Date of filing: 30/08/2019

Judgment date: 10/05/2023

Mrs. Sashi Kala Basu, Hon’ble President

This complaint is filed by the complainant Sri Hrishikesh Naskar under section 12 of the Consumer Protection Act, 1986, against the opposite parties (referred as OPs hereinafter) namely (1) Sri Kamal Sarkar (2) South Bengal Construction (3) Goutam Dhar Chowdhury and (4) Sri Ratan Das alleging deficiency in rendering of service on the part of the OPs.

The case of the complainant in short is that by an agreement for sale dated 26/11/2012 OPs 2 to 4 being the developer agreed to sale one shop room at the premises no. 417/1, Baghajatin Place, under Police Station Patuli at a total consideration price of Rs. 3,80,000/-. Complainant paid sum of Rs. 3,50,000/- to the OP and as per the agreement the balance consideration price of Rs. 30,000/- was to be paid at the time of delivery of the possession and the registration of the deed. OP 1 was the land owner in the property who had entered into a development agreement with OP 2 to 4. As per the terms of the agreement for sale, possession of the shop room was to be handed over within 24 months from the date of obtaining the sanction of the building plan. But OPs have not handed over the possession of the shop room nor registered the deed and thus the present complaint has been filed praying for directing the OPs to execute and register the sale deed in respect of the shop room, to hand over the possession of the shop room, to complete the unfinished construction work, to hand over all documents relating to the land and the building, to hand over the completion certificate, to pay compensation of Rs. 2,00,000/- and to pay litigation cost of Rs. 10,000/-.

OP 2 to 4 have contested the case by filing written version denying and disputing the allegation contending specifically that the complainant purchased the shop room for business purpose and thus the complainant is not a consumer. The complaint had examined all the documents prior to execution of the agreement for sale. OPs have also denied that they are trying to transfer the shop room at a higher price and thus they have prayed for dismissal of the case.

OP 1 being the owner did not turn up on receipt of the notice and thus the case has been heard exparte against OP 1.

During the course of the evidence complainant filed examination in chief on affidavit followed by filing of questionnaire by the contesting OPs 2 to 4 and reply by the complainant. However, OPs 2 to 4 did not file any evidence / execution in chief and thus the case was fixed for argument. During argument complainant filed the brief notes of argument but contesting OP 2 to 4 did not take any step.

So the following points require determination

1. Whether the complainant is a consumer under provision of the Consumer Protection Act?.
2. Whether there has been any deficiency in rendering of service on the part of the OPs.
3. Whether the complainant is entitled to the relief as prayed for?

DECISION WITH REASON

Point No. 1 : It has been contended by OP 2 to 4 that the complainant is not a consumer as the shop room in question was purchased for commercial purpose. But in this context it is pertinent to point out that it has been categorically stated by the complainant in amended version of the complaint that he agreed to purchase the shop room to run the business for the purpose of earning livelihood. Even during the evidence in reply to the questionnaire filed by the contesting OPs 2 to 4, complainant has categorically stated that he agreed to purchase the shop room to run the business for the purpose of earning livelihood by way of self-employment. There is no material before this commission that the complainant is carrying business at a large scale to earn profit. So in the absence of any evidence that the complainant is carrying business in a large scale to earn profit, contention of the OPs that complainant is not a consumer cannot be accepted. Complainant is consumer within the explanation provided under the definition of consumer and thus this point is answered accordingly.

Point No. 2 & 3: Both these points are taken up together for discussion in order to avoid repetition. In support of his claim that he agreed to purchase a shop room by an agreement for sale dated 26/11/2012, complainant has filed the said agreement for sale. However, on perusal of the written version filed by the contesting OPs 2 to 4 being the developers, it is evident that the OPs have not disputed and denied the execution of the said agreement for sale dated 26/11/2012. It is also evident that the payment of Rs. 3,50,000/- out of total consideration price of Rs. 3,80,000/- has also not been disputed and denied by the OP 2 to 4. So it is apparent that in spite of payment of sum of Rs. 3,50,000/- out of the total consideration price of Rs. 3,80,000/-, neither possession of shop room has been delivered nor the deed of conveyance has been executed and registered in favour of the complainant in respect of the shop room as per the agreement dated 26/11/2012. The recital in the agreement is very categorical that the balance sum of Rs. 30,000/- was to be paid at the time of delivery of possession and registration of the deed of conveyance. It is the specific claim of the complainant that even though OP 2 to 4 have constructed G+3 storied residential building but they have not finished the construction of the shop room. If that be so than OPs who admittedly agreed to sell the shop room, are liable to hand over the possession of the same after completing the construction therein to the complainant and also to execute and register the deed of conveyance in favour of the complainant as per agreement. But we find no justification to pass any order for directing the OPs to hand over the documents and papers as the same suffers from vagueness. No specific names and nature of the document has been mentioned. However complainant is entitled to the compensation for non-delivery of the possession in time and also as complainant will have to bear the cost of registration as per present market value. So compensation of Rs. 40,000/- will be justified.

Hence

            ORDERED

CC/464/2019 is allowed on contest against OP 2 to 4 and exparte against OP 1. Opposite parties 2 to 4 are directed to complete the construction of unfinished work in respect of shop room and to hand over its possession to the complainant within 3 months from this date. All the OPs are directed to execute and register the deed of conveyance in respect of the shop room as described in 2^nd Schedule of the agreement for sale dated 26/11/2012 within the aforesaid period of 3 months. OP 2 to 4 are further directed to pay compensation of Rs. 40,000/- and Rs. 10,000/- as litigation cost within the aforesaid period of 3 months.