant for earning his livelihood. As the OPs have  failed to deliver the possession of his allocation along with deed of conveyance in respect of the flats and garage in favour of the Complainant, hence this complaint is initiated by the Complainant praying for certain reliefs.

Therefore it is clear to us that the developers did not act as per their commitment as also according to the terms and conditions of the development agreement. Though initially the Complainant and his mother put their signature in the agreement, but subsequently his mother died leaving behind her husband and only son-Complainant. Thereafter the father of the Complainant also had expired and now the Complainant being the sole legal heir of the deceased got the entitlement to get the said flats and garage as per the development agreement. But inspite of several requests the developers did not bother to pay any heed to his request. We have noticed that on 01.05.2019 the developers got the vacant possession of the said premises and it was scheduled that only after obtaining the sanctioned building plan from the competent authority the developer can get the vacant possession. Surprisingly the developers did not provide any photocopy of the sanctioned building plan to the Complainant and after several request the copy of the development agreement was provided to the Complainant. At this juncture one question is cropped up in our mind that if the developer obtained the sanctioned building plan before getting the vacant possession of the questioned premises, then what prompted them not to disclose the same to the Complainant. Moreover till date the Complainant is not at all armed with the copy of the sanctioned building plan. It was also scheduled that within 24 months from the date of getting sanctioned building plan the possession shall be handed over to the Complainant and only after getting the said plan the developer will get the vacant possession of the said premises after arranging alternative accommodation to the Complainant. Therefore we can draw the conclusion that before 01.05.2019 the developer got the sanctioned plan. So since then 24 months have already been expired till the date of filing of this complaint. Though before the Ld. Commission the proprietor of the OP has stated that the sanctioned building plan is lying with him and he can submit the same, inspite of getting opportunity the sanctioned building plan is not forthcoming as on the date of filing the same along with affidavit the said proprietor remained absent. In our considered view the present Complainant is very much entitled to get the flats along with garage space in terms of the development agreement from the OPs. As the OPs did not deliver the same within the stipulated time frame and even after expiry the same, such action of the OPs can easily be termed as deficiency in service on their part. It is admitted fact that as the OPs-developers did not take any step to resolve the grievance of the Complainant before filing of this complaint and having no other alternative the Complainant has to approach before this Ld. Commission by filing this complaint for redressal of his grievance, for this proceedings the Complainant has to incur some expenses and for this reason in our view the Complainant is also entitled to get litigation cost from the OPs.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-CC/335/2021 is hereby allowed exparte against the OPs.

The OPs (Developers) shall handover the physical possession of the flats along with garage space to the Complainant in habitable condition in all respect i.e. after completion of the entire construction work within 60 days from the date of passing of this judgment in terms of the development agreement.

The OPs (Developers) shall also execute and register the flats and the garage space of the Complainant in his favour in terms of the development agreement, failing which the Complainant is at liberty to register the same through the machinery of this Ld. Commission in accordance with law.

The OPs (Developers) is further directed to hand over the possession letter and the copy of the completion certificate to the Complainant within the abovementioned period i.e. within 60 days from the date of passing this judgment.

The OPs (Developers) shall pay either jointly or severally compensation to the tune of Rs.10,000/- on account of deficiency in service and Rs.4,000/- as litigation cost to the Complainant within 60 days from the date of passing this judgment, in default the Complainant will be at liberty to put the entire decree in execution as per provision of law.

Let plain copy of this judgment be given to the parties free of cost as per the CPR.

Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER