Date of filing : 29/10/2018

Date of Judgement : 20/12/2022

Mrs. Sashi Kala Basu, Hon’ble President.

This consumer complaint is filed by the complainant, Smt. Reba Dey u/s 12 of the Consumer Protection Act, 2018 against the O.P.s (referred as OPs hereinafter) namely 1) Sri Rajat Burman 2) Dipali Hore 3) Soumen Hore & 4) Smt. Sarbani Hore alleging deficiency in service, on the part of the O.P.

The case of the complainant, in short, is that OP 1, being the Developer and OP 2 to 4, being the Owners entered into a Development Agreement and consequent to the same by an Agreement for Sale dt. 19/1/2015, O.P. 1 being the Developer and also the constituted attorney of the owners, agreed to sell a flat as described in the schedule of the agreement to the complainant at a total consideration price of Rs.16,00,000/-.  Complainant has paid a total sum of Rs.7,70,000/- out of the said Rs.16,00,000/-, but O.P. failed to complete the subject flat and has not handed over the possession of the said flat nor the deed has been executed in favour of the complainant.  The complainant has always been ready and willing to pay the balance consideration price, but O.P., inspite of the several requests, has failed to handover the possession of the flat and thus the present complaint has been filed by the complainant praying for directing the O.P.s to execute and register the sale deed in favour of the complainant in respect of the subject flat, to deliver the possession of the same and to issue the completion certificate, to pay compensation of Rs.2,00,000/- and litigation cost of Rs.50,000/-.

On perusal of the record it appears, even though OP 1, on receipt of the notice, appeared on 17/1/2019, but subsequently failed to file any written version within time.  Other O.P.s did not take any step.  So, the case proceeded exparte against all the O.P.s

During the course of the trial, complainant filed affidavit-in-chief and also filed the Brief Notes of Argument.

So, the only point requires determination is that whether the complainant is entitled to the relief as prayed for. 

Decision with reasons

In support of her claim that an agreement was entered into between her and the O.P. 1 as Developer and constituted attorney of the OP 2 to 4, complainant has filed the said agreement dt. 19/1/2015 wherefrom it appears, consideration price for the flat as specified in schedule of the said agreement was fixed at Rs.16,00,000/-.  Complainant has claimed that out of the said price of Rs.16,00,000/-, she has paid Rs.7,70,000/- and has always been ready and willing to pay the balance consideration price.  From the Memo of Consideration in the said agreement entered into between the parties, it reveals that a sum of Rs.2,40,000/- was paid till the date of the said execution of agreement.  Complainant has also filed the three receipts dt. 22/1/2015, 19/1/2015 and 19/1/2016 wherefrom it appears, an amount of Rs.1,10,000/-, Rs.1,00,000/- and Rs.2,20,000/- respectively has been paid by the complainant and on receipt of the same, OP 1 the Developer has issued those receipts.   So, it is evident that the complainant has paid a total sum of Rs.7,70,000/-.  It also appears that subsequently by declarations dt. 19/9/2016 and 11/11/2017 O.P. No. 1 undertook and assured the complainant to handover the possession of the flat within a specific period as mentioned in those documents.  It is claimed by the complainant that inspite of those documents and repeated assurances, the O.P. failed to handover the possession.  Complainant has also filed a copy of the possession letter, but it has been specifically claimed that no actual possession was handed over by the O.P. 1.  The said letter of possession also does not reveal any date barring the signature of O.P. 1.  The alleged letter of possession does not bear the signature of the complainant.  On consideration of any contrary material before this commission and also considering the two declarations as referred to above by the O.P. 1, specifying the date therein to handover the possession, the claim of the complainant that the actual possession of the flat therein has not been handed over, cannot be discarded.  It appears from the record that during the trial on the prayer of the complainant, a commission was also directed to be held by an Advocate Commissioner who, on inspection has submitted the report that the inspection could not be held by him as the flat was under lock and key.  So, as the complainant has claimed that she has always been ready and willing to pay the balance consideration price, in the absence of any contrary material before this commission, complainant is entitled to the relief of directing the O.P.s to handover the possession of the subject flat on receiving the balance consideration price and to execute and register the deed in favour of the complainant.  Complainant is also entitled to the compensation as she will have to pay the cost towards registration of the deed as per present market value.  It will not be out of place to mention here that the complainant has filed copy of two cheques issued by OP No. 1, which indicates that both the cheques of Rs.4,00,000/- lakh each were dishonoured by the bank on its presentation on the ground of Fund Insufficient.  So, it is evident that OP has neither handed over possession of flat nor refunded the sum paid by the complainant.

Hence,

            ORDERED

CC/611/2018 is allowed exparte.  O.P. 1 is directed to deliver the possession of the flat to the complainant in a habitable condition within 3 months from this date, on payment of balance consideration price of Rs.8,30,000/- by the complainant to the O.P. 1, the Developer.  All the O.P.s are directed further to execute and register the deed of conveyance in respect of the flat in favour of the complainant as per agreement dt. 19/1/2015.  O.P. 1 is further directed to pay compensation of Rs.40,000/- and litigation cost of Rs.10,000/- to the complainant within the aforesaid period of 3 months.