This appeal is directed against the judgment and final order passed by Ld. DCDRF, Darjeeling dated 15/11/2017 in reference to cc no. 6/D/2017. The appeal case in nut shell is that one Phurba Sherpa filed a consumer complaint before the Ld. DCDRF, Darjeeling, under section 12 of the CP Act, to the effect that Op no. 1 Padam Subba being a builder and also the managing director of Unique Builders having business of developing and sale of flats. Op no. 2 is the partner of the said business of Op no. 1. The complainant as an employee of Indian Railway and considering his forthcoming retirement intended to purchase a residential House and contacted the Opposite Parties and entered into an unregistered agreement with Opposite Parties to book a 700 sqf flat at the rate of rupees 1200 per square feet on the G+3 floor constructed by the Opposite Parties  at Dowhill Road, Kurseong and Op no. 1 has executed the said agreement by signing on it on 13/5/2011.

The Opposite Parties had assured at the time of agreement that the building would be constructed within a year and also handover the ownership by registered deed. The complainant has already paid rupees 1,50,000 on the date of agreement on 13/5/2011. Rupees 50,000 on 5/3/2012 and rupees 1,00,000 on 10/4/2015. By this time 6 years was already elapsed and the Opposite Parties has failed to deliver the possession of the flat to the complainant. As a result, the complainant had to make payment of rents for his personal accommodation in a rented accommodation. Further  case of the complainant is that after 6 years, the Opposite Parties was ready to handover only a flat in the residential complex covering only 300 sqf whereas as per terms and conditions of the agreement it was settled that the flat covering 700 sqf would have to be handed over to him by the Opposite Parties. So, he has become frustrated and filed this consumer complaint. The Op no. 1 has contested the case and admitted that he had entered into an agreement with the complainant to sale him a flat and rupees 3 lakh was received on his part as advance. The positive case of the Op is that he was always agreed and ready to handover the flat to the complainant as per terms and conditions of the contract after realisation of full amount of the price money which remained due  on the part of the complainant and the complainant was approached to make payment of balance amount but he did not pursue to have a registered sale deed by making payment of full and final balance of payment.

His further case is that due to some shortcoming he could not provide the flat in third floor and due to shortage of land in physical possession, the complainant was asked to exchange the flat in the top floor of the building but he has refused to exchange the same and for that reason, it was unable on his part to handover and deliver the possession of the flat in due time. The OP no. 2 did not contest the case. After recording evidences of all sides and after hearing the arguments, Ld. Forum has passed the impugned order directing the Ops jointly and severally to pay rupees 3 lakh  advance payment made by the complainant and rupees 5 lakh considering the increase of the price of real estate and including rents along with litigation cost rupees 10,000 and compensation for mental pain and agony rupees 15,000. The burden imposed upon the Opposite Parties total covering rupees 8,25,000/-. They were also further directed to deposit a sum of rupees 50,000 by way of demand draft towards the Consumer legal aid fund.

Being aggrieved with the said order, this appeal follows on the ground that the impugned order passed not vested in law without appreciating evidence in proper manner and has failed to understand the facts and circumstances of the case.

The appeal was registered by the OP no. 1 of the consumer complainant case that is Padam Subba before the Hon’ble State Commission, Calcutta Bench where the notice upon the complainant and  respondent no. 2 was issued. The notice of the memo of appeal was returned unserved. So the appellant was directed by the Hon’ble Commission, Calcutta Bench, to cause fresh service of notice upon the respondent no. 1 and 2 on his own instance and to furnish the service details. The Hon’ble State Commission, Calcutta has passed this order vide order no. 2 dated 14/3/2018. The said order was not complied on the part of the appellant and the appearance of the respondent could not be secured by the appellant before, State Commission, Calcutta Bench. Thereafter, at the instance of the appellant, hon’ble Commission, Calcutta Bench has reassigned the case to this Bench vide order no. 4 dated 6/9/2018. The Hon’ble State Commission, Calcutta Bench vide order no. 3 dated 9/7/2018 was pleased to pass interim order to stay the proceeding of execution case arises in reference to C no. 6/D/2017. After reassignment of the case here, the respondent Purbha Sherpha came to contest the appeal but on the other hand, the appellant did not come before the Commission, to hear the appeal on merit.

Repeated opportunities was provided to the appellant to hear his case but the appellant has failed to avail the opportunity for hearing of the appeal. So, the Commission, after hearing the respondent has decided the case on merit.

