The case of the complainants in a nutshell is that they have entered into an agreement for sale on 14.04.2016 to purchase a self contained flat on the ground floor measuring about 220 sq. ft. with undivided proportionate share of land and common facilities at premises no. 15, Motilal Basak Garden Lane, P.S. Phooolbagan, Kolkata-700 054 at a total consideration of Rs.7,50,000/- (Rupees seven lakh fifty thousand) only with land owner Sanjit Chatterjee and M/s Darshana Construction, the developer, represented by its sole proprietor Sri Dipankar Bakuly. The said original agreement for sale dt.14.04.2016 is marked Ext-1. The complainants at the time of execution of agreement for sale dt. 14.04.2016, paid Rs.2,00,000/- (Rupees two lakh) only through Bank’s cheque and thereafter on different dates paid a sum of Rs.4,00,000/- (Rupees four lakh) only to the opposite party no.1. The money receipts are marked Ext-2 series and some money receipts are written in Ext-1 showing total payment of Rs.6,00,000/- (Rupees six lakh) only to opposite party no.1. According to complainants the said land owner died on 16.09.2018 leaving behind the pro-forma opposite parties as his legal heirs. The opposite parties till date has not completed the said flat neither handed over the possession of the same to the complainants. The complainants have already paid major part of the consideration amount to the opposite party no.1 and the rest amount is supposed to be paid at the time of registration of Deed of Conveyance coupled with delivery of possession of the complete flat. Though the complainants are ready to perform their part of contract but the opposite parties have failed and neglected to fulfill their obligation in terms of the agreement for sale dt.14.04.2016 which tantamounts great deficiency in service and unfair trade practice on the part of opposite parties.
It transpires from the record that notices were served upon all opposite parties. Opposite party no.1 appeared and filed written version on 15.01.2020. Thereafter opposite party no.1 did not deliberately appeared in the case to contest the same. So, the case was fixed ex-parte against opposite party no.1. Opposite party nos.2 and 3 did not appear or contest the case inspite of service of notices upon them. Therefore, the case is heard ex-parte against opposite party nos. 2 and 3 also.
The complainants submitted evidence on affidavit in chief and the Agreement for Sale dt.14.04.2016 is marked Ext-1 and money receipts are marked Ext-2 to 2/4.
Ext-1 reveals that the opposite parties are under obligation to deliver possession and registration of Deed of Conveyance with eighteen months from the date of execution of Agreement for Sale which they have failed to comply with. Ext-2 to 2/4 reveals the payment made in favour of opposite party no.1.
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.
The complainants have proved their case by their un-rebutted and unchallenged testimony and exhibited documents submitted under provision of order XVIII Rule-4 CPC in terms of section 38(9) of Consumer Protection Act, 2019.
Therefore the case succeeds.
So, the complainants are entitled to relief as claim for.
Fees paid is correct.
Hence, it is
O R D E R E D
That the instant complaint case be and the same is allowed ex-parte against the opposite parties.
- That the opposite parties are directed either jointly or severally to hand over complete flat along with completion certificate mentioned in schedule ‘B’ of the Agreement for Sale dt.14.04.2016 and to execute and register Deed of Conveyance of the same in favour of the complainants within one month from the date hereof on payment of rest consideration amount of Rs.1,50,000/- (Rupees one lakh fifty thousand) only by the complainants to the opposite parties. In default the opposite parties jointly or severally shall pay a sum of Rs.6,00,000/- (Rupees six lakh) only along with simple interest at the rate of 7 % per annum from the date of filing of the case to the date of actual payment within two months from the date hereof. In case of failure to pay the amount within two months as mentioned, shall pay simple interest at the rate of 9 % per annum till the date of actual payment.
- The opposite parties either jointly or severally shall pay a sum of Rs.1,00,000/- (Rupees one lakh) only as compensation and litigation cost.
