This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OP as the OP did not take any step to execute the sale deed in respect of the questioned flat in favour of the Complainants and give the khas possession in the suit flat till filing of this complaint.

The brief fact of the case of the Complainants is that in the year 2000 the Complainants along with their minor child came to Dumdum and started to reside there. Subsequently the Complainant-2 joined in the Debalaya Apartment as a gate keeper with a meager salary of Rs.100/- per month and at that time they used to stay in the said apartment on temporary basis. The Complainants are passing their daily life in a very simple manner. The source of income is the salary of the Complainant-2 and presently the son of the Complainants used to supply water to the adjacent locality. In the year 2016 the Complainants decided to purchase a small two rooms flat for their permanent resident by their savings and naturally the Complainants started to search for the said flat and contacted with some brokers. Suddenly the Complainant-1 got an information that a person having two storied house, who was inclined to sell out the ground portion of his house as like a flat and the said person disclosed his identity that his name isBiju. Being informed from the Complainant-1 the Complainant-2 along with their son visited the said house, but at that point of time the said house was incomplete. The said Biju disclosed his identity to the Complainants that he is the owner of this house, but due to some financial problem he could not complete the construction work of the house and then offer the Complainants that he would sale the ground floor of his house measuring about 400 sq.ft and also stated to the Complainants that if the Complainants would purchase the said flat from the OP then the OP would start the construction work with that money. The Complainants agreed with his proposal on mutual understanding that the price of the said flat will be at Rs.11,37,500/- for 400 sq.ftflat at the ground floor. On the basis of this discussion agreement for sale was executed by and between the parties on 03.07.2016. But actually HaripadaBudhak was the sole proprietor of the property at the time of executing the agreement. Initially one Jugal Kishore Budhak was the sole and absolute owner of the property. In the agreement for sale it was stated by the HaripadaBudhak that he has already obtained the sanctioned plan of the said house/flat with G+2 storied building and the OP has agreed to provide a 400 sq. ft flat at the ground floor with the consideration of money of Rs.11,37,500/-. On the date of agreement for sale the Complainants paid Rs.3,00,000/- to the OP and it was settled that the balance amount of Rs.8,37,500/- will be paid within 2 years from the date of execution of this agreement. Accordingly the Complainants have paid the entire balance amount to the OP on several dates.

After 11.12.2017 the Complainants visited the OP and requested him to hand over the possession of the flat, the OP did not pay any heed to them and asked the Complainants that he would not give possession of the flat to them, but the Complainants did not raise their voice. On several occasions the Complainants went to the house of the OP for making payment of balance consideration amount, but the OP refused. Lastly on 19.06.2018 the Complainants send Rs.1,37,500/- to the OP through NEFT, but surprisingly the OP returned the said amount to the Complainants through NEFT. It is clear from his conduct that the OP had informed not to comply with the condition of the agreement for sale. Thereafter the Complainants send a letter through post wherein t was clearly stated to deliver the khas possession of the flat after receiving the balance amount, but upon receipt of the said letter the OP refused to reply the same or to deliver the khas possession to the Complainants. Through his man power the OP threatened the Complainants. Accordingly the Complainants informed this matter to the local police station lodging a GD but the police did not take any action to that effect. As the grievance of the Complainants had not been redressed by the OP, being compelled the Complainants have approached before the Ld. DCDRC, Barasat for their redressal by filing this complaint praying for direction upon the OP to give khas possession of the suit flat, to register the said flat in their favour, to register the sale deed in respect of the said flat in their favour through the machinery of this Ld. Commission, to paycompensation to the tune of Rs.5,00,000/- and also litigation cost to them.

Initially this complaint was filed before the Ld. District Forum, Barasat (Commission as amended). After establishment of this Ld. Commission this complaint has transferred to this Ld. Commission in view of the order passed by the Hon’ble SCDRC as the address of the OP falls within the territorial jurisdiction of this Ld. Commission.

After admission hearing before the Ld. Commission, Barasat notice was sent to the OP. The order dated 25.03.2019 (Barasat Commission) speaks that the OP received the notice on 23.02.2019. The Ld. Commission was pleased to fix this complaint on 08.04.2019 for filing written version by the OP. On 08.04.2019 as the OP did not turn up by filingwritten version within the statutory period, due to non-taking of any step on behalf of the OP, the Ld. Commission was pleased to pass an order that the complaint will runexparte against the OP. Date was fixed on 16.08.2019 for adducing evidence by the Complainant. The Complainant had adduced evidence before the Ld. Commission, Barasat. Upon receipt of this record this complaint was fixed on 17.06.2021 for exparte argument and BNA. Due to lockdown declared by the Govt. of West Bengal on account of Covid-19 (second wave) the record could not be placed on that date, accordingly it is placed before the Ld. Bench on 30.07.2021 for passing necessary order.

On 30.07.2021 the Ld. Counsel for the Complainants was present who had advanced argument. None was present on behalf of the OP.

WE have carefully gone through the entire record and heard argument at length advanced by the Ld. Counsel for the Complainants. It is seen from the documents as annexed by the Complainants that for purchasing a flat measuring 400 sq. ft. the Complainants have entered into an agreement for sale with the OP. It was settled that the entire payment should be paid within two years from the date of execution of the agreement for sale. At the time of agreement the Complainants paid a sum of Rs.3,00,000/- to the OP. The consideration of the said flat was settled at Rs.11,37,500/-. From the date of agreement for sale till filing of this complaint the Complainants paid almost the entire amount. But the OP inspite of receipt of the said consideration amount did not provide them the khas possession in the said flat nor execute the sale deed in respect of the flat in their favour. The Complainants have requested the OP in this regard on several time, but to no effect. The Complainants issued written correspondences to the OP, but the OP did not bother to reply the same. Having no other alternative the Complainants have approached before the Ld. Commission praying for redressal of their grievance.

From the documents it is clear to us that as the Complainants paid almost the entire consideration amount for the said flat to the OP as per the agreement for sale, the Complainants are very much entitled to get it without any further delay. Non-providing the khas possession of the flat to the Complainants by the OP for a prolonged period inspite of receipt of the consideration amount for the said flat, in our view it is deficiency in service on the part of the OP, for which the Complainants are very much entitled to get compensation. Admittedly due to such deficiency in service on the part of the OP the Complainants have approached before this Ld. Commission by filing this complaint for redressal of their grievance and for this proceeding they have to incur some expenses, for which in our considered view the Complainants are also entitled to get litigation cost from the OP.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/133/2020 is thus allowed exparte against the OP with cost. The OP is directed to provide the Complainants khas possession in the said flat in habitable condition. The OP shall execute the deed of conveyance in respect of the said flat in favour of the Complainants within a period of 60 days from the date of passing this judgment, in default the Complainants will be at liberty to execute the sale deed of the flat through the machinery of this Ld. Commission.  The Complainants shall pay the due consideration amount, if any, before taking possession in the said flat. In case of any due amount if the OP will refuse to take the same, the Complainants are at liberty to submit the said due amount by way of demand draft in the name of the OP before this Ld. Commission. The OP will be at liberty to withdraw the said demand draft from the office of this Ld. Commission within its validity period. The OP shall pay compensation to the Complainants to the tune of Rs.50,000/- due to unnecessary harassment, mental agony and pain and litigation cost of Rs.10,000/- to the Complainants within 60 days from the date of passing this judgment, in default the Complainants will be at liberty to put the entire decree in execution as per provision of law.

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

Dicatated and corrected by

[HON'BLE MRS. Silpi Majumder]
MEMBER