Decision with reasons.

Admitted position is that the appellant has entered into an agreement with the respondent Phurba Sherpa to sale a flat to him measuring 700 Sqf in the G+3 floor to be constructed at Dawhill, Kurseyong on 13/5/2011 and on that very date the respondent make payment of rupees 1,50,000 as advance.

Thereafter, the respondent on two different dates paid rupees 50,000 and rupees 1 lakh as part payment of the considering money of the flat and it was stipulated that within one year, the flat would be ready and possession would be delivered in favour of the respondent Phurba Sherpa but the appellant has failed to provide the said flat and at last he wanted to settle the matter by allotment of only 300sqf flat instead of 700 sqf which was completely refused to accept on the part of the respondent and thereafter this Consumer dispute was cropped up. The acceptance of rupees 3 lakh on the part of the appellant is not denied in written version and it is not denied on the part of the appellant that he wanted to settle the terms and condition of the agreement only providing a flat covering meagre 300 sqf instead of 700 sqf and there was reasonable ground to refuse in accepting said small flat on the part of the respondent, So the deficiency of service on the part of the appellant is clearly established and Ld. DCDRF, Darjeeling had no hesitation to hold that there was negligence and deficiency in service on the part of the appellant and for that reason, the complainant/respondent was well entitled to get the reliefs as provided in the provisions of the CP Act, 1986.

 Ld. Forum has observed that the appellant assured the respondent that he would deliver the flat within a year while he could not deliver the same till the date of consumer complaint dated 30/3/2017 and during this period more than 6 years, the respondent was compelled to provide his own accommodation in rental basis in a separate place and he had to suffer financially by making payment of rent compulsorily in spite of having an agreement to get possession of the flat within a year. For that reason, Ld. Forum has directed the appellant to pay another 5 lakh for the financial loss incurred by the respondent, by making payment of rents. This amount of rupees 5 lakh appears to be excessive one as because it is not acceptable that the respondent has paid rupees 5 lakh as rent for the 6 years that is between the date of agreement and date of filing the consumer complainant. His agreement was executed on 13/5/2011 and he had to wait for one year, that is up to May 2012.

So, the amount 5 lakh imposed by the Ld. Forum should be reduced to rupees 2.5 lakhs. The Op that is appellant and the proforma respondent no. 2  was directed by the Ld. Forum to make payment of rupees 50,000 by a Demand Draft towards the Consumer welfare fund also appears to very harsh one which should be reduced to rupees 10,000. The quantum of amount fixed by the Ld. Forum litigation cost and compensation for mental pain and agony and harassment found not to be excessive one and this order is hereby confirmed. Thus, the appeal is disposed of on its own merit as follows.

Hence, it is,

Ordered,

That the appeal be and the same is partly allowed on merit. The final order of Ld. Forum dated 15/11/2017 in reference to CC/6/D 2011 is modified to the effect that the appellant and respondent no. 2 are asked to make payment jointly and severally rupees 3 lakh, the advance money which they have received from the respondent no. 1 and the appellant and respondent no. 2 are also further directed to make payment of rupees 2.5 lakh instead of rupees 5 lakh jointly and severally to the respondent no. 1. The advance amount of rupees 3 lakh which was received by the appellant in 3 instalments and last instalments rupees one lakh on 10/4/2015 and for that reason, the interest for rupees 3 lakh should carry interest  at the rate of 6 per cent per annum and that amount of interest also shall be paid by the appellant and the respondent no. 2 jointly and severally and all these amounts that is rupees 3 lakh as advance money along with its interest at the rate of 6 per cent per annum since 10/4/2015 till its payment, the loss of the respondent to the tune of rupees 2.5 lakh in stead of 5 lakh and the litigation cost rupees 10,000 and compensation for mental agony of rupees 15,000 are to be paid within one month from the date of receiving the copy of final order of this appeal, failing which another interest at the rate of 6 per cent per annum to be carried on over the entire decretal amount.

The direction of the ld. Forum for making deposit in C.W.F is reduced to rupees 10000 and that has to be paid by one month from the date of receiving the copy of appellate order.

Let a copy of this order be supplied to parties free of cost and also to be sent to Ld. DCDRF, Darjeeling, by e-mail.

The order of stay in reference to execution case is hereby vacated.